Australia telcos warn: Opening metadata access will create a 'honeypot' for lawyers

Government rushing data retention review

Australia's telecoms industry advocacy body the Communications Alliance is renewing its push for the federal government to revise its data retention regime, amid fears that a review will see stored data sucked into civil lawsuits.

The take-out-the-trash timing of the review, announced in the afternoon of Friday December 23, meant Vulture South grazed on the issue rather than addressing it in detail.

The announcement says: "The review is considering whether this data should be available for civil justice purposes, and if so, in what circumstances. The review is also considering the regulatory burden on the telecommunications industry in responding to these requests, and the privacy of communications."

That, according to Communications Alliance CEO John Stanton, risks creating a honeypot for civil litigants.

In an Australian Broadcasting Corporation radio interview today, Stanton reiterated that the legislation creates confusion about what service providers would have to supply in response to a civil court order. The government has always maintained that the data retention regime is designed as a response to serious criminal matters, but lawyers have long warned that scope-creep would see it appear in civil cases.

The Register first noted mixed messages about civil use of stored data in November 2014, but at the time the government tried to put a lid on that speculation.

Stanton today said that debate since the December 23 announcement has been "a little misinformed."

"Everything that service providers had retained prior to the data retention regime has been available to civil litigants, if they could get a subpoena or court order," he said.

In the data retention legislation, data held for the purpose of compliance is currently excluded from civil lawsuits.

"So you've got this funny divide," Stanton said. If a service provider receives a subpoena, "they've got to work through all this data" to figure out which they were holding for their own operational purposes, compared to data they were holding "to comply with data retention."

Stanton also seemed concerned that the government might try to resolve this contradiction by relaxing access to stored data. That, he says, will lead to a "honeypot effect," with "more and more litigants seeking access."

The Communications Alliance also hopes it can persuade the government to look at exempting things like sensor applications from the legislation.

"Sensors on farms that are used to monitor rainfall or temperature, or that determine whether the coin tray's full in a soft-drink vending machine ... or parking meters" are currently swept up in the legislation, he said. That's already a burden in terms of storage, and will get worse as more and more "things" connect to service provider networks.

"There's an enormous amount of data that's of no interest to law enforcement agencies," Stanton said.

The Register would note, however, that agencies probably love at least some "thing" data – for example, electricity metering to help them spot hydroponics labs producing weed.

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