Ombudsman wants to monitor warrantless metadata access

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Ombudsman wants to monitor warrantless metadata access

Requests ability to report publicly.

Australia’s Commonwealth Ombudsman has put up his hand to monitor the collection of telecommunications metadata by the country’s law enforcement agencies, as part of potential reforms to national surveillance legislation.

In a parliamentary hearing on prospective changes to Australia’s Telecommunications (Interception and Access) Act 1979, the office of Ombudsman Colin Neave - which inspects the records of law enforcement agencies in relation to their use of covert powers  - offered itself up to act as an oversight body for the accessing of metadata.

Law enforcement agencies are currently able to seek non-content telecommunications data without requiring a warrant, thanks to amendments relating to metadata made to the TIA Act in 2007.

To actually access the content of a telephone call or stored email, a warrant is required - a function that attracts the oversight of the Commonwealth Ombudsman.

Neave and his team wants their powers extended to include oversight of metadata access, which last year hit a record of 291,501 authorisations, according to the Attorney-General’s Telecommunications (Interception and Access) Act annual report. That figure is up significantly compared to 243,631 metadata authorisations the year prior.

In comparison, 3764 telecommunications interception warrants were lodged for full content of communications.

Ombudsman Colin Neave acknowledged the “significant” impact such new responsibilities would have on his office’s resources, but said there were several ways to tackle the issue.

“[We would] work out an appropriate sampling program - that would be the normal approach to a volume responsibility along those lines,” he told the committee.

Another potential approach would be to look at policy and risk mitigation processes - rather than specific records - within an agency to ensure the issue requiring metadata access had been given appropriate consideration, he said.

“Looking at high level processes in combination with doing a sample may alleviate some risks from not looking at a greater number.”

Neave also repeated his earlier calls for the introduction of a public reporting mechanism to improve transparency.

The Ombudsman currently reports into the Attorney-General’s office on inspection matters relating to telecommunications interceptions, access to stored communications, surveillance devices, and controlled covert operations.

Neave said the ability for his office to publicly report on whether agencies had used their powers lawfully would play a key role in providing accountability and transparency. 

“If we were able to report publicly it would align with our other reporting responsibilities under the Surveillance Devices Act 2004, Part IAB of the Crimes Act 1914, and other legislative oversight roles," Neave said.

"We also note the Law Council, the NSW Ombudsman and the Inspector-General of Intelligence have supported consideration of introducing a public reporting mechanism."

The controversial legislative powers around metadata access have drawn criticism for allowing agencies to “vacuum up” large amounts of personally identifiable data from the country’s citizens.

Committee chair and Greens MP Scott Ludlam has been a vocal campaigner against the practice, and was the driver behind the Government’s decision to investigate “comprehensive revision” to the TIA Act through the current Legal and Constitutional Affairs References Committee.

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