Labor waves through data retention

Cost, security concerns not addressed

Labor today joined with the Coalition to pass the government’s amended data retention legislation in the lower house.

The bill was opposed only by independent MPs Andrew Wilkie and Cathy McGowan and the Greens’ Adam Bandt.

The government claimed the amendments addressed the changes proposed by the Parliamentary Joint Committee on Intelligence and Security’s report on data retention, including adding additional protection if law enforcement agencies seek journalists’ telecommunications data for the purposes of identifying the source of a story.

A public interest advocate will offer oversight of warrants obtained for such a purpose.

“Warrants may allow a judge to determine which journalists the government agencies can pursue for their metadata,” said Paul Murphy, the CEO of the union that represents journalists, the Media Entertainment and Arts Alliance.

“But journalists don’t get to choose – their ethical obligation is to protect the identity of a source in all cases. And as has happened in the past, if they are hauled before a judge in a future trial of the alleged source, the journalists’ ethical obligation demands that they refuse to confirm the identity of a source, leaving the journalist facing the prospect of a jail term and a fine for contempt of court.”

Disclosing the existence or non-existence of a warrant for a journalist's telecommunications data can lead to a two-year jail term.

The amended bill mandates encryption for data retained under the scheme but does not set out any details about the strength or type of encryption.

The CEO of telco organisation Communications Alliance, John Stanton said that it is “impossible to guarantee that all service providers will be able to encrypt all data”

“The amendment should be refined to reflect this reality and to give service providers greater discretion to use appropriate data protection strategies,” Stanton said.

During debate, Communications Minister Malcolm Turnbull acknowledged that the legislation does not require on-shore storage of data.

Such a requirement might be part of a separate ongoing reform process that will mandate security standards for the telecommunications industry, the minister said.

Commenting on the amended bill, the CEO of the Internet Society, Laurie Patton, said that although the amendments improved the legislation, the level of government contribution to ISPs’ costs remained a concern

“The government has only given a very rough indication of the anticipated industry costs of implementing and operating the scheme,” Patton said.

“It has accepted the Parliamentary Joint Committee on Intelligence and Security’s recommendation to provide financial support but there is no information on how this will be determined.

“What's more, there has been no mention of the ongoing (opex) costs. Only the capex component. There will [be] substantial compliance costs that will be ongoing and could cripple a significant number of the 250+ ISP's that will be affected. Some could simply go broke.”

“The burden of encryption will … tend to fall more heavily on smaller service providers, particularly if the legislation means they have to invest to retrospectively include encryption capability into existing IT systems to meet this requirement,” Stanton said.

“In circumstances where the government still refuses to say how much it is willing to contribute to the costs it is imposing on industry, this amendment adds further to the worrying uncertainty for industry and the potential additional costs for Australian telecommunications users.”

The bill now heads to the Senate.