Understanding data retention in Australia
A primer: what you need to know
Data retention is once again on the media and political agenda, with the government last week (via attorney-general Nicola Roxon) canvassing public input on the topic.
The laws which the government proposes amending include those covering interception, telecommunications, and intelligence agencies – all, of course, under that indispensible omnibus for all things spookish, “national security”.
Since the government is going to open up at least some of its proposed review to public submissions, El Reg offers this primer of data retention in Australia. The aim is not to try and school those who have followed the debate for years; rather, it’s to bring newcomers to the debate “up to speed”.
(Disclaimer: As someone who has had to read a great many submissions to government committees over the years, I have a concern that too often, the vox populi is ignored because submissions miss the point of the inquiry, don’t understand the issues, or disappear down rabbit-holes.)
Telecommunications and law enforcement today
If you want to understand the full range of powers that law enforcement and ASIO hold, you would of course read the Telecommunications (Interception and Access) Act, the Telecommunications Act, the Intelligence Services Act, and the Australian Security and Intelligence Organisation Act.
However, for the purposes of this discussion, this summary  provided by the Australian Communications and Media Authority will suffice.
ISPs are swept into the national security net by the Telecommunications Act, because that act defines them as carriage service providers. As is the rest of the industry, ISPs are obliged to help law enforcement act against breaches criminal, national security, or public revenue laws; to try and prevent facilities being used to commit offences; and ensure that they can intercept communications if required to.
Agencies may – with or without a warrant, depending on specific circumstances – request information that includes “identity, source, path, and destination” of communications (our italics). A request without a warrant can, of course, be denied; once an agency knocks on the door with a warrant in hand, that's no longer an option.
“Destination” is a troublesome notion on the Internet – is it an IP address (which may be associated with millions of Web pages) or the URL itself? El Reg isn't positive, and nor were the lawyers we asked, whether this is actually settled in case-law in Australia.
However, what is clear is that to satisfy law enforcement may involve handing over – today – the kind of information that people are worried may be covered by a data retention regime, including ISP logfiles and backups.
An important question, then, is this: is it better to have a formal process in place to regulate what are, at the moment, ad-hoc processes?
It’s quite feasible that a data retention regime could be created that has no effect on the type of information available to law enforcement agencies.
What it would certainly change, however, is the amount of information available. Today, collection doesn’t begin until some kind of request is made – either under a warrant, or because the request satisfies the disclosure rules in the Telecommunications Act. A data retention regime means the stuff is there, all the time.
Of course law enforcement likes the idea. There are some practical reasons – such as being able to back-trace genuine criminal activity – but law enforcement in Australia has a long and not always noble history of seeking vast amounts of information about any-and-everybody, guilty or innocent.
Journalists have complained this year about the huge amount of surveillance Australians are subject to: a quarter of a million of interception warrants in 2011, for example. With the knowledge, however, that data has already been collected, we could expect that number to skyrocket.
Another problem with data retention is simply that it would create huge honeypots for the dishonest. There remain more than two hundred ISPs in Australia, most of them with names you don’t know, and at least some of them must be vulnerable either to external attacks or internal subversion.
What does the government propose ISPs retain?
We don’t know, yet: we don’t even know what the Joint Committee on Intelligence and Security will be asked to consider, which is sub-optimal. If there are to be public hearings to consider proposals, the public needs to know what the proposals are.
The most anyone can offer right now is speculation based on the government’s occasional remarks last year that Australia would be brought into line with the European Directive on Data Retention.
There are, however, aspects of any data retention regime that the public can raise, even in advance of the proposals:
1 Does the regime propose offering new classes of information to law enforcement? For example, will it go beyond today’s “individual, source, path and destination” to include content?
2 Does the regime propose changing the circumstances under which law enforcement is able to access data held by ISPs?
3 Does the government propose to legislate protection of personal data not associated with an investigation? Will the laws prevent fishing expeditions?
4 What provisions will exist to protect the stored data from intrusion?
5 How would the government propose to resolve questions of liability, should retained data be breached?
Law enforcement is keen to trumpet its successes when it breaks a ring trading illegal material or allegedly pirating software or running file-sharing sites. It is, therefore, reasonable for us to ask: are these successes merely concealing an even bigger number of failures?
It’s insufficient for law enforcement to merely assert that it needs new powers and new data. We should know in which ways Australia is suffering through lack of the data: which terrorist attacks have happened that could have been averted if ISPs had the right stored data? Which phishing attacks averted?
It is especially necessary given that if wrongdoers have any sense at all, what will appear when the police trawl their ISP’s logs will be a clear pattern of communicating over a VPN service. ®