This background note outlines the types of communications data generated by use of the Internet, email and phones, why law enforcement agencies want it retained, and what existing access law enforcement agencies have to such data.
The Government’s interest in establishing a data retention scheme appears to date back to at least early 2010 when rumours that the Government was considering such a scheme were revealed in June of that year. The parliamentary inquiry into The adequacy of protections for the privacy of Australians online by the Senate Standing Committees on Environment and Communication which commenced a week after the rumours broke, focused part of its investigations on the issue of data retention. In its April 2011 report, one of the Committee’s recommendations in relation to data retention, amongst a number of criticisms, was to ‘consult with a range of stakeholders’.
On 4 May 2012, the Government announced plans to review via public consultation a range of national security legislation, including that which covers ‘lawful access to telecommunications … to ensure that vital investigative tools are not lost as telecommunications providers change their business practices and begin to delete data more regularly’.
In July 2012 the Commonwealth Attorney-General’s Department released a Discussion Paper, Equipping Australia against emerging and evolving threats, on the proposed national security reforms. Chapter One outlines the terms of reference for an inquiry by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) into the ‘potential reforms of National Security Legislation’, namely the:
- Telecommunications (Interception and Access) Act 1979
- Telecommunications Act 1997
- Australian Security Intelligence Organisation Act 1979, and the
- Intelligence Services Act 2001.
The Attorney-General has grouped the proposals into three categories—those the Government wishes to progress, those the Government is considering, and those on which the Government is expressly seeking the views of the Committee. Of the eighteen primary proposals and the forty-one individual reforms that they comprise, the suggestion that carriage service providers (CSPs) be required to routinely retain certain information associated with every Australian’s use of the Internet and phone services for a period of up to two years (‘data retention’) is the issue that seems to have attracted the most attention:
- Applying tailored data retention periods for up to 2 years for parts of a data set, with specific timeframes taking into account agency priorities, and privacy and cost impacts.
This is despite the fact that the data retention proposal appears in the third category of reforms referred to above (as part of reforms to the Telecommunications (Interception and Access) Act 1979—the TIA Act), perhaps making data retention a less certain prospect than many of the other suggested reforms in categories one and two.
Debate on the pros and cons of this and other proposals has quickly gathered pace. However, while there has been a lot of talk about the cost, practicalities, and privacy implications of such a scheme, there has been comparatively little discussion of what sort of data is generated and what ‘data retention’ actually means.
By drawing on information related to similar proposals introduced in the United Kingdom (UK) in June 2012, this Background Note outlines the types of communications data generated by use of the Internet, email and phones, why law enforcement agencies want it retained, and what existing access law enforcement agencies have to such data. In this context, it also explores the reasons for the proposals, outlines some of the concerns and touches on some of the challenges involved. However, it does not specifically examine the arguments for and against a data retention scheme, or the growing debate over its privacy implications.