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Australian Federal Police admit to slurping politicians' metadata

'Fesses up to logging calls to whistleblowers, says interceptions remain secret

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It seems that merely being a recipient of a leak is sufficient, in Australia, for the Australian Federal Police (AFP) to search members of parliaments' phone records.

The admission that the AFP had accessed “non-content data” of MPs came as independent Senator Nick Xenophon grilled the AFP over the issue.

In a Senate Estimates hearing on Monday night, Xenophon, trying to draw out how many MPs had been subject to AFP surveillance, what level of surveillance, and for what reasons, pressed the AFP's commissioner Tony Negus on the bugging surveillance.

Just how many MPs had been snooped upon is just one of the many points of contention in the discussion in Senate Estimates: Xenophon stated that “we were talking about five investigations of leaks in each of the last two years”, which Negus did not challenge.

However, when Xenophon asked whether the surveillance might be “between one and 226” (the latter number including the entire parliament), Negus said “it is less than five” (without qualifying the period for which he was answering).

Negus admitted under Xenophon's questioning that the “fewer than five” MPs had been subject to metadata collection, before the exchange became bogged down over whether any interception had occurred.

“If members of parliament were having their phone calls intercepted, you could not advise us whether that was actually occurring at all?” Xenophon asked, to which Negus responded:

“There are very tight – and quite appropriately tight – legal restrictions around communication of that material. It has to be authorised by a court or it has to be in the process of a criminal proceeding – those sorts of things. I cannot tell anyone about anything about whether a warrant is being listened to unless they are authorised from a warrant.”

As far as The Register can tell, this and Negus' later responses mean “I'm not telling you whether or not any interception warrants exist over MPs.” He did, however, conceded that an interception warrant (which isn't the same thing as metadata collection) wouldn't be granted merely to pursue a departmental whistleblower in a leak investigation:

“There is a threshold of an offence which must be reached – it is seven years penalty – which must apply before a telephone interception can even be applied for. So section 70 would not apply; I think it is two years. So you cannot go and get a telephone intercept for somebody who may have released information in the context of what they are doing”, Negus said.

The AFP also stated that the metadata searches it conducted over MPs were internally authorised, rather than being brought before a judge for a warrant. Otherwise, The Register is forced to assume, Commissioner Negus wouldn't have been able to discuss the “operational matter” with Xenophon at all.

The AFP told Estimates it has conducted more than 25,000 metadata searches in 2012-13, compared to 23,000 such searches for the previous year. ®

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