The rapid expansion of telecommunication technology has changed how we operate as a society. Borders are no longer an obstacle, and we’re communicating globally at a pace never experienced before. Data has inundated our world, and since the Paris attacks, data retention has returned to the hot topic list.
New communication methods bring about new ways of doing things. For starters, keeping in touch with friends and family world wide is much easier. But so is the risk of illegal activity - including the threat of terror.
This is where data retention comes in. Governments worldwide are under immense pressure. They need to find a delicate balance between protecting democratic liberties and keeping society safe from terrorism. This is not a new challenge.
This blog explains what metadata is and why it may be necessary for governments to access it. It will look at Australia’s current approach to data retention and will explore a possible middle-ground between protecting human rights and preserving public safety.
Understanding data retention and metadata
Data retention is a log of an individual’s telecommunication interactions. A part of data retention is metadata. Metadata is the data about the data. It’s the footprint left behind when using telecommunication technology. For example, it's the time and location a person made or received phone calls, emails or text messages. Metadata does not include the content of those communications. Metadata is not what the messages said or what the conversation entailed.
Managing a difficult balancing act
Governments want their agencies to have access to metadata in a bid to prevent acts of terror and other illegal activities, such as internet crime. Gaining access to this data is not easy as it must be carefully weighed up against protecting an individual’s right to freedom of expression.
Laws created by some governments have been criticised by human rights groups and mainstream media as being ‘reminiscent of a Big Brother style of surveillance’, while governments argue that it’s a necessary step in a world facing increasing security threats - both in the physical and virtual world.
For governments it’s a difficult balancing act; they want to keep their citizens safe, solve crimes and pre-empt an attack while also maintaining their citizens’ democratic freedoms.
Data retention in Australia
In 2015 the Abbott Government successfully passed the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015.
Under the Act, all telecommunication companies must keep metadata for at least two years. The data kept ranges from; whom the account owner is, the location the call initiated, the duration of the call and who was called etc.
A total of 22 Australian government agencies, including Australian Security Intelligence Organisation (ASIO), the Australian Crime Commission, state police and the Australian Taxation Office, have access to this data without a warrant. Enabling these agencies to retrieve metadata without requiring a warrant is supposed to avoid operations coming to a hault.
While the bill was passing through Parliament, human rights groups voiced concerns. They believed the new law could impose on Australian citizen’s rights to freedom of expression and right to privacy and warned of potential misuse that could occur if authorities had unprecedented access to telecommunication records.
The case for granting access to metadata
Government access to metadata could serve as a counterterrorism measure. The horrific attacks in Paris reignited the metadata debate and serve as an example. If governments had access and could monitor metadata, they might have prevented the 130 deaths and hundred more serious injuries.
A short time after the attacks, American Central Intelligence Agency Director, John Brennan, warned it is “much more challenging” for intelligence agencies to find terrorists nowadays. He blamed the privacy protection acts brought in after data leaks by whistleblowers such as Edward Snowden.
There’s debate about how the terrorists who carried out the attacks communicated, some believe the attackers used encrypted channels, making it hard for investigators. Others believe the channels were unencrypted. Regardless of what channels the terrorists used, their communication went undetected by officials.
Despite this, the argument still remains: if the government was able to decrypt and track the suspected terrorists, could the attack have been prevented?
Solving crimes and investigations
State and federal police having access to metadata to solve investigations also has merit. Access to a suspect's phone records can help prove a suspect was in the area at the time of an attack to provide just one example. Information such as this can help unravel a criminal case and put perpetrators behind bars.
But it can further help put the bigger puzzle together — the data can reveal who else was in on the crime. When catching drug suppliers police often track the 'big fish' by monitoring the smaller dealers and working up the chain. Here, metadata can help link criminal group members together and assist in establishing a pattern.
The case against granting access to metadata
Freedom of expression
Some argue that granting government's access to metadata may result in citizens self-censoring their views because they know that they are being ‘watched’. This would impose on the human right to freedom of expression.
The media also expressed concern that whistleblowers would be less likely to come forward and speak to journalists. They argued that confidential sources could be compromised if government agencies could access journalists phone and email records.
Fear of ‘Big Brother’ style government surveillance
In 2013, Edward Snowden, leaked classified surveillance documents from the NSA. These classified documents contained confidential information from many spy agencies around the globe. Snowden made some of these documents available via Wikileaks, while also filtering stories to journalist Glenn Greenwald over a period of time.
The leak exposed the extent of America’s National Security Agency’s surveillance programs including PRISM. PRISM gives select US Government agencies access to some of the biggest tech company servers in the world. The leak also exposed a surveillance program monitoring international government figures such as the Chancellor of Germany, Angela Merkel.
Snowden’s actions were equally praised and condemned. His whistleblowing revelations of surveillance practices were important for the world to know, and they exposed how some security agency tactics can go too far. Yet, these information leaks also left the US government vulnerable, and weakened their intelligence service.
Giving up our freedom for security - is there a middle ground?
A middle ground must be found. Government agencies need to keep citizens safe, but privacy and freedom of speech are the major defining factors in a democratic existence. There needs to be a compromise.
It's clear government security agencies need to be armed with the technology and tools to combat terrorists and criminals. There’s no doubt terrorists and criminals do not adhere to the rules or laws to protect law abiding citizens. But the agencies employed to protect law-abiding citizens also need to have the know-how to best use the tools. Extensive training and a comprehensive understanding of what can legally be accessed needs to be employed across the board. Then this access and usage needs to be monitored to prevent misuse.