The collection of telecommunications metadata without a warrant by government agencies was under the microscope at the first of three days of public hearings on the comprehensive revision of the Telecommunications Act.
Greens senator, who has devoted much of his time in parliament since 2008 to fighting for online rights, headed up today's hearing, questioning government intelligence and law enforcement agencies over their warrantless collection of telecommunications metadata under the current legislation.
Under the existing Telecommunications Act, government intelligence and law-enforcement agencies are obliged to obtain a warrant before they can lawfully access the content of individuals' communications.
However, the active collection of individuals' non-content data — or metadata — from telecommunications providers does not require a warrant under the current legislation, which was drawn up over 30 years ago.
During the hearing, Ludlam pointed out that while the instances of government agency applications for warrants to access communication content has remained steady over the past 12 months, the instances of warrantless metadata requests have increased by 10 to 15 percent each year.
"We're up to 319,000 [metadata requests] for last year," said Ludlam during the hearing. "What falls out of this whole process is the distinction that's being drawn — that it's the envelope, not the letter. If you stack up enough envelopes, enough telecommunications data, you have content.
"You can build up very detailed maps of people's social networks, their movements in space and time, and that is no less invasive than reading someone's email, for which we have this quite rigorous warranted process.
"Without any of those safeguards, you can have extremely intimate information about networks of people or individuals without crimes needing to be even alleged. My question, I guess, is whether you think it's time to raise the bar?"
Appearing before the panel was secretary of the Attorney-General’s Department, Roger Wilkins; Catherine Smith, assistant secretary, Telecommunications and Surveillance Law Branch; and Andrew Colvin, acting commissioner of the Australian Crime Commission Board of Management, among others.
Wilkins told Ludlam that, under the existing legislation, the authorisation process for obtaining telecommunications metadata already restricts the types of activities that law enforcement and intelligence agencies can engage in.
According to Wilkins, the collection of telecommunications metadata does not constitute intrusive behaviour by government agencies in the same way that tapping into communications content does.
"Clearly there's a difference between metadata or telecommunications data and content. There is a very different qualitative difference in terms of intrusion," said Wilkins.
"This is a critical tool for modern law enforcement to use. The only thing I'd say about doing it through judicial warrant...is that it would make life very difficult if every time you did an authorisation you needed to go to a magistrate. It's not like being as intrusive as listening in on a conversation.
"I think the balance is right. I think that, in terms of metadata particularly, that sort of requirement is not necessary. That's a personal view."
The hearings continue tomorrow.