The Inspector-General of Intelligence and Security (IGIS) has told the government it's forgotten to set down how long ASIO is allowed to keep
metadata handed over by telecommunications companies.
The Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 requires that carriers hold data for two years. However, once that gets hoovered into ASIO, it could be retained forever.
Inspector-general Dr Vivienne Thom's submission to the inquiry says there is no current law, nor any requirement in the bill, that limits ASIO's capacity to hold telecommunications data.
“There is no requirement in the TIA Act, the ASIO Act or in the Bill that would require ASIO to destroy telecommunications data it has obtained from a carrier after a certain period of time, nor is there any legislative requirement for ASIO to make an active decision as to whether telecommunications data (or other material) is not relevant or is no longer relevant to security and to destroy that material”, Dr Thom writes.
In fact, she writes, it's easy for ASIO to decide not to delete data collected under warrants: all it needs do is decide not to bother making a decision.
Although the current interception regime requires destruction of records “if the Director-General is satisfied that the records are not required”, the D-G isn't required to reach that decision:
“I have recently been advised by ASIO that the power had not been delegated and that the Director-General does not currently make any decisions under these provisions. Therefore currently no records are destroyed under these provisions”, she writes.
While she says ASIO is diligent in meeting its legislative requirements, it seems that the agency is very good at interpreting those requirements to the letter. The problem, in other words, is not a non-compliant ASIO, but laws that don't tie its hands tightly enough.
Unsurprisingly, the submission notes that “ASIO record retention practices have been identified as an area for IGIS inspection in 2015”.
Dr Thom also offers a veiled warning to the telecommunications industry: whatever data carriers collect about their customers can be swept up in a spook request. If carriers “do retain more than the minimum required then whatever information they retain, so long as it is not content, will be able to be accessed”, she writes.
That poses a problem for carriers, Dr Thom suspects, because service providers might find it cheaper and easier to “store everything” than to try and filter the retained data to meet the government's minimum standard.
The Register notes that the minimum data set to be retained is defined not by the letter of the legislation, but rather by regulation. The risk that the data set could change in the future would, it seems to Vulture South, represents an incentive to over-collect. And what could possibly go wrong with that?®