Data retention always comes back

Data retention has been slayed in Australia for the time being, but like any good pop culture villain, it will always come back.

In "Buffy vs. Dracula", the episode of the iconic cult TV series Buffy the Vampire Slayer with the title that leaves no mystery as to what the episode is about, the heroine manages to escape Dracula's lure and puts a stake through his chest, causing him to explode into a pile of dust.

As she leaves his mansion, the dust slowly regathers and Dracula returns, only to find that once again, he has a stake in his chest, with an impatient Buffy standing over him.

"You think I don't watch your movies? You always come back," she tells him.

This week saw an Australian parliamentary committee put a stake in the heart of proposals that would have forced telecommunications companies to retain customer data for up to two years. The stake was driven in by Attorney-General Mark Dreyfus, who said that the government would not progress plans for the scheme "at this time".

The scheme has been shelved for the time being, but there's no doubt that some form of the proposal will return, albeit not before the September federal election. Government agencies will still seek to access the customer metadata as they did almost 300,000 times in the last financial year, and if providers begin to stop keeping that sort of information as the agencies have claimed, they'll no doubt lobby whichever government is in power after September to mandate a required data preservation period.

The committee certainly left the door open for the proposal to return, stating in the report that if a future government moves ahead with the plans, there should be an exposure draft of the legislation published beforehand, and it should be referred to a parliamentary committee. The report also outlined exactly the way that data retention should be handled if it is brought back, including having internet service providers (ISPs) ensure that the data is encrypted, storage is paid for by the government, and only non-content data is retained.

The reason why the government abandoned it this time is simple: The pushback against it was too strong, with the Greens stating that 98.9 percent of submissions to the inquiry were opposed to data retention. But in what context would the government think that it could get away with bringing in a data retention scheme?

Two words: Terrorist attack.

Government agencies are quick to latch onto the latest disaster as proof that they need whatever they're seeking. References to the most recent high-profile terrorist attack to occur in a Western country — the Boston bombing — are already starting to appear in parliamentary inquiries. The Boston bombing was referenced in the joint committee's own report introduction.

"Recent events such as the Boston bombings and the murder of a British Soldier on the streets of London remind us of the impact of terrorist attacks and the continued need for the government and its security and intelligence agencies to maintain vigilance, preparedness for, and defence against terrorist attacks."

It was also mentioned in the first hearing of the inquiry looking into the spectrum set aside for dedicated mobile networks. Robert Waite, from the Police Federation of Australia, was first to reference Boston in pushing for emergency services to be given more spectrum for their own networks.

"In almost every case, the public system has collapsed. In many cases, it is through congestion. As recently as the Boston bombings during the marathon, there were initially reports that law enforcement had turned off the system. That was not the case; the local data messaging system actually collapsed through congestion caused by members of the public trying to send messages to and from," he said.

It then got brought up by NSW Police Force assistant commissioner Peter Barrie.

"Even though carriers may enhance the capacity of their networks for preplanned events such as the Melbourne Cup, it still aligns to experiences that we have had around the world — for example, in Boston, where there were such large crowds and everybody had access to smartphones," he said.

"When an incident occurs, they all want to capture information, get in contact with loved ones, and confirm the welfare of their friends. That puts huge strain on those networks, sometimes to the point of collapse. So we do not feel, from a law enforcement perspective, that we can maintain mission-critical services that are reliant on those particular scenarios not occurring."

In the unfortunate event of another large-scale terrorist attack in a Western country or closer to home, it is not inconceivable that it would be used as a platform to attempt to push a data retention regime through parliament.

At least for now, data retention will be set aside until after the election. Should Labor stay in power, an exposure draft of the legislation could appear sometime next year. If the Coalition is elected, it is difficult to determine what the outcome would be. Some in the party, such as Shadow Communications Minister Malcolm Turnbull, are more on the traditional liberal side of the party, and would likely oppose any such move. However, during the inquiry process , it became clear that other Liberal members, such as former Attorney-General Phillip Ruddock, who was a staunch defender of anti-terrorism legislation in the Howard era, were in favour of a data retention scheme.

"I ask myself, 'Does the public want us to have those matters pursued in order to protect them?' I come to that conclusion that yes, they do. Then I come to a view about privacy: does the public broadly want their privacy to be protected? I suspect that they do. I look at what complaints I get. I get complaints about people's banking information being sent off to overseas organisations where they think it has been misused. But I do not get a lot of complaints about people who have been concerned about how their privacy may have been abused when it has gone into the hands of security or law enforcement agencies. But I may be alone."

The man who would be the attorney-general in a Tony Abbott government, George Brandis, was more reserved in his comments during the inquiry, largely focusing on ensuring that content was not included.

"What this committee wants is a clear statement, which you can call a definition if you want, that reassures us that insofar as internet metadata is sought to be retained, there is no way, either directly or incidentally, that the retention of that internet metadata will enable content to be retained," he told Attorney-General's Department representatives.

"The public would accept a level of mandatory data retention in relation to telecommunications. They would accept the logic of the regime being technology neutral and therefore reaching the internet. But my political judgment is that there is no way in a million years that the public would not react very strongly against a proposal unless they were absolutely guaranteed that their internet browsing history or use would not be the subject of the mandatory detention regime."

Even if the party wishes to proceed with data retention, and has secured the numbers in the House of Representatives and the Senate to pass new laws after September, the new Senate will not sit until July 2014, meaning that the Coalition would not potentially gain control of both houses until at least that date.

While data retention might have been slayed this year, it will no doubt be back in one form or another in the near future.