This post was originally published on March 26, 2015.
After several days of debate, the Australian government finally secured a deal with the opposition party on Thursday which saw the passing of new and highly controversial data retention bills.
The Labor opposition party had previously dragged its heels on approving the Bill, saying it required a provision for a “Public Interest Advocate” – someone who could side with media companies and assess whether the capturing of data from journalists was indeed in the best interests of the public.
On Thursday, Communications Minister Malcolm Turnbull told the House of Representatives that such an advocate would indeed be created, as well as a provision that would require a warrant to be issued where metadata was to be accessed in an attempt to identify a journalist’s source:
“The government has announced that it will move amendments to require a warrant to access data for the purpose of identifying a journalist’s confidential source. It will also establish a public interest advocate that will have a role in respect of making submissions in respect of those warrants”.
Furthermore, the new legislation will actually make it an offense to disclose or use information relating to warrants for journalists’ information. Simply disclosing “the existence or non-existence of such a warrant” could land an offender in jail for up to two years.
As part of the negotiations, the coalition government and opposition party also disclosed the “kinds of information to be kept” but fell short of explicitly defining the exact criteria for data retention. What is known is that some of the data to be kept will include subscriber information, subscriber contact information, identification of the source and destination of communications and the date and time at which the contact was made.
A vast array of communications data will be retained too, including voice calls, text messages, emails, chat logs, forum posts and social media messages.
The type of service used will also be recorded, such as LTE, ADSL, Wi-Fi or VOIP, as will the location of the equipment at the time the communication took place. The location of source and destination cell towers or Wi-Fi hotspots will be noted and all of the data will be stored for a period of two years.
With regular citizens not experiencing the same protections as journalists, there has been some concern from privacy advocates who fear the government may be able to use the new laws to track ordinary citizens without the need for a warrant.
The proposed bill will only collect metadata but, as already mentioned, the definition of that metadata is vague to say the least. Even with a limited amount of information the government could profile a given individual, learning where they go and who they talk to, and when.
The Australian government naturally responded with the counterclaim that increased storage of telecommunications data was an essential part of its program of tackling terrorism and ensuring national security.
On a more positive note, the amendments do recommend that civil litigants should be blocked from accessing data held as part of the retention program and that each individual should have the right to access their own metadata which itself would remain encrypted.
The attorney-general, however, will have the power to make instant changes to the type of data that is retained as well as the unilateral ability to gain access to it. Any such changes can only occur in “emergency circumstances” and will be effective for a maximum period of forty days – unless legislation is subsequently brought in to extend that timescale.