[AusNOG] Metadata retention... it's now (almost) a thing

[Mark Newton]

On 31 Oct, 2014, at 1:14 pm, Noel Butler <noel.butler at ausics.net> wrote:
> Thats tends to suggest that, one could argue the court has no authority in law to compel release of that stored data in civil matters. Neither of us are lawyers, but one could reasonably assume that to be the case, I guess it might take a High Court challenge to answer that for certainty.
> 

Section 110A prescribes a list of law enforcement agencies which can access stored data without requiring an intervention from a court.

The Bill is completely silent on what happens when a court order has been provided.

Courts already have wide discretion to compel disclosure of virtually any stored document.  There is nothing in this Bill which exempts data retention repositories from those processes.

So far we've seen representatives from the legislative branch and the executive branch state that the repositories will be discoverable, and the black and white text of a bill which doesn't exempt repositories from discovery. 

You can keep insisting that courts won't be able to exercise jurisdiction over it if you want, but you're going to feel a bit silly about it if you do, when a subpoena arrives on your desk. "You have no authority," will be a particularly hilarious argument for you to make.

   - mark


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