Data Protection Report - Norton Rose Fulbright

On 13 October 2015, substantial amendments to the Australian Telecommunications (Interception and Access) Act 1979 (Cth) (TIA) took effect to introduce a new metadata retention scheme into the TIA. This scheme requires telecommunications carriers and internet service providers (telcos) operating in Australia to maintain records of certain telecommunications data, known as ‘metadata’, for a period of two years.

What is being kept and why?

Under the metadata retention scheme, the metadata to be kept includes:

  • subscriber or account-holder details;
  • the source of the communication (whether it is an account, service or device);
  • the destination of the communication (whether it is an account, service or device);
  • the date, time and duration of the communication or connection;
  • the type of communication (voice, SMS, email, instant message, forum post or social media) and the type of service used (such as ADSL, Wi-Fi, VoIP or a 3G or 4G telecommunications network); and
  • the location of the equipment or device at the start and end of the communication (such as a mobile tower or Wi-Fi hotspot).

The content of a communication itself is not retained under this scheme. Web-browsing history is also specifically excluded from the metadata retention scheme. In essence, it is the who, when and where of the communication that is being kept, but not the what of the communication.

Under the scheme, metadata is required to be retained so that law enforcement and security agencies can access this data for law enforcement and security purposes (which they can do without needing to first obtain a warrant). In the case of metadata relating to journalists, a specific ‘journalist information warrant’ must be obtained before an agency can access metadata about a journalist.

What is the practical impact for telcos?

The commencement of the metadata retention scheme introduces another set of regulations that need to be complied with. The Australian Government has indicated that it will make a ‘reasonable contribution’ towards the costs of implementing the scheme and has established a fund of AU$131 million for this purpose (which is less than some estimates by the telcos for the total cost of implementing the scheme).

However, the amount and manner of any financial assistance to be provided to individual telcos still remain unclear. A number of media reports also indicate that many telcos have sought approval to enter into ‘data retention implementation plans’, which would allow the telcos up to 18 months to become compliant with the metadata retention scheme.

What is the practical impact for the public?

The introduction of the scheme means that a high volume of metadata will be kept about various online activities and communications of an individual, even though an individual has not committed or been accused of any crime. The Australian Privacy Act 1988 (Cth) will apply to all metadata retained by telcos under this scheme, so existing protections under that Act will cover any metadata retained in relation to individuals.

There is also a risk that, once retained, such metadata could be accessed and used in other ways. Metadata may be a target for hackers or cyber-criminals (although the TIA requires that any metadata collected under the scheme be stored in an encrypted format and protected against unauthorised access or disclosure). Additionally, there is a possibility that metadata could be the subject of a subpoena or otherwise used in civil proceedings (such as commercial litigation or in family law proceedings).

Mandatory data breach notification delayed

When the introduction of a metadata retention scheme was being debated in the Australian Parliament, one of the important recommendations of the Parliamentary Joint Committee on Intelligence and Security was that a mandatory data breach notification scheme should be introduced to provide additional protections. Under such a scheme, Australians would in certain circumstances be notified if there was unauthorised access to, or an unauthorised disclosure of, their personal information that was being held by an Australian Government agency or private sector organisation (which would include the information retained by telcos under the metadata retention regime).

In March 2015 the Australian Government agreed to support this recommendation and indicated that a mandatory data breach notification scheme would be introduced by the end of 2015. The Government also stated that it would consult on draft legislation to introduce such a scheme.

Recent comments by the Australian Attorney-General have clarified the Government’s intention in this regard. The Attorney-General indicated that a bill for mandatory data breach notification laws would be introduced into the Australian Parliament this year, but that the scheme itself would not commence operating this year. As the last sitting day this year for Parliament is 3 December 2015, we expect to see the proposed legislation by early December at the latest. It appears likely the proposed legislation will amend the Privacy Act 1988 (Cth) to introduce the requirement for mandatory data breach notification to Australian Government agencies and private sector organisations that must comply with that Act.

Once mandatory data breach notification does become law, and there now seems little doubt this will occur during the course of the next year or so, it will put a whole new spin on privacy reform. There will be nowhere to hide in the case of a serious privacy breach, with the very real prospect of a costly class action following the breach.

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