Expanding access to  metadata is a bridge too far

25 January 2017

The Federal Government has released a consultation paper proposing a review into access to metadata in civil proceedings. The Law Society argues that any proposal to permit access to people's data in civil matters would be an unnecessary intrusion on privacy and would create an uneven playing field in civil disputes.

In 2015, the Abbott Government introduced controversial laws that require telecommunications companies to store their customers’ metadata for two years.

These new laws were made in the name of national security. Despite widespread privacy concerns, the Government assured the public that metadata would only be accessed in the context of a terrorism investigation.

But a consultation paper released by the Federal Government on the eve of the Christmas holidays potentially opens the door for our metadata to be accessed in civil litigation.

What would this mean? We don’t yet know the types of civil matters the Government is considering might be subject to an expanded metadata access regime, but we can foresee a number of worrying scenarios that could arise.

Could a party involved in a bitter divorce or custody battle mine the private data of the opposing party to use as leverage, or out of sheer spite?

In fact, it’s not difficult to imagine all types of civil disputes where the opposing side could score an advantage by accessing information about where you were at a particular time, who you called, who you messaged, or what websites you accessed.

Perhaps even more concerning, people who have a legitimate claim may be deterred from pursuing their rights because of the threat of sensitive, highly embarrassing information being revealed.

The Government has said that this review is in part a response to the Parliamentary Joint Committee’s recommendations that some exceptions be made to allow civil litigators access to retained data. The Committee gave examples of family violence or child abduction. The problem of course is that we are gradually widening the field of people with access to our personal information and further relinquishing our privacy. It’s a slippery slope. Any expansion of the metadata retention regime could open the door to a greater intrusion on our privacy.

The Law Society has serious concerns that any expansion of the metadata storage regime into the civil arena would favour those with the resources to obtain and filter this type of data, further entrenching the divide between the “haves” and “have-nots”. This would be antithetical to the fundamental principle of equality before the law.

Furthermore, there would likely be a huge increase in the cost and length of trials if access to metadata was permissible.

There may be sound reasons to accept the retention of our private data as a measure to protect our safety, but expanding the State’s surveillance regime for potential use in civil litigation is a bridge too far.

The Law Society is opposed to the possibility of access to metadata for the purpose of civil proceedings. View the Law Society’s submission on the Federal Government’s Consultation paper in relation to Access to Retained Data in Civil Proceedings.