While strolling through the web one day,
Outside the very merry month of May,
Oh, look what I should find,
The web is wonderful and kind,
By giving me a case on metadata.
In recognition of National Poetry day last week, that was my shockingly brilliant (!!) effort at a short rhyme in aid of this blog post. I know, stick to the day job right? (And yes, I know that we are in October and not May).
As the rhyme suggests however, I was indeed browsing the web and I did indeed come across an interesting legal case looking at rights of access and metadata in telecoms/internet providers in Australia. Something of particular relevance at the moment in the light of the Australian Government announcing its new Data Retention Law.
In the news article and legal case an Australian citizen, Mr Grubb, exercised his rights under the Australian Privacy Act 1988 to ask for all information Telstra (a phone company) held about him. His request specifically asked for the meta-data associated against him:
“…I’d like to request all of the metadata information Telstra has stored about my mobile phone service (XXX XXX XXX).
The metadata would likely include which cell tower I’m connected to at any given time, the mobile phone number of a text I have received and the time it was received, who is calling and who I’ve called and so on. I assume estimated longitude and latitude positions would be stored too. This is the type of data I would like to receive.”
Although Telstra provided some data to Grubb, it refused to hand over internet protocol address information, edited versions of incoming call records and website URL information stating that retrieving the information would take disproportionate effort and therefore was unreasonable.
An appeal, dated May 2015, was brought to the Office of the Australian Information Commissioner who found in favour of Data Subject in parts and the Data Controller in parts. But in very interesting parts.
The Commissioner supported Telstra in its exemption of some pieces of information to do with telephone numbers of 3rd parties, particularly where those numbers had registered with a Telephone Preference type service in Australia. Telstra argued that it had no effective method of determining those numbers and removing them from the list therefore the entire list of inbound numbers to the Data Subject’s telephone line would be exempt.
The Commissioner did however reject a number of claims made by Telstra about the difficulty in retrieving and linking data to a person’s identity. Telstra relied in part on this submission to argue that certain types of Grubb’s data was not “personal information” because it could not be linked to the Data Subject’s identity. However, the Commissioner in his decision drew attention to Telstra’s provision of data to law enforcement agencies to show that it has (and has used in the past) the ability to process and connect different types of metadata to individuals.
It’s also interesting that since the case was initiated Telstra’s approach to customer access to metadata has shifted significantly. Telstra customers will now be able to access the same metadata about them (save for shared information) that Telstra would provide to law enforcement agencies, on request without a warrant.
Now while Australia is a very long way away from Europe this case does pose some interesting questions. I ran a search online for cases where metadata was refused under a Subject Access Request (SAR) but could not find any in the public domain. As we all know there are a growing number of laws appearing that require telecoms companies to capture and store such metadata for government access but to date I’ve not seen a similar legal challenge whereby the data has been refused in a SAR.
For those that don’t have much experience with metadata the Oxford English dictionary defines metadata as “a set of data that describes and gives information about other data”. In this context, telecommunications data, is data that is associated with an account and its usage (e.g. masts used, websites visited, numbers called) which on their own do not automatically equate to personal data, but do so when associated with one number form the metadata of that persons account. Therefore it is personal data as it can identify them and/or be associated with them.
The current subject access request code of practice from the UK Information Commissioner’s Office doesn’t specifically talk about metadata being or not being personal data or in scope for a SAR. Based on the principles of the Data Protection Act 1998 (DPA) and the fact that such metadata can and is requested by law enforcement agencies and is used to identify you; I would argue that this is Personal Data, as defined by the Act, and should be provided to a requestor under subject access.
How does this sit under the current proposed EU Data Protection Regulation text(s)? Well, you won’t find the term “metadata” in the Regulation text anywhere so there won’t be a crystal clear stance on it. Instead we will need to look at the definition of Personal Data as proposed.
In the European Council’s text Chapter 1, Article 4 (1) it defines Personal Data as;
“any information relating to an identified or identifiable natural personal (“data subject an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person).”
So while the new proposed definition doesn’t specifically call out metadata it does seem to imply that it would be. For example, your mobile number and all data that can identify your location (phone mast data for example) would be considered Personal Data under that definition; which isn’t that far removed from DPA definition of Personal Data.
On that note, following a brief search online I have not been able to find any cases on SAR and telecoms in the public domain. I can find plenty of commentaries and a remotely similar financial services case. I would therefore be interested to see if anyone knows of one currently ongoing or that has been tested in the courts / tribunal so far to date?
Currently the UK Government is looking to revive the so-called “snooper’s charter” under the Draft Communications Data Bill. Therefore if government agencies are to spy / monitor / keep / ignore my personal data then I think that we should, at any point, see what that personal data is. I bet mine is really rather dull…but it’s my dull data dammit.
Scott Sammons an Information Risk and Security Officer in the Medico-Legal Sector and blogs under the name @privacyminion. Scott is on the Exam Board for the Act Now Data Protection Practitioner Certificate.