Telstra wants civil litigants to pay up front for access to metadata

Submission on extending metadata access proposes making lawyers aware of costs before they subpoena

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Telstra has put a new wrinkle on Australia's simmering data retention debate by suggesting that it charges for access to retained telecommunications sought by civil litigants.

The suggestion is found in Telstra's submission to the government inquiry into whether retained telecommunications data should be made available in civil cases, instead of just for serious criminal investigations that were the original justification for retention. Submissions to the inquiry appeared here last week.

Telstra's complaint adds another twist, by complaining about the legislation's stipulation that carriers must not disclose “telecommunications data that they retain solely for the purpose of complying” with the data retention regime. If someone send a subpoena, it says, it has to work out which aspects of the data are retained “solely” for the regime, and this costs it money.

The carrier would rather not have its lawyers involved at all: Telstra suggests all requests for stored telecommunications data be handled by the court in which a case is brought, and that the court decide whether or not a data request is appropriate, privacy-invasive, or so on.

And about the costs? Telstra wants what's known as “conduct money” (the company supplying the data calculates its costs, issues an invoice, and tries to get it paid – which fails in 40 per cent of cases, Telstra says) with a system of fixed fees for data access.

“If retained data is made accessible in civil proceedings … we must be able to recover our costs,” the submission states.

“This could be done in a similar manner to the fees levied on agencies for the provision of information currently retained … The advantage of system of fees is that it would be clear to parties in civil litigation the costs likely to be incurred for such data requests.”

A set, up-front fee schedule to replace “conduct money” invoices might, admittedly, reduce the number of requests made in civil litigation.

AMTA, Comms Alliance concerns

A joint submission by the Communications Alliance and the Australian Mobile Telecommunications Association (AMTA) notes that once data has been given to a court under subpoena, it “may be very difficult to control” its subsequent use.

The industry bods also notes the arbitrariness of the current regime's cutoff: the metadata laws only impose the “blackout” on stored data after 13 April 2017. A carrier's routine data collection prior to that date – billing information, location, IP addresses and so on – remains available for civil suits.

Telstra, the industry groups, and presumably other submissions also want the data retention laws to spell out the limits of their liability for what happens to data after it lands in a civil court – a kind of “safe harbour” to protect them from other people or organisations abusing released data.

Other submissions grudgingly call for very, very strict oversight of any extension to metadata access, as it's felt civil litigation is scope creep and duplicates other instruments that permit litigants to access communication records. ®


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