The former technology editor for Fairfax’s watoday.com.au, smh.com.au, theage.com.au and brisbanetimes.com.au websites has lost a privacy stoush with Telstra over access to his metadata.
oneperth.com.au can reveal that last week Telstra won an appeal against Sydney-based Ben Grubb who recently packed in his job with Fairfax after five years there. Grubb plans to go into business with fellow technology journo Asher Moses who has also parted company with Fairfax.
In May, the Federal Privacy Commissioner directed Telstra to give Grubb all metadata regarding his Telstra mobile phone.
In a ruling that Grubb had branded “a landmark decision”, the Privacy Commissioner had originally ruled the metdata was personal information as defined by the Federal Privacy Act.
The Privacy Commissioner had decided that in refusing to give Grubb access to the metadata Telstra was in breach of National Privacy Principle 6.1, and Telstra was directed to give the metadata to Grubb.
But Telstra challenged that direction at the Administrative Appeals Tribunal of Australia. And on Friday, tribunal Deputy President Stephanie Forgie set the decision aside.
NOT PERSONAL INFORMATION
Deputy President Forgie decided Telstra’s mobile network data was not information about an individual, namely Grubb, and so was not personal information.
She concluded Telstra was not in breach of the national privacy principle when it refused to give Grubb access to the metadata.
Grubb had originally asked for data on which cell tower he was connected to at any given time, the mobile phone number of texts he’d received and the time they were received, the time his data sessions started and finished, URLs of websites he visited, the duration of telephone calls, and details of who he called and who called him.
Before the tribunal, Grubb argued that if Telstra could associate metadata with a specific account then it was personal information about that account holder.
At the heart of his submission was the proposition that if a person were to trawl through the data held by Telstra, that person would be able to identify Grubb from it.
To illustrate his submission, Grubb referred to data released by AOL as anonymised search query logs conducted by a large number of its users. AOL had released the information for research purposes but made it publicly available. Among those to whom it was available was the New York Times. The newspaper used the information released by AOL on particular users to follow their searches and, using the information from those searches, to identify them.
Grubb asked why, if Telstra could give law enforcers access to metadata such as URLs, IP addresses and cell tower information, the company could not give the same metadata to him.
Deputy President Forgie said the answer was that Grubb’s entitlements and those of law enforcement agencies were the subject of different legislative regimes.
Telstra argued that the process of identifying an individual from mobile network data involves complicated and tedious searches of the sort that could not lead to a finding that the identity of the individual could reasonably be ascertained.