Data Collection: Debate Continues as Senate Inquires into Australia’s Telecommunications Interception Laws

Thursday 15 May 2014 @ 12.18 p.m. | Crime | IP & Media | Legal Research

Recent reports of the hearings of the Parliamentary Joint Committee on Intelligence and Security (the PJCIS) in late April 2014 indicate that the debate over how much data should be kept and for how long it can be stored by phone companies,  internet providers and so on and whether or not people are persons of interest is set to continue and is still very much an open question.

As The Guardian reports, on the one hand there are legal and civil liberties groups  like The Law Council of Australia  who say:

". . . there are 'grave concerns' within Australia’s legal community about a renewed push by police and intelligence agencies to require telecommunications companies to store their customer’s private data for two years or more".

On the other hand as The Herald Sun reports , Federal and state police, ASIO, the Crime Commission and other criminal intelligence agencies, law enforcement and anti-corruption bodies:

". . . are pushing for changes to a 35-year-old law [Telecommunications (Interception and Access) Act 1979 (Cth)] to make it easier for them to access phone and internet data when investigating major crimes, including such [crimes] as terrorism or child exploitation".

Background

The PJCIS commenced its inquiry into potential reforms of national security legislation in mid 2012 following a reference to the Committee from the then Attorney-General. The Committee was asked to examine a package of national security ideas comprising:

  • proposals for telecommunications interception reform: looking at lawful access to telecommunications, to ensure that investigative tools are not lost as telecommunications providers change their business practices and begin to delete data more regularly;
  • telecommunications sector security reform: to safeguard and protect privacy, including clarifying the roles of the Commonwealth and state ombudsmen in overseeing telecommunications interception by law enforcement agencies; and
  • Australian intelligence community legislation reform in the form of an authorised intelligence operations scheme, to afford ASIO officers the same protections which currently apply to officers of the Australian Federal Police for authorised operations.

The range of matters also required the PJCIS to consult on measures to address security risks posed to the telecommunications sector, and whether the Government needed to institute obligations on the Australian telecommunications industry to protect their networks from unauthorised interference.

What the Law Enforcement and Intelligence Agencies Want

Essentially the law enforcement and intelligence agencies want access to personal data retained by phone companies and internet providers and a legal requirement imposed on phone and internet providers to retain users’ data for a minimum period (namely two years).

The reasons for this change are said to arise from fears that organised crime groups were outpacing investigators by being in a position to harness sophisticated, encrypted communications tools while law enforcement and intelligence were unable to respond.

As Australian Crime Commission chief executive Paul Jevtovic is reported to have told a PJCIS hearing:

“. . . We want to protect Australian against the threats of serious and organised crime. No more, no less, . . .’’

Another reason are anomalies and inconsistencies in current laws, for example, as the Herald Sun has reported:

"South Australia’s Independent Commissioner Against Corruption (ICAC) has told a Senate inquiry that it is currently able to use electronic data obtained under federal law to investigate corruption allegations. . . But the same information cannot be used to investigate public officials accused of other forms of misconduct".

An anomaly that creates the position where:

"SA Police[are] permitted to provide to the ICAC information that the ICAC cannot use . . ."

Another example of an anomaly is that law enforcement agencies must obtain warrants to tap phones or to access the contents of an email, SMS or voice mail message but do not need warrants to access “metadata’’ which is information about who phone calls were made to, or location tracking of a mobile phone.

Lawyers and Civil Liberties Groups Reaction

As The Herald Sun reports:

". . . civil libertarians believe government agencies — including some local councils — already have too much power to use phone and internet records to gather information on people without first obtaining warrants".

Civil liberties advocates  point to the recent European court decisions striking down the "data retention regime in the EU" because it breached human rights law and was too open to abuse, and argue that the European regime operates much like the regime being sought in the proposals put to the PJCIS by Australian law enforcement and intelligence agencies; namely, that phone companies be required to store private data on their customers for two years, whether or not people are persons of interest.

Further, the issue of storage of data is also raised with civil liberties advocates questioning how the scheme proposed would be enforced in Australia if key information was/is stored by telcos in “cloud” type technology outside the country for example.

The Next Stage of the Debate

The PJCIS continues and it will be interesting to see what eventuates, as The Guardian reports:

"The Abbott government is yet to signal whether it will give agencies what they are seeking on mandatory data retention, but the opposition signalled recently it was willing to revive the proposal which was shelved under the Gillard government before the September election because it was too controversial." 

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