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Police metadata misuse raises questions over accountability

Allegations of police misuse of telecommunications metadata raise questions of how many requests by law enforcement officers are illegitimate.
Written by Josh Taylor, Contributor

Looking up the call records of fellow police officers and cadets to determine whether they're chucking a sickie or sleeping with one another are some of the misuses of metadata that the Queensland Police is alleged to have taken part in.

According to a report in The Courier Mail last week, police investigators are alleged to have sought the call records of an officer who was thought to have been faking being ill for a day off, as well as one who was missing on the job for a number of hours, and in a case seeking to determine whether police cadets were engaged in sexual relationships at academies.

The Queensland Police denied the claim, but according to the report, Queensland Police was forced to reiterate to staff that records are only to be accessed as part of investigations of criminal matters.

The authorisation of telecommunications metadata record access doesn't currently require a warrant; just an internal authorisation. The Queensland Police tripled the number of requests it has made for the data in the last three years, from 10,223 in 2009-10 to 36,531 in 2011-12.

They could all be legitimate requests, but there is no data on how many of those requests led to a crime being solved or stopped a terrorist plot. But if the allegations made in The Courier Mail are true, it raises questions as to how many officers not only in the Queensland Police, but also across more than 40 agencies, currently have access to this power to request telecommunications providers to hand over metadata of their customers.

The likely defence would be that we can't condemn all authorisations for the acts of what would be just a few officers, but you could also argue that Australians by and large are also being treated as suspects without judicial oversight, ensuring that every access of private telecommunications information is legitimate and not just government snooping.

When Greens communications spokesperson Scott Ludlam put forward an amendment to require government agencies to obtain a warrant before accessing metadata records, the response from law enforcement agencies and the attorney-general was that such a system would strain resources and bring law enforcement to a halt.

Often cited was the fact that in the 2011-12 financial year, there were a total of 293,501 authorisations from over 40 agencies, and it would amount to a lot of court time to get all of those authorisations approved. In high-risk situations or when seeking to avert a terrorist attack, it makes sense to be able to get fast access to those records. But perhaps in light of alleged misuse by government agencies, the question should be asked: How many of those authorisations would have gone through if it required a judge to check that it was valid?

If a warrant is deemed too much effort and too time consuming, more accountability and transparency around the reasons for the authorisations could go a long way to disproving allegations of misuse of the power by law enforcement.

In any case, the inquiry into the Greens' proposed warrant amendment has ended due to the federal election, but the Greens party has indicated that it would return when parliament sits after the election on Saturday.

I understand that some telecommunications providers have all but stopped holding their metadata any longer than required, which can mean for just two months. The law enforcement agencies would like to see it held indefinitely, but have settled so far on two years. A parliamentary inquiry into that proposal recommended that the government decide whether to implement it, and we're still waiting for a government response.

Both of the major parties are keen for the issue to go away until after the election, though, with Attorney-General Mark Dreyfus and Shadow Attorney-General George Brandis both telling ZDNet that they are not taking a policy on data retention to this election. Both parties would likely have the same response, however, with Brandis stating that the Coalition and Labor are mostly in line when it comes to policies on national security.

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