Australia is collecting more metadata per capita and issuing more warrants to intercept communications than the U.S, UK and Canada, according to a new report.
University of NSW business law lecturer and research fellow Dr Rob Nicholls has collected and analysed publicly available data from the four countries between 2005 and 2015. In presenting his findings to the Australian Political Studies Association Conference on Monday, he claimed Australia is "putting national security interests ahead of privacy concerns", and that the vast majority of metadata access is used for drug crimes, not terrorism or security operations.
Metadata is the background technical information around a communication; the time and date of a call, how long it lasted, the IP address of a webpage that an internet user browses to and email addresses, but not a recording of the actual content of the call or website visited (for a more detailed explanation, click here). In 2015, the government passed controversial laws that made it compulsory for telecommunications providers to retain metadata from their users for at least two years. Attorney-General George Brandis famously compared metadata to a letter in the post; "The metadata is the name and address on the envelope, not the content of the letter".
"Increasingly, particularly in internet-based communications, the stuff on the envelope can be almost as useful [as the content] from an intelligence perspective," Nicholls told The Huffington Post Australia.
Much of the government's arguments and case for instituting the laws centered on the potential for such data, if available to law enforcement, to thwart terrorist attacks. However, Nicholls said those cases were in the minority of the uses of metadata.
"It's major crime that dominates, and drugs crime. What we find is, for [telecommunications] interceptions, terrorism is at the most something in the order of three or four percent of warrants. Drug crime is 60 percent, that's common in all jurisdictions," he said.
"If you just outlined that to the Australian people, they would say that response to drug crime is a credible and reasonable, proportionate response. Linking [data retention] to terrorism and national security is playing to a fear that shouldn't be played to."
In 2013-14, there were 314,587 authorisations "made by a Law Enforcement Agency for access to existing information or documents in the enforcement of a criminal law" in Australia, according to a report published on the Attorney-General department's website. Nicholls said this compared to the UK with 570,135 authorisations, only 1.8 times the amount of authorisations in Australia, despite the fact the UK has 2.8 times the population of Australia.
In a statement to HuffPost Australia, the Attorney-General's department defended Australia's data retention scheme and the circumstances in which the information is used.
"Metadata is a critical tool for our law enforcement and security agencies in their fight against terrorism, espionage, organised and major crime, and child abuse and child exploitation," the department said in the statement.
"Telecommunications companies have always retained metadata and law enforcement agencies have been permitted access to these records for decades. The Government's data retention legislation introduced in October 2015 simply standardised the type of data telecommunications companies are required to retain and the length of time they need to keep it. The legislation also introduced a number of safeguards and reduced the number of agencies accessing metadata from over 80 to 21."
"Australia, Canada, the UK and the U.S. have very different regimes around metadata access and retention, making it difficult to draw meaningful comparisons between these jurisdictions."
Nicholls also collected information about interception warrants. The same Attorney-General's report outlines that "interception warrants can only be obtained to investigate serious offences" generally carrying a penalty of at least seven years' jail (including murder, kidnapping, serious drug offences, terrorism child pornography and organised crime), and that "interception warrants are highly privacy intrusive and are only sought when operationally necessary".
Nevertheless, in every year between 2005 and 2014, Nicholls says Australia issued more interception warrants than the U.S, UK and Canada. Not just on a per capita basis of population, but in real terms; for example, in 2013, Australia issued 4,232 warrants, while the UK issued 2,760 and the U.S. issued 3,576. In 2015, the only year surveyed where Australia did not lead the tally of interception warrants, the U.S. issued 4,148 while Australia had 3,926.
In 2014-15, of the 4,127 interception warrants in Australia, 1,901 were in relation to serious drug offences; 420 for murder; 53 for kidnapping; 165 for fraud; and 121 for terrorism offences. The Attorney-General's report claimed that led to "3,100 arrests, 4,686 prosecutions and 1,912 convictions based on lawfully intercepted material".
Nicholls said the different countries had different laws around the use of interceptions, which may account for some of the disparity in statistics, but said the numbers were stark.
"I wouldn't want to say it means anything other than law enforcement agencies are enthusiastic about the use of these powers," he admitted.
"I don't think we've found a good balance... it's not proportionate."