Data retention laws and media - AusCERT 2015

Data retention laws and governments that are seemingly fixated on the idea that all communications need to be controlled have made the job of journalists more challenging than ever before.

Professor Mark Pearson from the school of Journalism and Social Media at Griffith University, Queensland, says “For time immemorial, at least for the last in the last century or more, there has been a very special relationship between, some might call it a sacrosanct relationship, between journalists and their sources”.

The protection of journalistic sources is a globally protected right he added. It’s covered within the codes of ethics of many journalistic organisations.

“Journalists don’t rat on their sources,” he adds.

Pearson cited a number of recent events and cases where members of the media held fast to protecting sources even when it meant jail sentences.

The question Pearson asked the room, referencing the Watergate scandal, was “Could a 1972 style source, like the source known as Deep Throat, in the Watergate investigation in the United States… be possible to protect as a source in this modern era”.

Many of the meetings between Bernstein and Woodward, and their source, FBI Associate Director, Mark Felt who eventually told the world he was the source took place in abandoned car parks and other secret locations.

Pearson noted that secret meetings are far more difficult to conduct. Mass collection of metadata that tracks communications and movements, as well as security cameras, make it very hard for anyone to move without the possibility of tracking.

“Today with all the methods of surveillance and storage, combined with CCTV footage and geolocation data would we be silly enough to try to meet today carrying a smartphone?”.

In a similar vein to actor Alec Baldwin’s comments at the closing of RSA Conference earlier this year, where he said many meetings are now conducted in person with no follow up calls or emails, Pearson told the audience of one journalist who, when contacted by “confidential” sources by telephone or email, turns them away as their cover is already blown. He also instructs them to use more sensible communications methods.

Many journalists, according to Pearson, are unaware of the law when it comes to protecting sources and themselves. A survey shows many aren’t knowledgeable about legal protections, how different sorts of information such as off the record, background and deep background can be used.

Also, with so much potential surveillance and data retention Pearson asks of journalists: “How on earth can they go to a meeting or a conversation with a source, guaranteeing that information is going to be off the record?”.

Indeed, he cited research that from UNESCO that says “we’re potentially looking at an environment where it becomes virtually impossible for journalists to protect their sources. Where journalists are no longer even needed in that equation given government’s broad surveillance powers”.

Whistle-blowers, who expose crimes from within government and other organisations are also threatened through mass surveillance. While an argument can be made for the data exposed by Wikileaks being important in exposing potentially illegal and unethical activity, despite using sophisticated techniques for protecting their source’s identity, Ashley Manning is now in jail.

There have also been local cases such as a Victorian police officer who outed himself as a source over a series of stories regarding counter-terrorism raids.

Freedom of information and shield laws are changing making the landscape even more complex, says Pearson. These may vary across jurisdictions. Further to this, protections for journalists who, for example, mention the existence of a security operation – much less the details of the operation – may one day be prosecuted, as there are no written protections. Although the Attorney General has said laws won’t be used to go after journalists, there is sufficient room in the law for this to change in future.

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Tags RSA Conference#Auscert2015Alec BaldwinMark FeltAusCERT 2015data retentionunescoCSO Australia

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