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

[Noel Butler]

On 31/10/2014 10:21, Mark Newton wrote: 

> On Oct 31, 2014, at 9:32 AM, Noel Butler <noel.butler at ausics.net> wrote:
> 
>> I think you'll find he's overstepped the mark, as we both know, copyright infringement is a civil mater not criminal,
> 
>> Turnbull made it perfectly clear this morning that any data in a carriage service provider's data retention repository will be available for subpoena under civil discovery.

Hrmm, haven't heard that one, but that would be at odds with whats
written...

Schedule 2--Restricting access to stored 1 communications and 2
telecommunications data 3
Part 1--Main amendments 4
Telecommunications (Interception and Access) Act 1979 5 

1 Subparagraphs 107J(1)(a)(i) and (ii) 6
Omit "an enforcement agency", substitute "a criminal law-enforcement 7
agency". 8 

2 Subsection 110(1) 9
Omit "An enforcement agency", substitute "A criminal 10 law-enforcement
agency". 11 

3 After section 110 12
Insert: 13 

110A Meaning of criminal law-enforcement agency 14
(1) Each of the following is a criminal law-enforcement agency: 15
(a) the Australian Federal Police; 16
(b) a Police Force of a State; 17
(c) the Australian Commission for Law Enforcement Integrity; 18
(d) the ACC; 19
(e) the Australian Customs and Border Protection Service; 20
(f) the Crime Commission; 21
(g) the Independent Commission Against Corruption; 22
(h) the Police Integrity Commission; 23
(i) the IBAC; 24
(j) the Crime and Corruption Commission of Queensland; 25
(k) the Corruption and Crime Commission; 26
(l) the Independent Commissioner Against Corruption; 27
(m) subject to subsection (7), an authority or body for which a
declaration under subsection (3) is in force. 

(ignore the funny numbers, my pasting from the PDF got screwy)

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.

>> and the new bill makes it pretty clear access to the data can only be for criminal investigations,
> 
> No, the new bill makes it pretty clear that access without a direction from a court can only be instigated by law enforcement agencies.
> 
> If you're a carriage service provider and Village Roadshow lands a subpoena on you, you don't seriously think that you're going to ignore a court order, do you?

if I was a carrier, I certainly would challenge it, based on the above
wording. 

 
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