Journalists whose data has been secretly trawled by law enforcement agencies are unable to determine if they have been the subject of search warrants because it would breach their own privacy, the commonwealth ombudsman has argued.
It comes after a four-year battle by Guardian Australia to obtain such warrants, and has led to renewed calls for the warrant scheme to be scrapped.
The metadata retention laws, introduced in 2015, allow law enforcement agencies to access telecommunications data including call records, IP addresses and other metadata when investigating certain offences. Journalists’ data can also be accessed, but only with a special warrant.
The ombudsman’s role is to monitor how agencies are accessing stored communications under the law, including reviewing the use of the journalist information warrants.
While disclosure of the existence of the warrants is prohibited under the metadata law – to the point where journalists and media outlets are not informed if they are subject to the warrant – information about the warrants has been revealed through the ombudsman’s review process.
In 2019, Guardian Australia sought the warrants directly from the ombudsman under freedom of information laws. It was refused, citing the metadata law. The ombudsman refused to confirm the existence of the warrants, claiming it would compromise law enforcement. The decision was appealed but has taken four years for the Office of the Australian Information Commission (OAIC) to process.
In submissions to the OAIC arguing against the release, provided to Guardian Australia this week, the ombudsman’s legal team went further in its arguments against releasing the documents, claiming it could involve the “unreasonable disclosure of personal information”.
“The personal information in a journalist information warrant would include the name of the person in respect of whom the warrant is issued, the name of the issuing authority and information in relation to which the warrant is sought under the TIA Act [Telecommunications (Interception and Access) Act],” the ombudsman’s legal team argued.
The ombudsman claimed that even if the journalists’ names were removed, it might be possible to identify the journalists who were subject to the warrants.
“This is because, when combined with other information external to the warrant, it would be possible to create a mosaic that could have a harmful effect on covert law enforcement activities under the TIA Act.”
Other information – including the state the warrant was issued in, the offence, and the law enforcement agency – might give clues to the identity of the journalist, the ombudsman said.
A spokesperson for the union representing journalists, the Media, Entertainment, and Arts Alliance (MEAA) said it was time the system “was scrapped”.
“This was a bad idea from the very start, as yet another example of overreach by governments in the name of national security to hunt down whistleblowers,” the spokesperson said.
“Journalists may have had their private phone and computer metadata scooped up by a government agency and we would never know about it.
“It’s outrageous that a journalist can’t find out themselves whether a warrant has been issued for their own private metadata.”
The legal team also argued the confirmation of the existence of such warrants could seriously compromise legal proceedings, years after the warrants were issued. The OAIC has yet to issue a decision.
In 2019, the ombudsman found that police had accessed journalists’ data more than 100 times illegally.