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Monday, 23 January 2017 12:01

Federal Court erred in Grubb metadata ruling

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The Australian judicial system has usually proved itself to be one that applies the common sense principle when confronted by technological cases. But in the case of the recent ruling on what is, and what is not, personal information, the Federal Court has erred and badly too.

Over the years, the court system has handled the Kazaa case, the Sony case, the iiNet case, the Dallas Buyers Club copyright case and more recently the copyright case involving Foxtel and Village Roadshow.

In every case, the judges have shown that despite fears to the contrary, they have a more than adequate understanding of technological detail to make an informed judgment.

Over and above this, they have always shown that they are worldly-wise and aware of the extent to which some entities try to use scare tactics to frighten members of the public.

A case in point is that of the Dallas Buyers Club copyright owners who wanted carte blanche to go after Australian downloaders of the film. The court kept them in check and finally the plaintiffs decided that it was a waste of time as it would not net them anything like the returns they had anticipated.

The case of the Privacy Commissioner v Telstra Corporation is, however, not one for the Australian judicial system to celebrate. The verdict is illogical in the extreme.

To recap, in 2013, Ben Grubb, then a technology reporter with Fairfax Media, had asked Telstra for access to the metadata that the telco was retaining about him, and that it would hand over to government agencies if they so requested.

His request was knocked back by Telstra's privacy department.

Grubb then complained to the Australian Privacy Commissioner Timothy Pilgrim. He obtained a favourable ruling, with Pilgrim deciding that the telco had interfered with his privacy by refusing to hand over the metadata.

Telstra appealed this decision to the Administrative Appeals Tribunal and won. Pilgrim then took it to the Federal Court where the verdict went in favour of Telstra.

The case came to hinge on whether the information Grubb was seeking was about him, or about the service that Telstra was delivering to him.

The telco had refused to hand over IP addresses, URLs visited, locations of mobile towers used, and inbound call data, as it said this did not fall under personal information.

One simple question that was not asked is: who is generating the data? If an individual does not voluntarily connect their phone or other digital device to a website, how is metadata generated? Certainly not by the ISP in question.

Any data that is logged is an effect of a request made by a device. And such requests are generated by human beings.

A demonstration of this is simple: all one has to do is open a log file for the web server Apache and then access a website from one of the clients connecting to the server in question; the data can be seen as it is generated. If no website is accessed, the Apache does not write anything to its log files.

Of course, on a network there are numerous requests made by connected devices that are not human-generated; connected devices often send out requests to confirm basic connectivity data or there may be requests sent out by installed apps (especially on mobile devices) that the user in question has agreed to when he/she installed said apps.

Of course, there are malicious apps that secretly send out requests and information – but this information was not sought by Grubb in this case.

If an individual creates data, how can a court rule that they do not own it? Does the principle of copyright not apply? How can one be denied access to material on which one has copyright?

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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