Mandatory Data Retention - Repeal Watch

The Science Party will overturn this costly, risky, intrusive and poorly-supported legislation.

Today is the day that all Australians give up their privacy. Records will be kept of all websites you visit, and all communications you have with others. We are entering a period like no other: where any misstep made will be recorded, and the government and staff members of various government bodies will have access to this information without requiring a warrant from a judge.

Under the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, all Australian telecommunications providers must retain telecommunications metadata for two years.

Telcos will be partially compensated for the cost of storing the extra data, but a lack of details surrounding the funding disproportionately impacts smaller providers. Some of the costs may yet be passed onto consumers, effectively introducing a levy on the Australian public to cover the cost of keeping surveillance on themselves.

Warrants will not be required for prescribed law enforcement agencies to access the metadata of regular citizens. As a bargaining chip, journalists were promised greater safeguards from having their metadata accessed: warrants will still be required to access journalists' metadata, to protect whistleblowers. In practice, though, this protection will be enforced by a Government-appointed "public interest advocate" who will argue that non-disclosure of the journalist's metadata is in the public interest. Critically, this advocate is unable to inform the journalist for whom they are advocating that the journalist's metadata is the subject of investigation, obviously leaving the journalist unable to argue why their sources need to remain confidential.

Similar data retention laws in other countries have been rejected, or passed and subsequently repealed or challenged due to the laws being declared unconstitutional. The policy also leaves data open to exposure through either targeted misuse or incompetence. This potentially leaves all citizens open to exploitation and extortion if someone acting with ill-intent has access to this data and discovers information about minor criminal offences, or even simply personal details people feel embarrassed about such as sexuality or health status.

The question is often posed: is the loss of privacy justified if the result is a reduction in serious crime? Whatever the answer, there is no good reason to believe the legislation will achieve this aim. The Attorney-General's Office as well as Prime Minister, former Communications Minister and Wickr user Malcolm Turnbull have indicated that there are a number of ways to avoid at least some of your metadata being accessible. Perhaps because of these ways of circumventing the scheme, similar laws have been found to be ineffective or minimally effective in the Netherlands, Germany and Denmark. The Australian government has had the opportunity to stop this passing but has decided to endorse it anyway.


UPDATE (22/10/2015): On the lack of efficacy of data retention in the USA: 'The security benefits of warrantless surveillance are as clear as mud'.

UPDATE (27/11/2015): The extent of access to 2 years' worth of all Australians' telecommunications metadata is already in question: 'Now all of Australia's racing ministers are demanding metadata access', 'Racing ministers pressure George Brandis to return stewards' powers'.

UPDATE (11/12/2015): WorkSafe Victoria and the Civil Aviation Safety Authority (CASA) have added themselves to the growing list of bodies seeking to access the data retained under the Act.

UPDATE (18/1/2016): A Freedom of Information request has revealed 57 agencies that want access to metadata (the identities of four further agencies were redacted): 'Dozens of agencies want warrantless access to Australians' metadata again'. Compare and contrast the new list with the list of agencies that formerly had access to telecommunications data (many of which were redacted): '61 agencies after warrantless access to Australian telecommunications metadata'. Also, note that Border Force gained access by legislation rather than the usual channels: 'Data retention creep: Border Force granted metadata access'.

UPDATE (30/5/2016): One research group has published their findings regarding how much information can be inferred from mobile phone metadata: 'Evaluating the privacy properties of telephone metadata'. TL;DR: it's quite a lot.

UPDATE (8/10/2016): Public offices without access to metadata have requested that the AFP collect this information for them. The AFP has refused, for now: 'Data Retention Bill: Government departments ask AFP to access metadata after legislation enacted'. Note: you have the right to request the details of any information held on yourself.

UPDATE (21/12/2016): In a move everyone saw coming, 'The govt is considering opening up metadata to civil lawsuits'.

UPDATE (27/01/2017): Read the Science Party's submission to the government's proposal to allow civil litigants to access metadata retained under the scheme.

UPDATE (13/4/2017): On the day that data retention became mandatory, the Attorney General's department announced that retained metadata will not be able to be accessed for civil proceedings.

UPDATE (28/4/2017): It has come to light that the Australian Federal Police without a warrant illegally accessed a journalist's metadata: 'AFP officer accessed journalist's call records in metadata breach'.

UPDATE (28/11/2017): The Commonwealth Ombudsman revealed that after the April breach, the "AFP did not destroy copies of journalist's phone records it unlawfully accessed".


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