A protracted Australian court battle over the question of whether telephone metadata constitutes personal information has come to an end, with the country's Federal Court ruling in favor of telco Telstra.
The court found that most telephone metadata—such as pings from cell towers, incoming call data, URLs and IP addresses—is about the telephone account or the accounts of others, and therefore not personal information. The case stems to 2013, when then-Australian journalist Ben Grubb asked Telstra for his account metadata, reasoning that he was entitled to it considering the telco hands over such information to law enforcement and intelligence agencies without a warrant. (The full background, in Grubb's own words, is available here.)
The Australian Privacy Commissioner ruled in favor of Grubb in 2015, finding that phone metadata was personal information since geolocation data could be paired with other data sets to determine a person's identity. However, a subsequent series of court actions ultimately led to the Federal Court's final decision, which upheld a December 2015 ruling by the Administrative Appeals Tribunal. Here is a key passage from the AAT's ruling that sums up its interpretation of metadata:
[Grubb's] call or message was transmitted from the first cell that received it from his mobile device, the [metadata] that was generated was directed to delivering the call or message to its intended recipient. That data is no longer about Mr. Grubb or the fact that he made a call or sent a message or about the number or address to which he sent it. It is not about the content of the call or the message ... It is information about the service it provides to Mr Grubb but not about him.
Analysis: A ruling with potentially global implications for personal privacy
"The judgement is unfortunate," says Constellation Research VP and principal analyst Steve Wilson, who leads Constellation's analysis of privacy policy. "It comes at a time when we desperately need clarity over the scope of privacy laws and regulations. There are big global issues in play: digital rights, digital entrepreneurship, Big Data, 21st century business and regulatory models. But instead we're arguing about the meaning of the word 'about.' This isn't helping clarify privacy rights and wrongs."
"I fear that some of the extreme entrenched positions in the privacy debate will take this uncertainty and exploit it," Wilson adds. "Privacy shouldn't be complicated. It only serves the interests of extremists to make it so."
The privacy debate should center on crucial matters such as proportionality, transparency and oversight mechanisms in today's data-fueled digital economy, Wilson says. "But no, the Federal Court is just pouring semantic gasoline onto the privacy fire."
"If we take privacy seriously, then encourage data custodians to steer clear of technicalities, and instead err on the side of the individual," Wilson adds." If you have data that might be about someone and therefore Personal, then be moderate with that data. Don't collect more than you need, don't hang on to it for longer than necessary and don't reuse data collected for one purpose for other unrelated purposes."
While the ruling occurred in Australia, there could nonetheless be global implications, since the definition of personal information, personal data or personally Identifiable Information (PII) is more or less the same in most jurisdictions, Wilson says. To that end, future court rulings around the world that involve metadata could cite the Australian case as a precedent.
It would be unfortunate if the Australian court's ruling proves influential in other jurisdictions, given how "fallacious and dangerously narrow" it is, Wilson says.
"By their logic, a lawyer's appointment book dones't contain personal Information about her clients, but rather information about the services she has delivered to them," he says. "But think about the appointment list of a divorce attorney. That tells you a lot about her clients' marital status."
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