NO WARRANTS NEEDED for metadata access, argues Oz A-G

Submission to metadata inquiry says telecoms data is not intrusive

Australia's attorney-general has suggested that no warrants should be needed to access the nation's planned trove of telecommunications metadata, because the data isn't an invasion of privacy to rank with entering a home.

In a submission (PDF) to the inquiry into Australia's Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. the attorney-general's department suggests that the process of obtaining a warrant would slow down investigations and that warrants therefore aren't warranted.

The submissions contradicts conclusions reached by the Parliamentary Joint Committee on Human Rights, which last year recommended warrants before acces to the data.

But the AG's submission says “The benefits of introducing a warrant regime would be outweighed by the impact on agencies’ ability to combat serious crime and protect public safety,” going on to offer the following rationale:

“Timely access to telecommunications data can provide agencies with vital leads before evidence can be lost or destroyed. However, warrant applications are resource intensive, and can take days, if not weeks, to prepare and complete. Delaying an agency’s ability to begin an investigation by this length of time would seriously harm their ability to investigate crimes or threats to national security.”

The submission also advances this argument:

“Warrants are also typically reserved for the most intrusive powers, such as the power to enter a home, intercept phone calls, or access stored communications. Many information-gathering powers that are exercised by agencies under Commonwealth, State and Territory laws do not rise to that level of intrusiveness and may be exercised without a warrant. Examples of such powers are powers to obtain banking, financial and healthcare records. The power to access data is only of the same level of intrusiveness as these powers. Non-warranted access to information is a normal part of any law enforcement framework.”

The submission goes on to say that independent oversight of metadata use should do the job, as if law enforcement agencies know their access to the trove “ is a strong deterrent against non-compliance or misconduct.” The current bill proposes the Commonwealth Ombudsman take on that role.

Elsewhere in the submission, the department rules out any alternative scheme other than the current metadata retention bill, arguing other schemes around the world have proven ineffective.

A defence of the 24-month retention proposal can also be found, on the grounds that about 10 per cent of metadata requests come more than a year after communications took place. Transnational investigations and probes into complex crimes, the submission says, move at a speed that makes retention for two years essential.

There's also an argument that the proposed metadata data set must not be reduced, as with less metadata investigations become harder.

Small telcos may welcome the point that the bill contains “ … no restriction on providers of wholesale telecommunications services providing a data retention service on behalf of their wholesale customers, which would likely increase efficiencies and reduce the cost impacts across the sector.”

The AG's department is the source of the bill and attorney-general George Brandis has never wavered in his support for metadata retention, so the submission's strong support for the bill as it stands will come as no surprise.

Other submissions we've glanced at offer different views – we'll get to them as fast as possible! ®

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