Data retention: Just like diamonds, metadata is forever

Appearing today before a Senate inquiry, law enforcement agencies have confirmed that there is no legal obligation on them to destroy so called 'metadata' gathered from warrantless surveillance.

Although the Telecommunications (Interception and Access) Act 1979 imposes obligations law enforcement bodies to destroy records gathered from warranted surveillance, there is no obligation for agencies to destroy 'non-content' data.

Non-content data — or metadata — can include information about communications but not the content of communications; for example the parties involved in a phone call, and the length and timing of the call, or the source, destination and subject line of an email.

Law enforcement agencies represented at today's Senate committee hearing, including the Australian Crime Commission (ACC), South Australia Police, Queensland Police, the Australian Federal Police, the ATO and ASIC, all backed a data retention regime that would impose requirements on service providers in terms of the storage and release to law enforcement of metadata.

The ACC's written submission to the inquiry states that the TIA Act as it stands "negatively impacts upon the ACC’s ability to satisfy its legislative mandate."

"Because of changes in technology, the ACC is hindered in its investigation of serious and organised crime due to the restrictions on its ability to collect and share material obtained under the TIA Act. The loss of data due to the absence of a standard mandatory data retention scheme also has a detrimental impact on ACC investigations, in terms of availability of data and certainty as to the period it will be retained. These issues will increasingly impact the ability of the ACC to fulfil its functions without reform."

"The board [of the ACC] is ... united in support a telecommunications data retention regime including that data be retained for a uniform length of time across all telecommunications service providers," the ACC's acting CEO, Paul Jevtovic, today told the inquiry, which is chaired by prominent civil liberties advocate, Greens Senator Scott Ludlam.

"Telecommunications data is an effective and efficient tool used by law enforcement to identify and investigate organised criminal activity and serious crime."

Jevtovic said that although the organisations represented on the board of the ACC had some differing views about what changes should be made to the TIA Act, "the board as a collective supports reform to the TIA act in recognition that the act does not adequately take into account the significant technological changes over the last three decades."

Jevtovic said that ongoing investigations justify law enforcement organisations' retention of metadata. For example, ongoing investigations into criminal activity by motorcycle gangs.

"If we did an investigation into 'individual A' today and charged that person and then all that information was destroyed, 'individual A' is going to be committing offences the very next morning more than likely, so we will Begin the whole process again," Jevtovic said.

"There are some scenarios like that where it is in our interests, it is efficient and it is a cost factor where that intelligence continues to be relevant to people continuing to commit organised crime."

Jevtovic said he was aware of the recent decision by the Court of Justice of the EU, which earlier this month struck down laws requiring telcos to retain metadata because they interfered with the right to privacy.

The ACC's acting CEO said that what is important are the reasons for the CJEU decision, such as the lack of protection against abuse of the data retention regime. The court's reasoning is not applicable in Australia, he argued. "From my perspective our oversight regime [in Australia] does protect from the risk of abuse," Jevtovic said.

Copyright © 2014 IDG Communications, Inc.

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