Australia’s New Data Retention Legislation

Under new national security laws aimed at stemming terrorism, telcos in Australia will be required to store all metadata on their customers for two years. The bill was introduced into the House of Representatives at the end of October and will go to the Parliamentary Joint Committee on Intelligence and Security, for possible passage before the end of 2014.

The bill has been controversial since it was first raised by Attorney General George Brandis in a calamitous television interview rife with contradictions and confusion. Communications Minister Malcolm Turnbull later clarified some points, although he had been left out of the original discussions, and an unusual joint press conference was held by the head of security agency ASIO and the Australian Federal Police. They noted that Internet service providers (ISPs) already saved the metadata of customers and the new laws would merely systemize practices already in place. That was not entirely true: some ISPs save data but others, such as iiNet, apparently do not. Storing so much data for two years correctly and safely places a burden on these telcos, as iiNet pointed out some months ago. The ISP and its CEO have been critics of the scheme since the beginning.

What will be saved? Even now the bill does not give clear definition of what metadata is, exactly. Also what kind of monitoring might be used for social media communications and use has not been fully explained. According to Fairfax News, “The time, date and location of calls and emails – including source IP addresses – is usually classed as metadata. Authorities will require a warrant to access the content of communications.” Browsing history will not be a part of it, nor will the content of actual communications, according to the government.

Critics have pointed out that extrapolation and inference play a big part when it comes to useful analysis of data. In simplest terms: A phone call to an ex-spouse followed by one to the suicide helpline offers a decent clue to the caller’s feelings.

But the newest worry has been that those illegally downloading television shows or films may be arrested or prosecuted. Turnbull has definitively said that ASIO is not interested in catching pirates; they have their hands full enough with terrorists. Meanwhile AFP chief Andrew Colvin said metadata could “absolutely” be used to track or target pirates.

Of course, what Turnbull left unsaid was the possibility that companies could apply for court orders to access metadata and then go after those illegally downloading their product. Though aimed at terrorism, the metadata collected can be accessed by other parties. Even the Royal Society for the Prevention of Cruelty to Animals has accessed metadata. Australia has a high rate of piracy, owing at least in part to late release dates for some television shows and their high cost on DVD. There have been earlier suggestions that ISPs should be responsible for stopping or reporting customers breaking the law when illegally downloading. Turnbull did make the point that companies are more interested in preventing real-time privacy than historical piracy, though the Napster trials of over a decade ago might argue otherwise.

Labor has said that more community consultation is needed before the government goes ahead with such broad surveillance measures. When Labor was in power the Liberal Party criticized it for its supposed infringement on civil liberties, in the form of its plan to block a large number of websites both illegal and unsavory, such as information on Satanism.

Though Australians seem to remain broadly in favor of anything that stops terrorists, support for the metadata plan is weak, partly because the government has hitherto done a poor job of selling it and partly because people remain skeptical of such broad surveillance measures.