Allow me to plagiarise myself. In March 2015, the Telecommunications (Interception and Access) Act, which would force telcos and ISPs to store two years’ worth of metadata for all Australians so that our spies, cops and toll collectors can access it for “investigative” purposes, was about to pass the Senate and become law with the willing connivance of both major parties.
I wrote this:
A last minute deal was stitched together to address the media’s complaints that the police will grab their data so they can identify their sources, particularly whistleblowers and other people the government of the day or the cops themselves don’t like. Anonymous sources being the life blood of the journalism profession, after all.
And then we all went back to sleep. Our metadata didn’t, however, and nor did the enforcement agencies that had been keenly eyeing the treasure trove of information that our typing fingers and location services constantly produce. They have been hard at it ever since.
We know that the Australian Federal Police has journalists in its gun sights, after their spectacular self-owns in the ABC’s boardroom and Annika Smethurst’s house. Notwithstanding Attorney-General Christian Porter’s protestations that nobody’s interested in prosecuting journos, the AFP clearly has that in mind.
We know also that in 2017-18 the AFP obtained two warrants to access journalists’ metadata and used those warrants 58 times.
Stitching together the few strands of information we are allowed to know or which have leaked out, it’s beyond doubt that there is a broad governmental intent using the AFP (and probably ASIO) to monitor journalists. They are the conduit between the truth tellers and the public; in other words, from a government perspective, the leaky pipe.
Not very long ago, we would not have imagined being a country in which the AFP would casually require Qantas to hand over the personal travel records of an ABC journalist and think that that was just fine; but here we are. They did that, and Qantas complied.
The ABC journalist in question happened to break the Afghan Files. Has his metadata also been accessed by the AFP? We don’t know. Would the special “journalist information warrant” regime inserted into the law in 2015 prevent that from happening? No.
For ordinary punters, our metadata is basically freely available to the 20 enforcement agencies who have been given that power. For journalists, however, there is a different set of rules. Apart from ASIO (which has to ask the AG), the agencies can’t access their metadata unless they get a special warrant from a judge or magistrate, who is required to balance the public interest in giving the warrant against the public interest in not giving it. Pretty oblique, but critically the factors militating against a warrant being granted do not include protection of confidential sources or the principle of a free press.
As we learned from how the AFP went about getting its search warrant against the ABC, the judicial approval requirement is only as good as the diligence of the person being asked the question. Sadly, that’s not the level of protection we would tend to assume or should be able to expect.
Then there is the Public Interest Advocate (PIA). This is a senior lawyer appointed by the AG, whose role is to argue for the public interest before any journalist warrants are issued. The PIA must be informed of any warrant applications, and must be heard (if they want to be) before a decision is made.
The PIA is not there to represent the journalist’s rights, and the public interest isn’t framed in terms of rights at all. The PIA operates in secret and nobody gets to know what they did or didn’t say. The targeted journalist gets no notice of the process whatsoever, and will never even hear about it once a warrant has been granted because this is metadata, not a USB stick hidden in their underwear drawer.
The Department of Home Affairs is required by law to publicly report each year how many times the metadata of Australians has been accessed, including journalists. It has failed to report for the 2017-18 year, which ended over a year ago.
Actually we have no idea how often the metadata law is being used. We have no idea how and how often it is being used to target journalists. We have no idea how many journalist warrants have been issued or are currently being executed. Almost everything we do know has come out from either leaks or the clumsy public antics of the Federal Police.
There is no reason for the media to be comforted by the special “protections” it was given in 2015. They provide only a fig leaf, and an invisible one at that.
By the way: it remains a criminal offence, punishable by two years’ prison, to use or disclose any information at all relating to a journalist information warrant, including its existence or non-existence.
I found it pretty funny back in 2015 that you could be jailed for talking about a search warrant that doesn’t exist. Less amusing now.