AFP illegally accessed journalist’s phone records under new metadata laws

The Australian Federal Police has admitted a member of its staff illegally accessed and viewed a journalist’s phone records as part of an investigation.

A statement from the AFP said in the process of an investigation, a member of the AFP accessed the call charge records and telecommunications data of a journalist without a Journalist Information Warrant, which is required by the Telecommunications (Interceptions and Access) Act 1979.

AFP commissioner Andrew Colvin said the breach was uncovered as part of a routine review of the case by a senior officer, after which an independent internal review was launched.

“Once the breach was confirmed, immediate steps were taken to mitigate the effects of the breach and to ensure this was an isolated incident. All relevant records in the AFP’s possession were destroyed and no investigative activities were undertaken as a result of the telecommunications data obtained from the journalist’s records,” Colvin said in a statement.

The commissioner said this was the first instance the AFP had required a Journalist Information Warrant under the legislation and the processes in place “were found to be lacking”.

The investigation, he said, related to the leak of confidential police information to a journalist, but he stressed the journalist was not the subject of the investigation itself.

“It is important to note that this investigation did not relate to the conduct or action of a journalist and was not about targeting a particular journalist. The journalist is not the subject of this investigation, nor are they being investigated for any alleged breach of Commonwealth law,” he said.

When pushed by the media yesterday at a press conference about whether the journalist had the right to know their data had been illegally accessed, Colvin said at this stage it had to remain confidential.

“Look, I think that’s a fair question. As I said, once the investigation’s finished, we’ll have to consider that. What I’m doing today is trying to be as open and transparent about it as I can. I don’t think there can be any question that we’re not trying to be held to be account for it. But while the investigation’s ongoing, it is a serious matter, we’re just not – we’re not in a position to do that,” he said.

Despite assurances that the breach was a result of human error – and that internal processes have been reviewed to ensure a similar incident “should never happen again” – Colvin did concede the illegally obtained information could not be unseen.

Addressing media yesterday he admitted: “Yea, look, clearly they can’t unsee it and they’ll need to consider in terms of next steps of the investigation what weight they put on what they saw, but the material was accessed illegally, so it can bear no – it can have no bearing on the conduct of the investigation. If, in the judgement of the investigators, that information may afford evidence at some point later, that there’s a different process that we’re going to have to go through.”

A full audit of the breach by the Commonwealth Ombudsman will commence on Friday 5 May, but the Media, Entertainment and Arts Alliance (MEAA) – the union which represents journalists – slammed the AFP and said the breach had implications for press freedom, confidential sources and the rights of journalists.

“Despite all of the requirements put in place before a Journalist Information Warrant can be granted, the system has failed. This is an attack on press freedom. It demonstrates that there is very little understanding of the press freedom concerns that we have been raising with politicians and law enforcement officials for several years now. The use of journalist’s metadata to identify confidential sources is an attempt to go after whistleblowers and others who reveal government stuff ups. This latest example shows that an over-zealous and cavalier approach to individual’s metadata is undermining the right to privacy and the right of journalists to work with their confidential sources,” MEAA CEO Paul Murphy said.

Even if the AFP had followed the proper procedure and adherd to the legislation, the MEAA said journalists’ privacy and the way they conduct their invesgitations would still be in danger.

“The Journalist Information Warrant scheme was introduced without consultation. It operates entirely in secret with the threat of a two-year jail term for reporting the existence of a Journalist Information Warrant,” a statement from the MEAA said.

“There is no reporting or monitoring of how the warrants will operate. Journalists and media organisations will never know how much of their data has been accessed nor how many sources and news stories have been compromised.

“A journalist can never challenge a Journalist Information Warrant. Everything about Journalist Information Warrants is secret. Even if someone should discover a warrant has been issued, reporting its existence will result in a two years jail.

“In short, journalists and their media employers will never know if a warrant has been sought for their telecommunications data and will never know if a warrant has been granted or refused or how many of their news stories and their confidential sources’ identities have been compromised.”

Colvin however said the breach was not indicative of the AFP’s stance on privacy and attempted to allay people’s concerns about metadata.

“The AFP understands the importance of individual privacy and we support this as a fundamental right in Australia. However, in the 21st century, access to metadata is central to the vast majority of successful crime investigations. It is critical that our law enforcement and intelligence agencies can access it,” he said.

“We have strengthened mechanisms to ensure the public can have confidence that the AFP’s powers will be used in a targeted, transparent and accountable manner and that the appropriate checks and balances are firmly in place.”

Despite the media questioning how the public can have confidence in the system or its staff when the AFP broke the law investigating one of its own, Colvin said nobody had been suspended and no disciplinary action had been taken against the staff member who committed the breach as the AFP did not believe it was deliberate or conducted with any “ill will or bad intent”.

Former Fairfax journalist Ben Grubb appeared on Ten’s The Project last night to discuss his theories on who the journalist in question was. The video of the individual segment of Grubb’s appearance has since been removed.


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