Over the years, the court system has handled the Kazaa case, the Sony case, the iiNet case, the Dallas Buyers Club copyright case and more recently the copyright case involving Foxtel and Village Roadshow.
In every case, the judges have shown that despite fears to the contrary, they have a more than adequate understanding of technological detail to make an informed judgment.
Over and above this, they have always shown that they are worldly-wise and aware of the extent to which some entities try to use scare tactics to frighten members of the public.
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The case of the Privacy Commissioner v Telstra Corporation is, however, not one for the Australian judicial system to celebrate. The verdict is illogical in the extreme.
To recap, in 2013, Ben Grubb, then a technology reporter with Fairfax Media, had asked Telstra for access to the metadata that the telco was retaining about him, and that it would hand over to government agencies if they so requested.
His request was knocked back by Telstra's privacy department.
Grubb then complained to the Australian Privacy Commissioner Timothy Pilgrim. He obtained a favourable ruling, with Pilgrim deciding that the telco had interfered with his privacy by refusing to hand over the metadata.
Telstra appealed this decision to the Administrative Appeals Tribunal and won. Pilgrim then took it to the Federal Court where the verdict went in favour of Telstra.
The case came to hinge on whether the information Grubb was seeking was about him, or about the service that Telstra was delivering to him.
The telco had refused to hand over IP addresses, URLs visited, locations of mobile towers used, and inbound call data, as it said this did not fall under personal information.
One simple question that was not asked is: who is generating the data? If an individual does not voluntarily connect their phone or other digital device to a website, how is metadata generated? Certainly not by the ISP in question.
Any data that is logged is an effect of a request made by a device. And such requests are generated by human beings.
A demonstration of this is simple: all one has to do is open a log file for the web server Apache and then access a website from one of the clients connecting to the server in question; the data can be seen as it is generated. If no website is accessed, the Apache does not write anything to its log files.
Of course, on a network there are numerous requests made by connected devices that are not human-generated; connected devices often send out requests to confirm basic connectivity data or there may be requests sent out by installed apps (especially on mobile devices) that the user in question has agreed to when he/she installed said apps.
Of course, there are malicious apps that secretly send out requests and information – but this information was not sought by Grubb in this case.
If an individual creates data, how can a court rule that they do not own it? Does the principle of copyright not apply? How can one be denied access to material on which one has copyright?
