What is happening?

As stated on the Attorney General's website:

The Attorney-General’s Department is inviting submissions to support a review by the Minister for Communications and the Attorney-General into access to telecommunications data in civil proceedings. 

The Parliamentary Joint Committee on Intelligence and Security Advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, recommended that civil litigants be prohibited from being able to access telecommunications data held by a service provider solely for the purpose of complying with the mandatory data retention regime. 

The committee considered that as the data retention regime was established specifically for law enforcement and national security purposes, as a general principle it would be inappropriate for data retained under the scheme to be drawn on as a new source of evidence in civil proceedings. 

Obviously civil cases have nothing to do with 'national security purposes' and would represent a significant increase in the use of this meta data.

 

What is meta data?

Meta Data is information that the government requires internet service providers and phone companies to collect in relation to your internet usage, and the phone calls and texts that you make.  While the data collected doesn't include the content of the phone calls or texts, it does include who you called or texted and when.  Additionally, while the content collected doesn't include what you did on a website, for instance if you visited a public message board it won't say what you posted there, and it will say who you emailed but not what the content of the email was.  It does include information about when you visited sites and which sites you visited.

 

The government passed these laws with bipartisan support on the basis that they were going to be used for 'serious crimes' like terrorism.  The most concerning part of the laws from the point of view of the legal community was the ability that the government gave itself to access this information without a warrant.  If the information is needed for the prevention of 'serious crimes' then obtaining a warrant to access that information shouldn't be an issue.

 

What are the changes?

The government is now talking about giving access to this information in 'civil' legal cases.  Currently only government departments can access that information.  This is not something that lawyers on the whole believe should happen, and the president of the Law Council of Australia, Fiona McLeod, said she had "grave concerns" about the possible extension of the powers.

 

The examples given though are by and large family law cases (which are not, in fact, civil cases) and cases involving domestic violence or child abduction (which are crimes which would undoubtedly result in a government department accessing the data).  Some other examples include internet piracy or child pornography, but surely these people will be smart enough to cover their tracks, and if they didn't then the government departments could access this information under existing legislation.

Surely all that the meta data would be used for in civil proceedings is arguments about who visited websites that they shouldn't have, or who had an affair, both of which are largely irrelevant in family law proceedings.  Rather than help in these matters, they might just create more points of conflict for the parties and delay settlement or derail it.

 

Can meta data be avoided?

In short, yes.  There are plenty of articles online about how to avoid meta data retention, like this article, and those articles are not aimed at criminals but just ordinary people who don't like the idea of people keeping records on everything they do.  Allegedly Malcolm Turnball uses one of the internet messaging systems, instead of text messages, which encrypts the data so that data retainers and others cannot tell who he has messaged.

 

Simple measures like routing your internet through a VPN (Virtual Private Network) that is located in a country that doesn't have data collection laws, and turning off your mobile phone before committing any crime, will mean surely that many serious criminals will not be caught by these laws in any event.  Additionally the idea of a 'burner' mobile phone is pretty common place, and with pre-paid plans these days not difficult or expensive to access.  Those of us who don't worry about these measures, because we are law abiding citizens, all of our data will be collected and stored.

 

What about criminal cases?

What is odd about all of this is that they aren't talking about opening the meta data access to criminal cases.  Government departments, like the Police can access the data, but not a Defendant to defend themselves.  This is perhaps not odd if you are a politician who believes that all people charged with a crime must necessarily be guilty, but if you are a defendant trying to prove your alibi you may want to access your own meta data to obtain the location of your mobile phone at the time of the alleged incident.

 

What can you do?

If you have an opinion about any of this, the matter is actually currently open for public comment.  The link to the right will take you to the Attorney General's website where you can make a submission in relation to these proposed changes.  Submissions must be received by 5.00pm AEDT on Friday 27 January 2017.