The Turnbull government is currently considering whether to allow civil litigation lawyers access to its controversial mandatory data retention regime. This means that lawyers working on civil cases would be able to access information regarding an individual’s internet and phone usage.
Australia’s data retention laws came into effect on October 13, 2015. They require telcos and internet service providers (ISPs) to store their customer’s metadata for the period of two years.
What is metadata?
Metadata is the information that relates to an individual’s phone calls and online activity. It isn’t the content of calls or emails, but rather relates to the time and date of calls, emails, text messages and internet sessions. It reveals who you’ve been in contact with, and your location at the time.
While some people might believe this information is rather harmless, privacy experts have warned that you can build a fairly accurate profile of a person using it.
Recent research from Stanford University found it can reveal a person’s family and friends, along with detailing their political, professional, religious and sexual orientations.
National security or surveillance?
The Data Retention Act, we were told, was needed for national security and law enforcement. It was one of three anti-terrorism bills introduced to parliament in quick succession in 2014. The threat of returning jihadists was invoked at the time.
Back when the data retention program was announced, Electronic Frontiers Australia’s executive officer Jon Lawrence remarked that there was “no justification for rushing through any society-wide surveillance program,” as the government already had the ability to gather this data on specific individuals they were concerned about.
Currently, warrantless access to this data is reserved to 21 law enforcement agencies led by ASIO.
There’s already been controversy over a large number of government agencies that have been applying to access the retained data, such as Bankstown City Council and Greyhound Racing Victoria.
But now the government wants to open up access to this metadata to lawyers acting on behalf of clients in civil cases, which could include divorce cases, or even copyright infringement.
Right before the holiday period the Attorney-General’s Department (AGD) announced it’s conducting a review of access to telecommunications data in civil proceedings and that it’s seeking submissions for this review by January 27.
What’s outlined in the AGD’s consultation paper
On October 30 2014, the then-Australian communications minister Malcolm Turnbull introduced the Data Retention bill into parliament. And a month later, the attorney-general George Brandis referred it to the Parliamentary Joint Committee on intelligence and security for inquiry.
The committee advised in its report that the bill be amended to prohibit civil litigation lawyers accessing metadata that is being retained due to the requirements of the mandatory data retention regime, as this data is being held solely for the purposes of national security and law enforcement.
The report also outlined that the prohibition should not apply to other telecommunications data that’s already retained by telcos and ISPs. This information – such as data required for a service providers’ business needs – can already be accessed by civil litigators.
According to the AGD’s consultation paper, the committee also recommended that a regulation-making power be established that allowed for “appropriate exclusions” from the prohibition, for cases that involve family violence or international child abduction.
In response to the committee’s recommendations, section 280 of the Telecommunications Act 1997 was amended to prohibit the disclosure of telecommunications data for use in civil proceedings, when the data has been kept as a requirement of the mandatory data retention regime.
From April 13 this year, this amendment will take effect and it will be legally impossible for the metadata retained by telcos and ISPs to be accessed for civil cases.
Access for litigators
However, the government has said it’s now undertaking this review due to the committee’s recommendation that there should be a regulation-making power to provide for exceptions in certain cases.
The AGD said there’s “the risk that restricting parties to civil proceedings’ access to such data could adversely impact the effective operation of the civil justice system.”
And while scenarios given for these appropriate exclusions related to family violence and child abduction, in reality this review could potentially open up access to metadata for a whole range of civil litigation matters.
Laurie Patton, CEO of Internet Australia told the New Daily that, “opening the data retention scheme to civil matters flies in the face of the government’s claim that it was urgently needed in the fight against terrorism and its assurances that its use would be tightly controlled.”
Patton warned that access to metadata could be used by international rights holders to launch claims against individuals who may have been downloading copyrighted materials.
An easily accessed storage system
The stored metadata can be obtained via an access platform called SEDnode. This allows law enforcement agencies to instantaneously access any individual’s metadata without a warrant. SEDnode or secure electronic disclosure has been used in Australia since 2006.
At the time the Data Retention bill was first introduced, Sydney lawyer Michael Bradley outlined that although civil litigation lawyers are already able to access data from telcos and ISPs, the danger of the new system is that it would make it much easier to do so.
Bradley told the ABC that it’s been difficult for lawyers to obtain information from telcos in the past, as they had an enormous amount of data that wasn’t easy to access and they were reluctant to hand it over.
However, under the new regime telcos and ISPs are forced into this uniformed protocol with a clear and consistent method for storing the data, and due to this system the information is much easier to access.
A loss of privacy
Bradley gave the example of an individual who’s been injured at work and is making claims for ongoing disabilities. He said a lawyer could obtain this person’s metadata to see what they’ve been up to. And if they were found to be making gym appointments, then their case could be quite difficult to prove.
“That kind of data, which you can’t argue with, could be very useful for undermining a witnesses’ credibility,” Mr Bradley added.
And as this nationwide invasion of privacy is currently taking place – with the potential to become just that much more invasive – Australia has no Bill of Rights that would establish a right to privacy in Commonwealth law.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.