Notes from the iappANZ President, December 5, 2014

It is the first week of summer in Sydney, and, well, the weather has been very chaotic, ranging from 30-plus degrees C to rain, lightning, of course, high winds.

Last night, driving home beneath thunderbolts seemingly about to crash over the Sydney Harbour Bridge—it would’ve been a very dramatic camera shot!—I thought about the current debate on the introduction of a mandatory data retention scheme in Australia. It may have been triggered by the thundering storm ahead of me, but nonetheless, the forces of nature triggered a thought! Maybe not a lightning-strike kind of thought, but here it is anyway:

If passed, the Data Retention Bill would require telecommunications companies to keep metadata logs relating to email, Internet, mobile and landline use for up to two years, which would be available for law enforcement and intelligence agencies to access.

Personally, I have mixed feelings on the topic. On the one hand, I wonder if having such laws would in fact assist law enforcement with cyber criminals, fraudsters, child abuse networks and so on. On the other hand, looking through my critical legal lens, I am not convinced that we have adequate evidence to warrant the need for such a system, including issues around security, cost and oversight. It occurred to me that perhaps my mixed feelings were not mixed at all but reflected the delicate balance between law enforcement activities and the privacy of citizens and my own uneasiness about the strength of existing consumer privacy protections.

The Law Council of Australia has released a position statement objecting to the bill with Law Council of Australia President Michael Colbran QC, stating, “Any mandatory data retention scheme must be shown by the government to be reasonable, necessary and proportionate to a legitimate purpose.” Stay tuned for a Parliamentary report on the bill in February to see where the political winds take us on this matter.