Labor to cave on mandatory data retention

MPs of the Australian Labor Party are expected to vote for mandatory data-retention legislation when it is debated in parliament in March.

Labor is expected to vote for legislation that will force Australian telecommunications companies to retain call and internet records for all their customers for a minimum of two years.

The Joint Parliamentary Committee on Intelligence and Security will hand down a report on the legislation, introduced by the government late last year, by 2pm AEDT on Friday at the latest.

The proposed legislation would require telecommunications companies to keep a set of customer data for up to two years. This would include call records, assigned IP addresses, email addresses, SMS history, and other communications records that can be accessed by law enforcement.

Although Labor leader Bill Shorten expressed reservations with the legislation, the bipartisan report is expected to back the legislation, but will make a number of recommended amendments.

ZDNet has independently confirmed that reports in Fairfax Media over the contents of the report and the proposed amendments are accurate.

If the amendments were to be accepted into the proposed legislation, it would mean that while the retention period would stay at two years, no longer would the attorney-general of the day get to set the data to be stored through regulation. Any additional data that would need to be stored would first need parliamentary approval.

The attorney-general would also no longer be able to approve the addition of new agencies through regulation, and would again need parliamentary approval, but the list of agencies in the legislation would likely be expanded to include the Australian Securities and Investment Commission (ASIC), which has been quite vocal in its angst about being left off the list of approved agencies.

ASIC uses telecommunications records to investigate corporate crime.

Telecommunications companies would also be required to encrypt the data, and report any compromise of the data either through a leak or hack.

Access to the data would be limited to criminal investigations only, meaning that access to the data would not be available for civil cases. However, it is understood that the attorney-general could allow certain cases to access the data.

Communications Minister Malcolm Turnbull previously admitted that the data could be accessed in preliminary discovery cases for copyright infringement, such as the Dallas Buyers Club case against iiNet and others.

It is unclear whether the government will adopt these recommended amendments into the legislation, or seek to first pass the legislation and then amend it.

Labor had been previously pushing to require law-enforcement agencies to seek external approval, such as a warrant, before being able to access the data, but the party appears to have not been successful in negotiating for it to be included through the committee.

Prime Minister Tony Abbott has indicated that he wants the legislation passed in March, and the Telecommunications (Interception and Access) Amendment (Data Retention) is the first piece of legislation due to be debated on Tuesday next week in the House of Representatives (PDF).

The legislation will quickly pass the House of Representatives with government votes alone, but will need the support of Labor for it to pass the Senate, where the Greens and some Independent Senators such as David Leyonhjelm are expected to vote against it.

More to come.

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