Data retention laws mean whistleblowers will become rarer and rarer
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Data retention laws mean whistleblowers will become rarer and rarer

Data retention laws mean journalists must be technologically competent enough to honour a promise of confidentiality to a source.

The Telecommunications (Interception and Access) Amendment (Data Retention) Bill received its first reading in the House of Representatives on October 30, 2014.

Long before that, a few journalists – Bernard Keane in Crikey and Paul Farrell in The Guardian Australia spring to mind – were banging on about what compulsory metadata retention means for our privacy, and whether there is any evidence that it helps stop terrorism, and especially how it will threaten the confidentiality of journalists' sources.

Protecting sources requires robust laws, but also tech-savvy journalists.

Protecting sources requires robust laws, but also tech-savvy journalists.

And they wondered out loud about why so few others seemed to be making a fuss.

It is true that in January the biggest media organisations in the land united to produce a tough submission to the parliamentary joint committee on security and intelligence; and in February, when they didn't think they were being taken seriously enough, they wrote a joint letter repeating their concerns.

Illustration: Andrew Dyson

Illustration: Andrew Dyson

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But the issue wasn't getting much traction, with either the public or the politicians. Or, for that matter, with journalists.

That is not really so surprising. We journos cling to an enduring myth about our occupation. We spend our time, we would have you believe, righting wrongs, uncovering scandal and corruption, and holding the powerful to account.

We do this, we like to think, by cultivating confidential sources: brave whistleblowers, be they in the public service, the police, the churches or big business, whose jobs and even liberty would be in jeopardy if their identities were ever revealed.

Now, it is not that the myth is completely false. Sources who blow the whistle in the public interest exist, but most journalists come across them rarely, or not at all. Investigative reporters who routinely break big stories as a result of cultivating confidential sources probably number no more than a couple of dozen nationwide.

I don't mean the kind of sources who background the press gallery in Canberra every day. Politicians and staffers rarely want to be quoted, but if their identities leaked, the worst they would suffer would be embarrassment. By contrast, a Commonwealth public servant who discloses unauthorised information risks two years' imprisonment under section 70 of the Crimes Act.

Real investigative journalists have been taking steps to minimise the risks to their sources for years; because for years, metadata has been routinely used by any agency that wants to discover who has been leaking its secrets.

The problem is that most reporters don't often find themselves in that situation. As a result, when they do, they can make stupid mistakes.

Eleven years ago, I reported a story for Four Corners about the antics of the Victoria Police drug squad, many of whose members were facing corruption charges. I was working with a young ABC reporter in Melbourne who already had a reputation for breaking stories. His name was Nick McKenzie.

Sources who blow the whistle in the public interest exist, but most journalists come across them rarely.

McKenzie, of course, is now one of The Age's star investigative reporters, with many Walkley awards on his shelf. Back then, he looked about 17 years old but he already had a web of contacts in the Victorian underworld and the Victoria Police. He was still brash and inexperienced. He did a few things while researching that story that made my hair stand on end. But it was I who endangered one of his best sources, a detective in the ethical standards division, the Victoria Police's corruption busters.

The source was only trying to ensure we didn't get blind-sided by the bland assurances of police senior management and the self-justifying lies of the crims themselves. But, in talking to us at all, that source was putting a career at risk. One day, I called on my mobile phone.

"What phone are you calling from?" the source asked at once. "Um, my mobile," I replied. The phone clicked and the source didn't speak to us for a week.

For more than a decade, I'd been a foreign correspondent, and then an executive producer. The last time I'd worked on the frontline of domestic journalism, there'd been no such things as mobile phones, or email, or metadata.

There are two points about this story that bear emphasising. The first is that in the digital age, any source has to trust more than a reporter's promise of confidentiality: he or she has to trust that the reporter is technologically competent and careful enough to keep the promise. That's a big ask.

The second is that any digital transaction has instruments at both ends. The easy way to look for a reporter's source is to interrogate his or her phone and email metadata. But with modern software, it only takes a bit more effort to comb through the records of possible sources – and that won't need a warrant, or trigger a report to the Ombudsman, under the new act. It only needs one match to a reporter's phone number or IP address, and the source is blown sky high.

The politicians woke up to the seriousness of the media's concerns about the data retention bill only when big guns such as Laurie Oakes began to boom. The amendments they have now made mean it will be a bit harder than it has been for agencies to go fishing in journalists' records.

But that won't do much to protect our sources. Every reporter worth the name, even if they don't do much investigative journalism, will need to be familiar with the mysteries of Tor, and encryption, and anonymised drop boxes.

And genuine confidential sources – especially those who take real risks to blow the whistle – will get rarer and rarer.

Big Brother is watching them. And me. And you.

Jonathan Holmes is an Age columnist and a former presenter of the ABC's Media Watch program.