[AusNOG] DR access for civil litigants, here it comes

[Paul Wilkins]

*However, the committee also indicated that it was aware of the potential
for unintended consequences resulting from a prohibition on courts
authorising access to data retained under the scheme and recommended that
the Minister for Communications and the Attorney-General review this
measure.*
Such unintended consequences including:
1 - inability to do DR discovery in domestic violence/stalking/revenge porn
situations
2 - inability to do DR discovery against sources/disseminators of fake news

These interests then have to balanced against
3 - protections of democratic rights of privacy and free speech
4 - the work of the intelligence services

The risk is, that the government is under constant pressure of rights
holders to allow discovery in copyright cases, which would see huge amounts
of internet traffic diverted to encryption, and so sabotage the purpose of
DR and the efforts of the intelligence/security services. Which our
government said was never their intention, so one wonders if 1 & 2 are the
only things driving reopening this can of worms. I can see there is a case
for extending disclosure in such cases, but once you open the door, other
things have a way of finding a way through.

Kind regards

Paul Wilkins


On 20 December 2016 at 14:27, Noel Butler <noel.butler at ausics.net> wrote:

> I'm sure this will surprise no one here...
>
> https://www.ag.gov.au/Consultations/Pages/Access-to-
> telecommunications-data-in-civil-proceedings.aspx
> Access to telecommunications data in civil proceedings
> Submissions close on Friday, 13 January 2017
>
> The Attorney-General’s Department is inviting submissions to support a
> review by the Minister for Communications and the Attorney-General into
> access to telecommunications data in civil proceedings.
>
> The Parliamentary Joint Committee on Intelligence and Security Advisory
> report on the Telecommunications (Interception and Access) Amendment (Data
> Retention) Bill 2014
> <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Data_Retention/Report>,
> recommended that civil litigants be prohibited from being able to access
> telecommunications data held by a service provider solely for the purpose
> of complying with the mandatory data retention regime.
>
> The committee considered that as the data retention regime was established
> specifically for law enforcement and national security purposes, as a
> general principle it would be inappropriate for data retained under the
> scheme to be drawn on as a new source of evidence in civil proceedings.
>
> However, the committee also indicated that it was aware of the potential
> for unintended consequences resulting from a prohibition on courts
> authorising access to data retained under the scheme and recommended that
> the Minister for Communications and the Attorney-General review this
> measure.
>
> Consequently, section 280 of the *Telecommunications Act 1997* was
> amended such that data retained solely for the purposes of the data
> retention scheme cannot be used for civil proceedings. That prohibition
> commences on 13 April 2017. The provision includes a regulation making
> power to enable appropriate exceptions to be made.....
>
>
> --
>
> Kind Regard,
>
> Noel Butler
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