“People assume you can’t get people’s phone records without a warrant, but it turns out you can”
Nick Xenophon says the AFP’s ability to sweep individuals’ private data without a warrant could deter whistle-blowers from acting on their consciences.
The senator’s comments come as revelations mount over US intelligence agencies collecting massive amounts of private information on American citizens and other people the US finds of interest.
The man who made the recent disclosures in America, Edward Snowden, a former intelligence analyst, is now fighting extradition in Hong Kong, making his case away from the clutches of the US legal system.
Meanwhile, it has come to light that not only are Australians likely to be swept up by US data intercepts, but they are also targeted by their own government’s surveillance programs.
At a Senate estimates hearing on May 30, AFP Deputy Commissioner Mike Phelan was questioned by Xenophon about the AFP’s ability to examine phone records, as well as private information from Facebook and Google+ accounts.
Asked if the AFP needed a warrant to obtain such information, Mr Phelan said that a warrant was not required for ‘Non-content data’.
Such powers mean that the AFP can, without a warrant, get the name of the person who made the call, whom they called, when they called, for how long, and from what location, but cannot listen to the content of the call.
“People assume you can’t get people’s phone records without a warrant, but it turns out you can,” Xenophon told the Sydney Morning Herald.
“We are now talking about mass interceptions across a vast grid. You can use this information to triangulate, work out whole networks of who is talking to whom and when and where, without a warrant.”
Software programs like IBM’s Analyst’s Notebook allows such data to be automatically visualised, showing connections between a person and everyone he or she speaks to.
Deputy Commissioner Phelan explained that there were three types of categories for such monitoring. One, to enforce the criminal law; the second, to find missing persons; and the third to enforce an order to impose a fine.
Asked how many authorisations were given in recent years, Phelan reported that there were 50,841 in the financial year 2010-11 and 43,006 were given in 2011-12. These figures suggest around 800 to 900 such intercepts are being made every week.
Once the AFP have the data, it remains in the police database permanently.
During the estimates hearing, Xenophon told the Deputy Commissioner that whilst he respected the importance of the AFP’s work in relation to organised crime and drug smuggling, when it came to issues of sections 70 and 79 of the Crimes Act – the alleged divulging of official secrets, otherwise known as leaking:
“[the AFP] actually build up a pretty incredible database that could go back a number of years, of, for instance, a journalist or even a member of Parliament; who they spoke to, and who they have been speaking to over a number of years.
“You have quite a database under this authorisation power,” asserted the senator.
The AFP says that in the past year they received only five requests to pursue leaks.
Xenophon’s concern is that the existence of these powers could harm the national interest by deterring whistle-blowers.
“This has a chilling effect on people coming forward to raise issues of public importance when you know every phone record and every email to your computer can be dug up without a warrant,” he told reporters.
“Paradoxically, wrongdoers can continue to act with impunity because people won’t be prepared to come forward.
“It’s ridiculous to equate terrorism or organised crime with public servants coming forward with concerns about malfeasance.”