Journalist Information Warrants
On Friday April 28 2017 Australian Federal Police Commissioner Andrew Colvin revealed that an AFP officer had accessed a journalist’s telecommunications data without seeking or being granted a Journalist Information Warrant — a breach of the Telecommunications Interception Act which had been passed by the Parliament 18 months earlier.
Colvin said the breach had occurred “within our professional standards regime; our internal investigations area”. Colvin said the officer had “sought… gained and was provided access” to about a week’s worth of a journalist’s telecommunications data — the records were in relation to calls made earlier in 2017: one phone number to another phone number. The breach occurred while AFP officers were hunting for the journalist’s confidential sources relating to a news story that involved a “leak” to the journalist. Colvin said there was no suggestion the journalist had committed an offence.
Colvin said that the AFP had notified the Commonwealth Ombudsman of the breach on Wednesday April 26 — Colvin did not disclose when the AFP became aware its personnel had broken the law. Several officers had seen the data. Colvin said the breach was a “human error” and that no disciplinary action would be taken against his officers.
The journalist whose telecommunications data had been accessed had not been informed of the breach.
The Ombudsman would subsequently launch “audit” of the breach. The data that had been gathered had been destroyed, Colvin said, and the AFP would be conducting a review. The leak investigation at the heart of the breach was ongoing.
Responding to the AFP’s breach of the Act, MEAA CEO Paul Murphy said “It’s another demonstration that the AFP does not understand the sensitivities here, the vital importance of protecting journalists’ confidential sources. It’s an absolute disgrace. Despite all of the requirements put in place before a Journalist Information Warrant can be granted, the system has failed. It’s breathtaking the admission from the AFP. There is absolutely no respect for: the public interest, whistleblowers coming forward, investigative journalists being able to do their work. There is no respect for journalists’ essential need to protect their confidential sources. The AFP itself did not even know it had to go through the process of a Journalist Information Warrant application. It is beyond belief.
“The parliament needs to revisit this legislation. It was cloaked in ‘national security’ [when it was introduced] but all the instances we have seen of the AFP seeking to access journalists’ metadata have nothing to do with national security. They only have something to do with stories that embarrass the government and an attempt to track down whistleblowers.
“This is an attack on press freedom. It demonstrates that there is very little understanding of the press freedom concerns that we have been raising with politicians and law enforcement officials for several years now. The use of journalist’s metadata to identify confidential sources is an attempt to go after whistleblowers and others who reveal government stuff ups. This latest example shows that an over-zealous and cavalier approach to individual’s metadata is undermining the right to privacy and the right of journalists to work with their confidential sources. This breach has been revealed just days before UNESCO World Press Freedom Day and that should be the opportunity for Australia’s lawmakers to do more than just talk about freedom of speech but to ensure that press freedom is properly protected and promoted.”
The introduction of mandatory metadata retention contained in amendments to the Telecommunications (Interception and Access) Act 1979 was passed by the parliament with bipartisan support. The amendments require telecommunications companies and internet service providers to collect and retain your telecommunications data.
From October 13, 2015 telecommunications companies were given 18 months to develop plans to retain the telecommunications data of their customers for two years in order to enable at least 21 government agencies to access the data in secret. On Thursday April 13 2017, all telecommunications companies were required to retain the data.
The regime is a particular concern for journalists who are ethically obliged to protect the identity of confidential sources. MEAA’s Journalist Code of Ethics requires confidences to be respected in all circumstances.
The new regime secretly circumvents these ethical obligations and allows government agencies to identify and pursue a journalist’s sources (without the journalist’s knowledge); including whistleblowers who seek to expose instances of fraud, dishonesty, corruption and threats to public health and safety.
MEAA and media organisations have repeatedly warned politicians of the threat to press freedom in these laws. At the last minute, parliament created a so-called “safeguard” — the Journalist Information Warrant scheme and, as part of the scheme, a new office was created: the Public Interest Advocate.
However, the scheme is no safeguard at all; it is merely cosmetic dressing that demonstrates a failure to understand or deal with the press freedom threat contained in the legislation:
- The Journalist Information Warrant scheme was introduced without consultation.
- It will operate entirely in secret with the threat of a two-year jail term for reporting the existence of a Journalist Information Warrant.
- Public Interest Advocates will be appointed by the Prime Minister. Advocates will not even represent the specific interests of journalists and media groups who must protect the confidentiality of sources.
- There is no reporting or monitoring of how the warrants will operate.
- Journalists and media organisations will never know how much of their data has been accessed nor how many sources and news stories have been compromised.
At the time when the legislation passed in the parliament MEAA said:
“These laws are a massive over-reach by the government and its agencies. They make every citizen a suspect, seek to intimidate and silence whistleblowers, and crush public interest journalism. We ask the Prime Minister to urgently review this and the earlier tranches of national security legislation, to restore a proper balance between free speech and security.”
In the case of journalists and their journalism, it is clear that the amendment to the act has nothing to do with being a counter-terrorism measure; it is designed to pursue whistleblowers by using journalists’ relationships with confidential sources to track them down.
The Journalist Information Warrant scheme is a threat to journalism.
On February 28, 2017 the Director-General of Asio told a Senate Estimates hearing that Asio had been granted “a small number” of Journalist Information Warrants.
What metadata is retained?
In the year 2013–2014, before the recent amendments, there were more than 334,000 authorisations granted to 77 government agencies allowing them to access telecommunications data.
The new scheme, for the most part, is warrantless (the exception are the Journalist Information Warrants). Access is currently limited to 21 government agencies but this can be expanded. This is what they can get access to:
- Your account details.
