Law Council of Australia Warns Data Retention Regime Could Affect Pirates

Retention of telecommunications metadata is increasingly viewed by governments as a valuable tool to fight serious crimes, including terrorism.

Communications systems, such as telephone networks and the Internet, can provide the ability to collect information revealing who contacted who and when.

However, when such sensitive data is collected on a broad scale, who can get access to that data becomes a serious concern. In Australia, a review of the Telecommunications (Interception and Access) Act 1979 (TIA Act) has generated warnings that data supposedly being collected to fight serious crime is falling into broader hands.

The Communications Alliance, for example, highlights (pdf) that while there’s a perception that data will only be available to a limited number of law enforcement and security agencies, large numbers of other organizations have sought access to the data. They include a sports anti-doping authority, at least two illegal dumping groups, plus veterinary and fisheries authorities.

The availability of this data seems to be a magnet for many groups seeking to solve their own problems and according to the Law Council of Australia, that has the potential to include copyright holders in the future. While noting that some of its concerns that data will not be used by civil litigants have been addressed, there remains a concern that data collected now could be used for other purposes later on.

“[T]here is still the potential for ‘function creep’ under the regime due to the lack of prescription as to what purpose telecommunications data retained under the regime may be used for, potentially allowing for information collected for one reason to be later used for other purposes,” the Council’s submission reads (pdf).

Specifically, The Law Council says that earlier amendments to sections 280 and 281 of the Telecommunications Act 1997 may still have limitations that would allow file-sharers (typically BitTorrent users) to be scooped up, if there is a change of heart over the seriousness of their offenses.

“[T]here remains the potential for telecommunications data retained under the scheme to be used in matters of online piracy as telecommunications data may provide an irrefutable download history,” the Council warns.

“Former Attorney-General Brandis and the former AFP Commissioner have stated that the regime will not be used to tackle digital piracy, but should digital piracy offenses of individual consumers become criminalized in the future (currently piracy is only a criminal offense when at a commercial scale) it is possible that this position would be reassessed by the Government of the day.”

While a change in the law could potentially increase access to metadata in respect of pirates, copyright trolls are already on record trying to convince courts that their behavior is much more serious than it first appears. In 2017 in the United States, LHF Productions characterized five file-sharers as being part of a worldwide criminal conspiracy.

“While the actions of each individual participant may seem innocuous, their collective action amounts to one of the largest criminal enterprises ever seen on earth,” the lawsuit claimed.

“The Defendants are participants in a global piracy ring composed of one hundred fifty million members – a ring that threatens to tear down fundamental structures of intellectual property.”

Whether such a claim would ever gain credibility in Australia remains to be seen but it’s clear that tracking every action carried out by Internet users – file-sharers included – and recording them in a database for potential action is an extremely attractive proposition for copyright trolls.

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