Will retained metadata be used for civil lawsuits?

The Federal Government is calling on feedback from industry stakeholders over proposals to open up mandatorily retained telecommunications metadata to be used in civil lawsuits.

The move comes almost a year after the Parliamentary Joint Committee on Intelligence and Security recommended that civil litigants be barred from being able to access telco data held by service providers solely for the purpose of complying with the government’s mandatory data retention regime, which took effect in October 2015 and requires telcos and ISPs to have retention mechanisms in place by April next year.

In November 2014, the Attorney-General, George Brandis, referred the provisions of the mandatory metadata retention legislation, which compels telecommunications providers and internet service providers to retain non-content data for a mandatory period of two years for use in criminal and national security-related investigations, to the Committee for inquiry and report.

In the course of the Committee’s inquiry into the Bill, a number of submissions expressed concerns that retained telecommunications data would be able to be accessed by parties to civil proceedings.

“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,” the Attorney-General’s Department said in a statement.

Consequently, section 280 of the Telecommunications Act 1997 was amended so that data retained solely for the purposes of the data retention scheme could not be used for civil proceedings, preventing content rights holders, such as Village Roadshow or Foxtel, from using mandatorily retained metadata to go after copyright infringers.

“However, the committee also indicated that it was aware of the potential for unintended consequences resulting from a prohibition on courts authorising access to data retained under the scheme and recommended that the Minister for Communications and the Attorney-General review this measure,” the Attorney-General’s Department said.

Ultimately, the Committee recommended that the Bill be amended to include a regulation-making power to enable provision for “appropriate exclusions”.

In making this recommendation, the Committee cited examples of “family law proceedings involving violence or international child abduction cases” as potential classes of matters that could be excluded from the scope of the prohibition.

But the Committee stopped short of prescribing how a regulatory power would work when it comes to what should be excluded, and further recommended that the Minister for Communications and the Attorney-General review the measure and report to the Parliament on the findings of the subsequent review by 13 April 2017.

Now, the Attorney-General’s Department is moving to rush through a public consultation period of the proposed provision, giving industry stakeholders until 13 January 2017 to submit a response to the proposal.

“In essence, the legislation is designed to preserve the longstanding power of courts to order access to relevant telecommunications data in civil proceedings while limiting access to data that has been retained solely for the purposes of the data retention scheme,” the government said in its consultation paper.

“The Committee’s recommendation to include a regulation-making power, which the Government accepted, is designed to mitigate the risk that restricting parties to civil proceedings’ access to such data could adversely impact the effective operation of the civil justice system, or the rights or interests of parties to civil proceedings,” it said.

Meanwhile, Internet Australia has slammed the government's move to call for submissions over the Christmas period for what the internet user peak body calls a "radical expansion of its controversial data retention scheme".

Internet Australia CEO, Laurie Patton, said that the independent organisation is concerned about the privacy implications of such a move.

“This takes us into uncharted waters when it comes to using communications technology and personal data in court cases involving private individuals and which have nothing necessarily to do with criminality,” Laurie said.