- Phone: the phone number of the call or SMS; the time and date of those communications; the duration of the calls; your location, and the device and/or mobile tower used to send or receive the call or SMS.
- Internet: the time, date, sender and recipient of your emails; the device used; the duration of your connection; your IP address; possibly the destination IP address (if your carrier retains that information); your upload and download volumes; your location.
Journalist Information Warrants will be required if a government agency wants to access a journalist’s telecommunications data or their employer’s telecommunications data for the express purpose of identifying a journalist’s source.
A government agency must apply to a judge of the Federal Court or a member of the Administrative Appeals Tribunal (AAT) (known as the issuing authority) for the warrant.
The 21 government agencies include the anti-corruption bodies that already have star-chamber powers, as well as Border Force, the Australian Securities and Investments Commission and the Australian Crime Commission, and state and federal law police forces. ASIO doesn’t have to front a court or tribunal; it can apply for a Journalist Information Warrant directly to the attorney-general.
A “journalist” is defined as “working in a professional capacity”, i.e. having “regular employment, adherence to enforceable ethical standards and membership of a professional body”.
Journalists left in the dark
A journalist can never challenge a Journalist Information Warrant. Everything about Journalist Information Warrants is secret. Even if someone should discover a warrant has been issued, reporting its existence will result in a two years jail.
In short, journalists and their media employers will never know if a warrant has been sought for their telecommunications data and will never know if a warrant has been granted or refused. Not even their telecommunications company will be told a warrant has been issued; the data will be accessed without the telco that retains it having to confirm that a warrant has been issued.
Public Interest Advocates
The Journalist Information Warrant amendment also created Public Interest Advocates. Appointed by the Prime Minister of the day, they will be people with a legal, not a media, background and with high level security clearance.
They cannot be commonwealth or state/territory employees (or office holders if there is an apparent conflict of interest). A question arises about whether any role in engaging in defamation matters or suppression orders would disqualify them.
A Public Interest Advocate will be required to submit all facts and considerations against the issuing of a Journalist Information Warrant. Importantly, the advocates do not “stand in the shoes” of the journalist or media organisation to argue the public interest as a journalist or media employer might. They are not a “safeguard” for journalists, they do not “act for journalists”.
Indeed, Attorney-General George Brandis is of the view that a Public Interest Advocate will not play the role of a “contradictor” but will play the role of an amicus curiae (“friend of the court” who offers information to assist the court but who is not solicited by any party).
The role of the advocate (as stated in Regulation 9 (2)(a)(i) is to “place before the issuing authority all facts and considerations which support a conclusion that a Journalist Information Warrant should not be issued”. How this can be reasonably done without any reference to the journalist or their media organisation is a concern.
If the chosen Public Interest Advocate is unable to appear or make a submission to the issuing authority, an alternate PIA will be found.
The Journalist Information Warrant allowing access to a journalist’s or media organisation’s telecommunication data will be issued if “the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of journalists’ source”.
All of those appearing before the Federal Court judge or the AAT member will be appointed by the government or Prime Minister. There is no one to argue in defence of the public interest from the media’s perspective or from the confidential source’s perspective.
How it will work
Government agencies will approach an issuing authority (or the attorney-general in the case of Asio and the Director-General of Security in an emergency if the minister is unavailable) to seek access to a journalist’s telecommunications data for the purpose of identifying a confidential source.
A Public Interest Advocate (PIA) will be appointed to the matter within seven days. The advocate will determine whether to make a submission or attend a hearing, or will advise whether they are unable to do so.
Warrants could still be granted without a Public Interest Advocate’s submission or attendance but if they are unable to do the work it’s likely another Prime Minister-appointed PIA will be found. The government agency’s relevant minister or the issuing authority may also seek additional information from the agency about why the warrant is sought.
A Journalist Information Warrant remains in force for up to six months. Its scope can include the entire cache of your telecommunications data that has been retained over two years — in one giant “fishing expedition” trawling through the journalist’s metadata in the hunt for sources, thereby exposing every source.
Neither the journalist nor their media employer will ever know:
- how much telecommunications data has been accessed,
- how many sources and how many news stories have been compromised, and
- whether a warrant has up to six months left to run or when it will expire.
Perhaps the only time a journalist will know something happened is when their confidential source is being prosecuted.
Public Interest Advocates appointed
In January 2016, it took a request under Freedom of Information to reveal[i] that Prime Minister Turnbull had already appointed two Public Interest Advocates.
It appears that former Supreme Court judges Kevin Duggan and John Muir[ii] have no particular media experience to argue the public interest. Nor do they have particular experience in media law or defamation[iii].
“The office of the Attorney-General George Brandis defended the appointments in a written statement provided to the ABC. A spokesman said Justices Duggan and Muir are experienced in complex legal reasoning and well placed to consider and make submissions on competing public interest arguments.”[iv]
The concern is that none of the parties affected by their legal reasoning will ever learn how persuasively or competently they argued.
[i] http://www.abc.net.au/news/2016-01-25/ex-judges-appointed-to-defend-journalists/7112256
[ii] http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-appoints-exjudges-to-defend-journalists-under-data-retention-laws-20160124-gmczxg.html
[iii] http://www.crikey.com.au/2016/01/25/meet-the-judges-turnbull-trusts-to-secretly-advocate-for-journos-sources/
[iv] http://www.abc.net.au/news/2016-01-25/ex-judges-appointed-to-defend-journalists/7112256
