Julia Connelly

Australian government’s proposed data retention policy

Julia Connelly

3 December 2012

Confidentiality and Privacy Patents

The Parliamentary Joint Committee on Intelligence and Security (the Committee) in its July 2012 discussion paper, Equipping Australia Against Emerging and Evolving Threats (the Paper) proposes to reform the framework regulating telecommunications infrastructure by amending legislation such as the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act) so that carriers and carrier service providers (C/CSPs) are under obligation to protect their infrastructure (both new and existing) and supervise and control their networks, as well as comply with Government in providing and facilitating access to information concerning national security risks to telecommunications infrastructure.

 

The Paper proposes ‘a tailored data retention scheme’ for periods for up to 2 years for parts of a data set, with specific timeframes taking into account agency priorities, and privacy and cost impacts.’

 

Australian Lawyers for Human Rights (ALHR) outlined its submissions to the Committee on 18 September 2012, including concerns that extending data retention periods to 2 years would represent a substantial breach of the Australian public’s rights to privacy, and a corresponding risk of unauthorised disclosures of private information.   The submission goes on to suggest that increased data access should be coupled with the introduction of mandatory disclosure for data breaches (which Australian privacy law does not currently implement) in order to espouse Article 17 of the International Covenant on Civil and Political Rights.

 

The Hon Nicola Roxon, MP, Attorney-General (Minister for Emergency Management) in a letter to the Committee dated 19 September further elucidates on the data retention scheme by outlining the fact that the data in question concerns the process (cf content) of a communication, entailing information such as the identity of senders/receivers; account information; and the time, date, location and duration of a communication.  The letter emphasises that the contents of communications remain accessible only by obtaining a warrant issued under the TIA Act.  It also explains that the proposed reforms have been triggered by the increased hurdles agencies face in keeping pace with increased technologies and, as a result of these, premature disposal of communications metadata.  One example of this is the telecommunications industry’s practice of charging customers on the basis of data volume (cf individual transactions).

 

Whether The Hon Nicola Roxon MP’s letter satisfies ALHR’s concerns, or whether even retention of communications metadata remains in their opinion a potential breach of Australians’ rights to privacy is a matter left for their further comment.  The Committee’s reasoning behind the proposed scheme, however, especially when considered in conjunction with both proposed reform to government agency strategies in maintaining national security, and with the continued requirement for warrants to be obtained in order to access the actual contents of communications, appears reasonably to strike a balance between securing individuals’ rights to privacy and national security.