The data retention bill - it just won't work

The government’s data retention legislation is a threat to civil rights protections and needs to be fixed.

The Internet Society of Australia has told a parliamentary inquiry into data retention that the government’s legislation needs redrafting. While we understand the need for measures to deal with the increasing risks to national security, our extensive analysis of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill has concluded that, quite simply, it will not work.

In its current form the Bill contains loopholes that technically sophisticated organisations - including the ones the government seeks to target - will be able to find ways to avoid surveillance.

There are three areas in the Bill that are drafted very broadly and which we believe should be redrafted to strike a more appropriate balance between the individual’s right to privacy and the legitimate needs of law enforcement and security agencies to access data. These are:

• the definition of the data to be retained
• the agencies and organisations that will have access to the data
• the grounds on which access to data will be granted

We have recommended a total rethink and we have offered to assist the government by providing the technical and policy advice and assistance of our members. Our directors and members hold significant roles in internet-related organisations so we are ideally placed to provide policy and technical information and advice to the government.

In our submission to the inquiry we argue that the Bill is deeply flawed, its coverage is unclear and it does not reflect the complexity and diversity of internet communications. We believe it will add significant costs to service providers - which will doubtless be passed on to consumers - and it will seriously hamper competition.

As it is currently drafted, the Bill will not reach some offshore communications services widely used by many Australians and will therefore create disincentives for Australians to use Australian-based services. This will clearly impact on the growth of the Australian digital services economy.

The Bill represents a challenge to Australians’ right to privacy protection, with potentially negative impacts on the confidence Australians have in their internet use. It shifts the balance away from the protection of Australians’ civil rights and towards an expanded ability of law enforcement and intelligence agencies to access our personal information. It leaves too much to the discretion of the incumbent Minister (the Attorney-General).

We contend that excluding detailed definitions of the data to be retained, who can access it and on what grounds means that the ability of the parliament to perform proper scrutiny and oversight of this legislation is seriously undermined.

The consultation process used to determine what data is to be retained is as yet undefined and to date has excluded many important stakeholder groups. So we have urged the government to involve a broader range of stakeholders.

*Laurie Patton has recently joined the Internet Society of Australia as CEO. Laurie had extensive experience as a journalist and media executive before moving into consulting roles in business development, marketing and government relations.

Note: Since this article was written, the Internet Society of Australia has appeared before the Parliamentary Joint Committee on Intelligence and Security. At the committee’s request, the society subsequently provided a supplementary submission containing detailed explanations of the technical flaws in the data retention Bill. The committee’s report has been released and it recommends a number of changes to the Bill proposed by the Internet Society.