Data retention and the end of Australians' digital privacy

Quentin Dempster

Contributing editor

The digital privacy of Australians ends from Tuesday, October 13.

So, the fact that you visited a porn site or infidelity site Ashley Madison or 'jihadi' content sites, may in effect be discoverable without the need for a warrant. 

On that day this country's entire communications industry will be turned into a surveillance and monitoring arm of at least 21 agencies of executive government.

Metadata spy.

The electronically logged data of mobile, landline voice (including missed and failed) calls and text messages, all emails, download volumes and location information will be mandatorily retained by Australian telcos and ISPs.

Intelligence and law enforcement agencies will have immediate, warrantless and accumulating access to all telephone and internet metadata required by law, with a $2 million penalty for telcos and ISPs that don't comply.

There is no sunset clause in the Abbott government's legislation, which was waved through parliament by Bill Shorten's Labor with only minor tweaks. The service providers are to keep a secret register of the agency seeking access to metadata and the identity of the persons being targeted. There is nothing in the Act to prevent investigative "fishing expeditions" or systemic abuse of power except for retrospective oversight by the Commonwealth Ombudsman. That's if you somehow found out about an agency looking into your metadata - which is unlikely, as there's a two-year jail sentence for anyone caught revealing information about instances of metadata access.

Over time, your metadata will expose your private email, SMS and fixed-line caller traffic, consumer, work and professional activities and habits, showing the patterns of all your communications, your commercial transactions and monetised subscriptions or downloads, exactly who you communicate with, and how often.

People are being asked by the Federal Parliament to accept that this regime of agency access is vitally necessary for national security at a time of geo-political tension, jihadi recruitment and the war on terror. But in a country where the biggest terrorism threat comes from lone wolves and random acts of terror, it's a system that appears singularly ill-equipped to catch terrorists. What it does is render privacy a thing of Australia's past.

Security, intelligence and law enforcement access to metadata which overrides personal privacy is now in contention worldwide.

In the US the recently passed Freedom Act constrains security agencies' access to call records not considered essential for preventing terror attacks. In Israel, facing far more immediate security concerns than Australia, there is no mandatory metadata retention law as it is not seen as a proportionate response to the security threats the country faces.

Technology analyst Nick Abrahams of law firm Norton Rose Fulbright told Fairfax Media the European Union Court of Justice had declared an EU directive invalid last year causing member states including Britain into a review and reform scramble.

But in contrast, China is expanding its data retention laws.

"[In China] there are wide powers [coming] for relevant government agencies to request information, including the right to request any encryption software used by the telcos," Abrahams said.

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