Labor won't decide on data retention, copyright infringement until after election

The office of Australian Attorney-General Mark Dreyfus has ruled out making an election commitment for or against mandatory data retention and a three-strikes copyright infringement notice scheme.

A parliamentary inquiry into Australia's telecommunications interception laws this year included a look at a proposal to require Australia's telecommunications providers to retain metadata for up to two years.

Law enforcement agencies have pushed for the scheme, as they have said that much of the so-called metadata — such as information about when a call is made, the phone number, the location, and the duration — is no longer being kept by telcos for billing purposes. The public, however, is broadly against the proposed scheme, with telcos, privacy groups, and libertarian groups all raising concerns about what sort of data would be collected.

Under the existing system, over 40 government agencies made 293,501 requests for metadata from internet service providers (ISPs) in 2011-12, all without the requirement of a warrant.

The committee reported back to the government in June that the decision on whether to implement a system to require ISPs to keep this data should be one made by the government, and, if it was to go ahead, whether the draft of the legislation should be made public.

In response, Dreyfus said at the time that the government would not pursue a mandatory data retention regime "at this time", and would wait for further advice from government departments and then go to further consultation.

Now in the midst of an election campaign, ZDNet asked Dreyfus' office whether Labor plans to bring in the data retention regime in the next term of parliament. A spokesperson for Dreyfus said that the government is still considering the report.

"This was the first step in the government's plan to engage more broadly with the community on national security issues. The inquiry process meant that all options were on the table for the public to see, and allowed politicians from both sides of the parliament time to scrutinise them in detail," the spokesperson said.

"Given the extensive nature of the report's recommendations and the importance of developing legislation that contains necessary, effective, and proportionate powers that are consistent with our international human rights obligations, it would not be appropriate to rush our response."

The spokesperson said that access to telecommunications data "is, and will remain, an essential tool for national security and law enforcement agencies".

The other major work undertaken by the attorney-general prior to the election was around Australia's copyright system. Since September 2011, the attorney-general's department has been holding secret meetings between the telecommunications industry and content owners over the best way to stop Australian internet users from downloading copyright-infringing material.

The government has been hoping to develop an industry-led scheme that would include an "education" notice scheme, where users are warned when their ISP is informed by the content owners that the user has infringed on copyright.

One of the participants, iiNet, ultimately pulled out of the meetings after defeating the film studios' lobby group the Australian Federation Against Copyright Theft (AFACT) — now known as the Australian Screen Association — in the High Court of Australia.

In July, the department confirmed to ZDNet that the discussions between the groups had stalled since iiNet pulled out, and no more meetings have been held in 2013.

The spokesperson for the attorney-general would not confirm whether a re-elected Labor government would plan on bringing in an infringement notice scheme, but indicated that a decision on the scheme may come as a result of the government's response to the Australian Law Reform Commission (ALRC) report on Australia's copyright system due at the end of November.

"The government has asked the Australian Law Reform Commission to consider whether exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment, and whether further exceptions should be recommended," the spokesperson said.

However, this contradicts the terms of reference for the inquiry, which specifically state that online copyright infringement is not to be considered in the review.

"[The commission should] not duplicate work being undertaken on: Unauthorised distribution of copyright materials using peer-to-peer networks; the scope of the safe harbour scheme for ISPs; a review of exceptions in relation to technological protection measures; and increased access to copyright works for persons with a print disability."

The ALRC has so far proposed that a fair use exception in Australia's Copyright Act would allow it to be more technology neutral, but the commission has not yet made any final recommendations.

ZDNet has asked Shadow Attorney-General George Brandis about the same policies should the Coalition win the September 7 federal election. No response has been received.

In an interview with The Australian this week, however, Brandis indicated that he is keen to see a more hard-line approach taken against users who infringe on copyright.

"In that debate, I am on the side of the artists, I am on the side of the copyright owners and content providers," he told the newspaper. "The law needs to be altered so that from a technical and law-enforcement point of view, it keeps pace with technology."

The Greens are in favour of a broader fair use exception in the Copyright Act, are opposed to mandatory data retention, and have proposed requiring law enforcement authorities to obtain a warrant prior to accessing telecommunications customer metadata.

Pirate Party Australia is also running in the federal election on a platform of shifting the balance of the Copyright Act away from penalising people for accessing and sharing content. The party is also strongly opposed to any mandatory data retention proposals.