The Metadata Minefield

Despite there being little or no evidence on the effectiveness or usefulness of mass data retention in jurisdictions where it has been implemented, our current Australian government seems determined to steamroll legislation through the parliament to introduce it here.

For its part, despite some noises against the idea, the current opposition Labor party – (the party that brought us that dumbheaded idea of a mandatory internet filter) – seems at least – (although wavering) – to be fairly open to the idea also, with some caveats.

“The letter, obtained by Fairfax Media, comes despite reports last week that Labor would “roll over” and support the bill as long as there were amendments in it that protected whistleblowers and journalists.”

On the surface, the protection of whistleblowers and journalists seems like a noble stance to take, but exactly what form would that ‘protection’ take?

The problem with ‘protecting’ whistleblowers with respect to this is actually pretty simple.

How will the authorities know who a whistleblower is, until they’ve actually blown their whistle?

Presume for a moment Edward Snowden was an Australian citizen who would have this legislation applied to him.

Until he actually acted in leaking information as a whistleblower, since he wouldn’t be known to the authorities as a whistleblower, he would apparently be afforded no protection.

Because technically until that moment of blowing, he’s not a whistleblower. Do they then throw out any and all data collected in relation to him?

I bet I know the answer to that.

And what about who he ‘whistleblew’ to? Of course, that would be a journalist, who would supposedly also be protected.

So would a Labor-supported version of the legislation include provisions to automatically exclude the communications associated with a recognised journalist?

I bet there would be a sudden upswing in the number of people applying to journalism courses around the country.

Consider the following.

Edward ‘Aussie’ Snowden – (who, remember, we don’t know is a whistleblower yet) – calls journalist Glenn ‘Aussie’ Greenwald with the information he wants to leak. Snowden’s communications are being captured, Greenwald’s are not.

The collected data still shows that Snowden called Greenwald, because Snowden is in the default dragnet.

It would’t matter what ‘protections’ are supposedly in the legislation.

Greenwald publishes without revealing his source. The authorities look up who has communicated with Greenwald, without specifically looking up Greenwald’s communications, and Snowden’s name shows up.

Who was protected here?

Presuming there was a good reason to introduce mandatory data retention – (and I’ve not heard a good reason yet) – getting it ‘right’ and having reasonable protections in place will be all but impossible.

There will be so many corner cases – (like my hypothetical here) – where even the best intended ‘protections’ will still fail the test of protecting those who need to be protected.

It will be a minefield.