—Genna Churches, PhD Candidate, Faculty of Law, UNSW Sydney, and Monika Zalnieriute, Senior Lecturer, School of Law, Macquarie University
Australians, just like many other people around the world, are taking to the streets. What started as a few small sparks earlier in a year — Greta, school strikes, Extinction Rebellion — unraveled during Australian bushfires crisis, spread to anti-lockdown protests over COVID-19 restrictions, and now exploded into massive protests on racial injustice with ‘Black Lives Matter’, the ‘Aboriginal deaths in custody’ movement and calls to tear down statutes of a racist colonial legacy. Strong consciousness of racial and environmental injustice is driving the protests, despite the COVID-19 risk of mass gatherings.
As we show below, Australian politicians have expressed strong disdain, and even threats, at protesters well before COVID-19 pandemic. Government desire to silence critics is not new, however today’s digital technologies and Australia’s slack federal metadata laws give the Government unprecedented tools to find out who has attended the protests, and take action. These tools, coupled with new COVID-19 powers to surveil citizens, have seriously impaired the right to protest anonymously in Australia. In this post we are not disputing the need for restrictions on mass gatherings or social distancing — to the opposite, we think they are crucial to stop the spread of virus. Instead, we are exposing the instrumentality of metadata, including location data, for the government to clamp down on peaceful protests. As the High Court of Australia noted, the right to peaceful protest is vital to Australian democracy, given the only other voice for the public is at the ballot box. In this post, we propose one small step towards securing that right — a right that will be needed once the pandemic is under control and the restrictions are eased. That small step is reforming the laws so that our metadata can only be accessed with a judicial warrant.
So why is metadata important in the context of political protest? Metadata — which telcos in Australia must keep for two years and provide to police and many other agencies upon request — reveals things like where we traveled and what we were up to. Metadata can also reveal contact with others who have attended protests or boycotted businesses, warranting a closer inspection of spending records, or even social media posts and private electronic messages. Under the Australian metadata regime, this information can be released not only to police, but also revenue protection and fines enforcement agencies, Centrelink and the ATO, and many other professional associations and local government bodies.
The instrumentality of Australia’s metadata retention scheme for government efforts to clamp down on protests is huge: it enables the collection of data about your identity, your location, and who you contact — all done continuously, surreptitiously and automatically through your mobile phone. No warrant is needed to access metadata under Australian federal law. Such access enables the government to draw links and amass schemes of connections between people who were organizing, attending, intending or speaking at the protests. We can’t know if the government has already used the scheme to suppress protests because there are no requirements to report access to metadata under the scheme used by local government or state health departments, and the reporting requirements for Police are far too vague to understand the purposes for data access.
These lax data access arrangements were recently further loosened as part of Covid-19 emergency package under specific state laws and the federal Biosecurity Act 2015 (Cth). Emergency legislation has granted vast powers to the federal health minister to collect, demand, access and share any data he deems necessary, irrespective of existing laws. In NSW, Covid-19 Emergency Orders have made it easier to disclose data across even more departments and organisations. With such a wide scope of agencies given access, and lax reporting mechanisms, the potential for the government to target protesters and critics is great, and protesters’ anonymity is less assured than ever.
A right to protest anonymously — to be ‘just a face’ in a sea of protesters or even to wear a mask (perhaps now mandatory equipment), for fear of retribution, is well recognized in liberal democracies and the international community. This reduced anonymity also has a ‘chilling effect’ on political discourse. Often, facial recognition technologies have been singled out as removing that anonymity. However, metadata does not require an image of a face — a protester’s phone number or device is identified as being in a location, or as a contact of another known person. Telcos and credit card providers are required to verify users’ identity before providing services — those people you call or message have been identity checked too. It’s not hard to see how the right to protest anonymously, without the fear of retribution, is seriously threatened by the scheme.
The instrumentality of metadata for controlling and sanctioning protests should not be ignored, especially when immense disdain for public protest by our political leaders is spilling over. In Australia, this disdain well pre-dates COVID-19, and includes calls to cut welfare and impose fines, as well as public shaming. For example, during the climate protests in Australia earlier this year, Australian Prime Minister Scott Morrison promised to punish those who boycotted businesses for environmental reasons. Australian Minister of Home Affairs, Peter Dutton wanted to cut welfare payments, issue bills for Police time, and name and shame protesters: ‘People should take these names, and the photos of these people, and distribute them as far and wide as we can so that we shame these people… these people are a scourge, they are doing the wrong thing’. Similarly, Australian Federal Employment Minister Michaela Cash confirmed the welfare ‘system can identify’ protesters where they have failed to attend a job interview, because, ‘protesting is not, and never will be, an exemption from a welfare recipients obligation to look for a job’.
Unsurprisingly, recent protests in Australia encountered hurdles in this political climate. For instance, applications for ‘authorized public assemblies’ from the Refugee Action Coalition and Black Lives Matter were refused, based on the NSW orders prohibiting large gatherings (with one receiving a last minute reprieve). In Victoria, Police promised fines for organizers of a Black Lives Matter protest if more than 20 people attended with three organizers fined for breaching public health directions. Focusing on the health crisis, Prime Minister Scott Morrison insisted that protesters ‘find another way to express your view’. However other politicians displayed an overarching anti-protest sentiment, touting welfare cuts for those protesting, and insisting protesters ‘hand back those payments in advance’. Scott Morrison dismissed calls to restrict welfare payments, saying that states have other means to deal with protesters.
Anti-protest rhetoric by Australian political leaders, and administrative state efforts by governments to clamp down on protests should be taken seriously. When the pandemic is under control and restrictions ease, Australian will need to engage in protest as a part of political discourse. With the federal metadata retention scheme currently under review by one of the most powerful committees in Australia — the Parliamentary Joint Committee on Intelligence and Security; it is important now, more than ever, to send a message to Australian politicians — Australians have a right to freely protest, assemble, associate with others and to participate in political discourse. The protection of protesters’ metadata is fundamental to exercising that right. Securing such data with a judicial warrant-based system and detailed access reporting requirements is critical for Australian democracy because the next time the public needs to voice its position through protest, governmental identification and retribution may be swift.
Suggested Citation: Genna Churches & Monika Zalnieriute, The Instrumentality of Metadata Access Regime for Suppressing Political Protests in Australia, Int’l J. Const. L. Blog, Aug. 4, 2020, at: http://www.iconnectblog.com/2020/08/the-instrumentality-of-metadata-access-regime-for-suppressing-political-protests-in-australia
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