Friday, 20 March 2015 06:26

Data retention bill passes lower house Featured

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The Government’s data retention legislation has passed through the House of Representatives, with only three members voting against it. It now heads for the Senate.

The ALP combined with the Government to vote for the Bill. The only dissenting voices were the three members not part of the ALP or Coalition – the Greens’ Adam Bandt and independents Andrew Willkie and Cathy McGowan.

The vote came after a deal was agreed between Prime Minister Tony Abbott and Opposition Leader Bill Shorten to amend the bill to better protect journalists’ sources. The legislation will now include the creation of the position of ‘Public Interest Advocate’ who will be able to argue against police access to a journalist's metadata for the purpose of identifying their sources.

This means that in some cases a judge will determine whether the public interest is served in the disclosure of the journalist's source. But agencies such as ASIO and ASIS will not be subject to this constraint. Labor also insisted that the legislation include a “presumption against issuing the warrant,” setting a higher bar for agencies seeking access.

The Bill was introduced to the House of Representatives late morning by the Minister for Communications Malcolm Turnbull. “Access to metadata plays a central role in almost every counter-terrorism, counterespionage, cyber security and organised crime investigation,” he said, repeating the line the Government has been following in the year since the legislation was first proposed.

“It is used in almost all serious criminal investigations, including investigations into murder, serious sexual assaults, drug trafficking and kidnapping.” He said that the use of metadata was not new.

“We are talking about the traditional information about telephone calls that we used to get on our telephone bills. We are all familiar with it. It shows the caller, the A-party; the B-party, the called number; the time of the call; the length of the call; and, in a mobile network operator's situation, the location of the call—the nearest base station to which it was connected.


 

 

“That information has been available—it has been kept by telcos often for very long periods, well in excess of two years. In terms of the Internet world, we are talking about the customer IP address. That IP address is connected, to the account holder.

“Again, those records have been kept, in some cases, for a very long time. They have been accessed for a long time by law enforcement, but, there is now the risk that they will not be kept at all or will be kept for very brief periods—and there are consequences for that.

”We are not talking about storing what people are doing online – what they are saying and what websites that are visiting. This is about retaining data for two years that is being retained now, and where there is a concern that, because business practices have changed, they will not need to be retained in the future.”

Turnbull said the bill will establish a common industry standard for data retention practices. He said the Government had accepted all 38 recommendations made by the Parliamentary Joint Committee on Intelligence and Security, which spent five months examining the subject.

Turnbull then addressed the issue of the treatment of journalists. “This raises legitimate questions around the power of law enforcement agencies to investigate journalists' sources. The work that journalists do is just as important in our democracy as the work that we do as legislators, but journalists are subject to the law, like everybody else.

“There was a concern that the bill, by introducing an ability for law enforcement and security agencies to obtain journalists' metadata to investigate sources suspected of illegally disclosing information, and that this ability might have a chilling effect on sources cooperating with journalists, who would be fearful of investigation or prosecution.

“Those concerns are misguided. The bill does not grant law enforcement or security agencies any new powers in the way they access metadata of journalists or anyone else. In fact, agencies have been able to access this type of data for more than 20 years.

“It simply ensures that the types of data that are currently being retained will be retained for a consistent period. There is nothing in the bill, therefore, that should concern journalists about their right to do their jobs and to deal confidentially with their sources. Obviously, journalists should take care to protect their sources.

“The bill provides several new and strengthened safeguard and oversight measures. It reduces the number of agencies which automatically qualify for access to metadata from about 80 down to 20. It introduces, for the first time, comprehensive oversight by the Commonwealth Ombudsman for any law enforcement agency accessing metadata.

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Graeme Philipson

Graeme Philipson is senior associate editor at iTWire. He is one of Australia’s longest serving and most experienced IT journalists. He is author of the only definitive history of the Australian IT industry, ‘A Vision Splendid: The History of Australian Computing.’

He has been in the high tech industry for more than 30 years, most of that time as a market researcher, analyst and journalist. He was founding editor of MIS magazine, and is a former editor of Computerworld Australia. He was a research director for Gartner Asia Pacific and research manager for the Yankee Group Australia. He was a long time weekly IT columnist in The Age and The Sydney Morning Herald, and is a recipient of the Kester Award for lifetime achievement in IT journalism.

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