The planned amendment to the Australian Coalition’s data retention bill has sparked debate about the scope of the protection offered and how it will work.
Australian Prime Minister, Tony Abbott, has agreed to provide additional protections to journalists and their sources by compelling government agencies to seek warrants before accessing journalists’ metadata in attempts to identify sources.
The deal appears likely to secure the passage of the federal government’s data retention scheme – with the support of Labor – that will force telecommunications companies to store certain types of phone and web data for two years.
The details are vague at the moment, with both parties only saying they will agree to an amendment that will “require agencies to obtain a warrant in order to access a journalists’ metadata for the purpose of identifying a source”. This hasn’t been drafted but has sparked all kinds of questions – and some criticism – about the scope of such protection and how it will work.
The amendment will need to answer some key questions to explain how journalists’ sources could be protected.
1. What is a journalist?
Trying to define journalism in law is not an easy task. The craft has taken on an increasingly amorphous form and the first response to the prime minister’s concession on metadata has been for people to ask who would be entitled to protection.
It’s a little bit 1990s, but some of the questions being thrown around have included: are bloggers journalists? Do people need to be paid professionally? And would an isolated act of journalism – say, publishing a bunch of documents on a website for the purposes of the public understanding an issue better – be enough to gain protection?
Many courts have tried to define journalism, even looking back almost a century ago. In an early US supreme court case, Lovell v City of Griffin, the court considered whether a woman who was pamphleting without permission should be offered the same form of protection as the press.
The court said in its judgment that “the press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion”.
Australia grappled with this issue when it changed the Evidence Act 1995 to enhance shield protection for journalists. This says a journalist is anyone “who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in anews medium”.
The existence of such a definition in some parts of commonwealth law could be a place to start for the government in considering the amendment, a point the independent senator Nick Xenophon made on Tuesday.
2. If confidential information is published by a journalist, will agencies that choose to investigate still be able to access the metadata of anyone else they suspect of involvement without a warrant?
Journalists provide a good starting point for agencies when hunting down sources but they’re rarely the only way in. If a leak occurs that an agency isn’t happy about it might try to identify suspects in other ways. If only a few people had access to the material, it could draw up a shortlist of possible sources then start requesting access to their metadata instead of the journalist’s.
If the amendment only applied to access to the journalist’s phone records this practice may still be permissible without a warrant, which would provide a fairly substantial loophole for government agencies.
3. Do journalists need to be told if a warrant is sought for their metadata and can they challenge it?
Access to journalists’ metadata – or anyone’s for that matter – is a closely guarded secret. There are broad secrecy provisions that prevent agencies from confirming or denying the existence of authorisations to gain access to journalists’ metadata. Journalists have tried to obtain documents about this kind of information under the Freedom of Information Act 1982 and the Privacy Act 1988 but they’ve been knocked back.
Usually the only time information is revealed is in the course of criminal proceedings – such as in the case of Allan Kessing, a customs officer who was prosecuted for disclosing commonwealth information about Sydney airport security procedures.
In Britain a lot of information has emerged about access to journalists’ phone records in the course of reports by police and other oversight bodies, with revelations that police obtained the phone records of senior staff at the Sun.
An argument being put forward by the the journalists’ union, the Media, Entertainment and Arts Alliance, and some news organisations is that they should be given an opportunity to know about a warrant and challenge it in court. This could give a greater opportunity to have the issue considered by a court with an advocate representing the journalist.
4. Will the Australian Security Intelligence Organisation – which falls outside the authorisations regime that is generally discussed – be subject to the same requirements for a warrant?
Investigations into confidential sources aren’t limited to law enforcement agencies. Asio has different powers to access metadata. Unless those powers were specifically amended it probably wouldn’t be affected by any changes to the laws on access to telecommunications data by enforcement agencies.
5. Why not make an exemption for journalists?
The MEAA has criticised the prime minister’s plan, saying it doesn’t go far enough. It argues that an exemption must be made for journalists so that telecommunications companies cannot be forced to disclose information about them, even with a warrant.
The attorney general, George Brandis, has described the union’s concerns as “outrageous hyperbole” and rejected them.
The MEAA’s chief executive, Paul Murphy, said: “Accessing metadata to hunt down journalists’ sources, regardless of the procedures used, threatens press freedom and democracy. It means important stories in the public interest can be silenced before they ever become known, and whistleblowers can be persecuted and prosecuted.”
source: The Guardian.