Data retention: Government consults on use of data in civil court action

Data retention legislation allows government to make exceptions to ban on use of ‘metadata’ in civil litigation

The government is seeking public input on possible exceptions to the ban on the use in civil litigation of data kept by telcos as part of the data retention scheme.

In the lead up to the data retention legislation being put before parliament, the government downplayed claims that the data kept under the scheme could be employed in civil litigation; for example, accessed by rights holders seeking to pursue unauthorised downloaders of copyright material.

Telstra publicly predicted that ‘metadata’ kept under the scheme would make its way into lawsuits.

A parliamentary report into the initial data retention bill recommended changes in order “to include a prohibition on civil litigant access to telecommunications data retained for the purpose of complying with the mandatory data retention regime”.

That prohibition should be relate only to data solely retained by telcos to comply with the data retention regime, the committee’s report stated.

However, the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) report added that the bill should include a regulation-making power that would allow the government “to enable provision for appropriate exclusions, such as family law proceedings relating to violence or international child abduction cases”.

“The Committee does not wish to prescribe how a regulatory power would work when it comes to what should be excluded,” the report stated.

The government accepted the recommendation and amended the bill accordingly. (The prohibition itself takes effect in April next year).

The government has quietly launched a consultation on the regulation-making power in the legislation.

“In essence, the legislation is designed to preserve the longstanding power of courts to order access to relevant telecommunications data in civil proceedings while limiting access to data that has been retained solely for the purposes of the data retention scheme,” a paper released by the government states.

The PJCIS’s recommendation to include a regulation-making power was “designed to mitigate the risk that restricting parties to civil proceedings’ access to such data could adversely impact the effective operation of the civil justice system, or the rights or interests of parties to civil proceedings.”

The government says it is seeking feedback on when the kinds of data covered by the data retention scheme are sought in civil proceedings, the potential impact on being denied access to that data in civil cases, and the circumstances under which the prohibition should not apply.

Data covered by the data retention scheme include subscriber and billing information; details on the source, destination, date and time of a communication (such as a call or email); the type of communications service used; and the location of communications equipment.

Submissions can be made via the Attorney-General’s Department.

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