Data retention: Telstra predicts metadata will surface in lawsuits

Metadata retained under the proposed data retention scheme could potentially be used in piracy lawsuits

Telstra is expecting the metadata telcos will be forced to collect under the government's mandatory data retention scheme will be used in civil litigation, raising the possibility of it being used in cases such as copyright infringement lawsuits or family law disputes.

In its submission (PDF) to the inquiry into the government's data retention bill, Telstra said it expected "to receive an increase in the number of court orders we receive to make customer data available to the courts as part of civil ligation proceedings that otherwise does not involve Telstra".

"These court orders can already be quite resource intensive to comply with today as they often require the telecommunications company to interpret the data for the courts. Also industry does not have the option of cost recovery on court orders. Telstra recommends that industry be given the ability to recover the costs arising in providing information in response to court orders," the submission states.

Last year Attorney-General George Brandis claimed that metadata retained under the scheme "can't be and they won't be" used to pursue Australians engaged in online copyright violations.

"The mandatory metadata retention regime applies only to the most serious crime — to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool," Brandis told ABC's Q&A program.

The laws will apply "only to crime and only to the highest levels of crime," the attorney-general said. "Breach of copyright is a civil wrong. Civil wrongs have got nothing to do with this scheme."

Brandis' claim was in response to comments by Australian Federal Police Commissioner Andrew Colvin, told the press conference at which Brandis and communications minister Malcolm Turnbull outlined the proposed data retention regime that metadata was useful for combating "illegal downloads".

Colvin later backtracked from his comments.

Brandis' claim was widely disputed, both because of criminal offences associated with Australia's copyright law and because of the potential for civil litigants to obtain access to data retained under the scheme through court orders.

Internet service provider iiNet is currently challenging an attempt by Dallas Buyers Club, LLC to obtain the details of iiNet customers associated with IP addresses that DBC claims downloaded copies of the 2013 US film Dallas Buyers Club.

DBC and iiNet will be back in court in February.

In addition to seeking a way to recover costs from court orders relating to copyright litigation and other civil cases, Telstra has pushed for the government to compensate telcos for the costs of establishing and maintaining an internal data retention scheme to comply with the law.

"Based on the data set proposed by the Government, this requirement goes beyond Telstra’s current commercial practices and will impose a new regulatory burden and create costs for our business.... Telstra shares the general view of industry that as the cost of this new activity is unrelated to providing services to customers or managing our networks, but is being imposed by Government, public funding should be available to compensate for the upfront capital costs associated with the Data Retention Bill," the submission states.

"Further, the principle that we neither profit from, nor bear the costs of, providing reasonable assistance to agencies should apply to the ongoing operating costs incurred in providing access to this data

"Based on information available to date, we forecast the upfront capital cost associated with building the system necessary to comply with the Bill to be significant. The capital costs will be incurred in building a centralised mediation platform to extract, store, retrieve and process the required telecommunications data for the agencies. In addition, we will need new systems and interfaces between this platform and our existing network elements to extract data we do not currently collect today."

Implementing sufficient protection for the retained data "will contribute to the overall cost impact on our business".

Optus, too, in its submission (PDF) argued that the "data retention obligations will impose a substantial net cost, scheduling and resource impact".

"The proposed obligations will require Optus to put in place a set of arrangements to collect, store and retrieve data that it does not currently have in place today (or only partially exist today) and bear an additional administrative and compliance burden, for example, to develop Data Retention Implementation Plans, reporting arrangements and exemption requests," the telco's submission states.

"The business and security risk faced by Optus also will be affected by the obligations proposed by the Bill."

As a result, the government "should make a substantial contribution to costs incurred by providers in implementing data retention obligations".

"While Optus appreciates the opportunity it has had to work with the Data Retention Implementation Working Group convened by the Attorney-General’s Department which has been focussing in some detail on the data set, the fact remains that draft regulations have not been made available and this omission does restrict service provider’s ability to arrive at definitive views on both the workability and cost of the proposals," the submission states.

The Parliamentary Joint Committee on Intelligence and Security is scheduled to hold its second and third public hearings into the data retention bill on 29 and 30 January.

Follow Rohan on Twitter: @rohan_p

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