Police illegally access journalist’s ‘metadata’

Commonwealth Ombudsman will begin a full audit of the breach on May 5

The Australian Federal Police Commissioner has blamed “human error” for a breach of metadata access laws that occurred during an investigation into the source of a leak to a journalist.

The AFP disclosed the breach, which happened earlier this year, to the Commonwealth Ombudsmen two days ago, Commissioner Andrew Colvin said.

Speaking this afternoon, Colvin said an officer had failed to get a journalist information warrant to access an unnamed journalist’s phone records, a requirement of a 2015 amendment of the Telecommunications (Interception and Access) Act 1979 (TIA Act) .

The journalist information warrant system was introduced amid fears that the data retention regime would have a chilling effect on reporting. However, the system still allows such warrants to be granted in secret, without any opportunity for a journalist to object. Moreover, the warrant requirement relates solely to the access of a journalist’s metadata in a specific circumstance: An effort to unearth the identity of a journalist’s source.

It is not about the propriety of whether the information was relevant to a serious investigation, it was that a step wasn't taken that should have been,” Colvin told gathered media this afternoon.

The investigation involving the journalist – who has not been notified of the breach – stretches back several months, Colvin said, and the breach occurred earlier this month. The breach involved access of “records in relation to one phone number calling another phone number”, he added.

The Commonwealth Ombudsman will begin a full audit of the breach on May 5.

The AFP said in a statement that it had undertaken a comprehensive review of other similar investigations and no other breaches had been identified, adding it was confident the incident was an isolated one.

“I don't believe there was ill will or bad intent here,” Colvin said at the press conference. “Clearly we will do some more work to understand exactly what occurred. I don't want to foreshadow where that might end but I think the system's failed the investigator as much as the investigator failed in their obligations to know the law.”

The AFP said it was reviewing internal practices and procedures to “makesure they are as robust as possible”.

The Media, Entertainment & Arts Alliance, a union and industry advocate for Australian journalists said it was "appalled" at the revelation.

"Despite all of the requirements put in place before a Journalist Information Warrant can be granted, the system has failed. This is an attack on press freedom," said MEAA CEO Paul Murphyin a statement.

"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."

AFP is one of a long list of state and federal agencies is able to access non-journalist citizen metadata without a warrant.

“I hope the confidence isn't shattered because this is routine, we use metadata as a common part of police investigations across the country. I think we have been found to be very compliant. We have breached in respect of a journalist's particular circumstances on this occasion. I don't think that gives cause to say that the public should have their confidence shattered in the system,” Colvin said.

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