When mandatory telecommunications data retention legislation was first introduced — the so-called “metadata” retention laws — Australia’s favourite Attorney-General Senator George Brandis QC stressed that it wouldn’t be used to chase copyright infringers.
“They can’t be and they won’t be,” Brandis said of the laws on ABC TV’s Q&A in November 2014.
“The mandatory metadata retention regime applies only to the most serious crime, to terrorism, to international and transnational organised crime, to pedophilia, where the use of metadata has been particularly useful as an investigative tool, only to crime, and only to the highest levels of crime. Breach of copyright is a civil wrong. Civil wrongs have nothing to do with this scheme.”
On Tuesday, Brandis’ office announced a review of the laws to see whether retained metadata could be used — wait for it — in civil proceedings.
This bait-and-switch tactic for extending the scope of surveillance powers, and other laws which reduce civil liberties, is more than familiar, of course.
What Brandis said in 2014 was already misleading.
He cited the usual unholy trinity of bad guys — terrorists, transnational criminals, pedophiles — before other crimes were waved through. The “highest levels of crime” included anything that might attract a jail term of two years. That includes a lot of stuff that falls way, way short of being a threat to our national security or to the sanctity of childhood.
The government passed amendments that watered down the legislative ban on using data for civil proceedings.
Section 280 of the Telecommunications Act 1997 now prohibits the release of metadata in response to subpoenas, notices of disclosure, or other court orders in connection with civil proceedings. But that ban only applies if the data is being retained solely to comply with the mandatory retention regime. If the data is also used by the telco for its own business purposes, it’s fair game.
Section 280 also allows the release of data “in circumstances of a kind prescribed by the regulations”, and regulations can be added in with significantly less scrutiny.
So as things stand, there’s already plenty of room for Brandis to do a cynical little wiggle or two.
The cynicism of this new review, however, is a whole new dance form.
The Consultation Paper — Access to Retained Data in Civil Proceedings [PDF] — provides just a page and a half of background information, plus the relevant extracts from the legislation, and the review has limited scope.
While the review seeks “the views of stakeholders with an interest in the civil justice system and privacy”, it suggests just three discussion topics:
- In what circumstances do parties to civil proceedings currently request access to telecommunications data in the data set outlined in section 187AA of the Telecommunications (Interception and Access) Act, usually called the TIA Act?
- What, if any, impact would there be on civil proceedings if parties were unable to access the telecommunications data set as outlined in section 187AA of the TIA Act?
- Are there particular kinds of civil proceedings or circumstances in which the prohibition in section 280(1B) of the Telecommunications Act 1997 should not apply?
In 2014, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) suggested the such exclusions might include “family law proceedings involving violence or international child abduction cases”.
But for years, big copyright holders have been lobbying for access to internet “filtering” and users’ metadata. Brandis has usually rolled over when copyright holders asked. Doubtless this will be the case once more, which makes using domestic violence as a fig-leaf particularly obnoxious.
A cynic might even wonder whether the guaranteed-to-be-ineffective blocking of piracy sites was a stalking horse, designed to fail so copyright holders would have more leverage in the metadata debate.
Most cynical of all, though, is the timing.
The review was announced in the final few days before Christmas, and submissions close on January 13. That’s just 15 working days, during most of which many stakeholders will be on vacation.
There aren’t many possible explanations for this.
Is Brandis deliberately trying to limit democratic discussion of a major change to data retention laws, so that only the government’s wishes are heard?
Is Brandis so incompetent at scheduling the work of his office that he’s had to rush things through over the holidays, and damn the quality?
Or is Brandis just recklessly indifferent to any of these issues, so long as he gets to relax and read poetry over summer?
You choose. Whatever the reason, democracy suffers.