Felix Marwick: Is your phone company giving your information to Govt agencies?

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In our new smartphone dominated age it's sometimes easy to forget just how much of our personal information is held by telecommunications companies and, what's more important, the access that other agencies have to it.

Late last year I decided to try a little experiment to see what would happen if I asked my cell phone provider if it would tell me if any government agencies had request access to my phone records. It was inspired in part by the efforts of Australian journalist Ben Grubb and the long running fight he had with Telstra to obtain his internet and phone metadata. Given the lengthy battle he had, I was curious to see what might happen here.

Now, I lead a reasonably virtuous and abstemious lifestyle, being a reporter and the father of a small child really doesn't leave a lot a free time for nefarious activity. So I was not really expecting that there would be too much in the way of controversy around my request. However it was not as straightforward as you'd might expect.

My cell phone service provider Spark gave me a "neither confirm nor deny" response after I made my request. Their reasoning was as follows; because they have obligations under various pieces of legislation to provide data to law enforcement agencies they didn't want to get into a situation where they could compromise an official investigation.

The analogy they used and they were at pains to point out they didn't think I was one, was that of a drug dealer who suspected their phone was being monitored by police. Spark's position was that they couldn't afford to be in a position where they could give definitive information that could confirm whether or not authorities were conducting an investigation. To do so, they argued, could lead to the prejudice of the maintenance of the law. Spark's view was I should instead approach individual government agencies and ask them if they'd requested my cell phone data.

This seemed to me to be a rather arbitrary approach given the vast majority of Spark's customers are law abiding citizens and should have the right to know how their personal information is being used and, more importantly, if it is being accessed by government agencies. It is, after all, our data and we should have the basic right, as its owner, to know how it's being used.

I thought Spark's position needed to be evaluated and passed the matter on to Privacy Commissioner John Edwards. His findings have been crystal clear. In this case he's found it was wrong for Spark to take a blanket approach and that it should treat every such request individually. He's also found it's Spark's job to check with government agencies as to if there are issues around it revealing details about their access to cell phone users' data. John Edwards is pulling no punches, describing Spark's response as unsatisfactory and one that undermines peoples' rights.

Spark is now reviewing its privacy policies but, it has to be said, it as some serious reservations about the current state of affairs. It feels it has obligations under legislation to deal with government agency requests when they are made but it also believes that legislation doesn't set a clear process for it to follow when its customers make Privacy Act requests of it.

The company's also not happy about having to approach individual government agencies every time a customer privacy request is lodged. Spark points out this involves substantial work and expense, work it expects to increase as such requests become more common.

But Spark's pleas for changes to the law are falling on deaf ears with Justice Minister Amy Adams. Her view is the current obligations aren't onerous and that Spark simply needs to be better educated about the requirements of the Privacy Act.

And for those who are curious about the final result - Spark hadn't passed my cell phone records onto any government agencies. While this is reassuring to know, it was rigmarole to get to this outcome and it seems a little ludicrous that something so simple ended up being so complex.

Felix Marwick is the Chief Political Reporter at Newstalk ZB.