Thursday, 19 January 2017 22:06

Metadata ruling 'an analog decision in a digital age' Featured

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The Australian Privacy Foundation has described the Federal Court's judgment that key metadata is not personal information as an effective gutting of the Privacy Act.

A full bench of the court today ruled that not all metadata generated by an individual was personal data and a company, in this case Telstra, could refuse to hand it over to the individual in question.

In 2013, Ben Grubb, then a technology reporter with Fairfax Media, sought metadata information regarding his mobile phone held by Telstra Corporation.

Telstra refused to provide it to him claiming it was not personal information. He complained to the Privacy Commissioner who held that the metadata was personal information. Telstra successfully appealed that decision in the Administrative Appeals Tribunal in 2015.

In 2016, the Privacy Commissioner appealed that decision to the Full Bench of the Federal Court which rendered its verdict on Thursday.

The APF said the judgment would be "disastrous for ordinary Australians and misunderstands how a digital footprint identifies a person".

"This decision will severely impair the Privacy Commissioner in regulating privacy online."

APF board member Dr Jake Goldenfein said: "The judgment means that a person's Internet browsing history (URL addresses visited), assigned IP addresses, and geo-location (mobile tower) data is not personal information because it does not identify that person's name or telephone number.

"The reality, however, is that those pieces of information taken together do identify a person. The judgment effectively introduces a new hurdle in determining whether personal information is protected by requiring a person to be the subject matter of each piece of information. This very narrow reading ignores how data matching and data linking works, permitting a person to be identified from pieces of information each of which does not necessarily specifically refer to him or her."

Dr Goldenfein added that the court's approach ignored the effect of significant technological developments in data matching and linking.

"It is an analog decision for a digital age," he said. "The decision leaves Australia with one of the weakest and least effective privacy protections in the Western world.

The court had ignored  overseas court decisions which had identified and recognised the reality of linking different items of digital information which has the effect of identifying a person, he said.

"Today's judgment was a bad day for privacy protection in Australia. This data is very valuable to security and law enforcement but there are now no protections for ordinary citizens as to the use of such data," Dr Goldenfein said.

"This judgment has rendered Australia an outlier in the protection of privacy online. It reduces the protections ordinary Australians should expect and have. It is a boon for organisations to collect vast amounts of information about individuals but not be accountable to the regulator for it."

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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