OAIC Decision in Ben Grubb Case
Sydney, 4 May 2015 – The decision by the Privacy Commissioner in relation to the metadata request from the journalist, Mr Ben Grubb, has disturbing ramifications for the telecommunications sector and for its millions of customers throughout Australia.
Applying the declaration that all metadata is personal information would layer additional costs and complexity on telecommunications service providers, without any tangible benefit in terms of protecting privacy.
Asserting that every single trace of network data - no matter how obscure, unintelligible or remote it is, or whether it reveals anything about a person at all - is captured under the Privacy Act is impractical, unnecessary and will be very costly for industry to manage.
This is a stark example of regulatory overreach. In making this decision the Privacy Commissioner has stepped into the realm of setting policy, without any consultation with industry and seemingly without a mandate from Government to extend the reach of regulatory obligations deep into the operations of communications service providers.
This decision presents a challenge for our industry and will significantly increase the burden of regulation, right at the time that industry players – and ultimately our customers - are already facing hundreds of millions of dollars in additional costs due to legislated requirements for data retention and online copyright infringement protections.
This determination is likely to actually increase the amount of data handed over to law enforcement agencies under the Federal Government’s new data retention legislation. Today, many elements of the information required by the Privacy Commissioner to be provided to the journalist in question are not provided to law enforcement and national security agencies when they make data requests to service providers. This is because such data are very difficult to extract.
But if telcos have to provide this much broader suite of data to customers, it is likely only a matter of time before agencies will start asking for it as well.