Film studios could use retained data to sue torrenters

Communications Minister Malcolm Turnbull has confirmed that copyright holders could sue ISPs to get hold of data retained as part of the government's mandatory data-retention regime.
Written by Josh Taylor, Contributor

Although the government is downplaying comments from Australian Federal Police Commissioner Andrew Colvin that retained data could be used to hunt down Australians downloading infringing films, TV shows, or music, Communications Minister Malcolm Turnbull has confirmed that the data could be accessed by film studios under a court order.

Image: Josh Taylor/ZDNet

Under the mandatory data-retention legislation introduced into parliament on Thursday, Australian telecommunications companies will be required to retain a set of customer data, including the IP addresses assigned to their customers for a period of two years.

To address privacy concerns, the government is also looking at introducing a number of safeguards and oversight measures, and will now limit warrantless access to the data to just law-enforcement agencies for the investigation of criminal activity. Under the current legislation, a wide range of government agencies, including local councils and the RSPCA, can access the stored data.

The explanatory memorandum of the legislation specifically states that the stored data can only be used for purposes outlined in the Telecommunications (Intercept and Access) Act.

"Importantly, access to all telecommunications data (whether or not captured by the terms of the data set) is strictly reserved for specific purposes under the TIA Act. Enforcement agencies may only issue authorisations enabling access to data where it is 'reasonably necessary' for a legitimate investigation, and must consider the privacy impact of accessing telecommunications data. 'Reasonably necessary' is not a low threshold. It will not be 'reasonably necessary' to access data if it is merely helpful or expedient."

However, at a press conference on Thursday after Turnbull introduced the legislation, Colvin stated that the Australian Federal Police could in fact use the retained metadata to investigate the civil matter of copyright infringement.

"I haven't even touched on some of the other range of crimes. Absolutely. Any interface, any connection somebody has over the internet, we need to identify the parties to that connection," he said.

"Illegal downloads, piracy, cybercrimes, cybersecurity. All of these matters, our ability to investigate them is absolutely pinned on our ability to retrieve and use metadata."

Speaking on ABC Melbourne that afternoon, Attorney-General George Brandis moved to hose down the commissioner's comments, stating that the AFP isn't interested in chasing down copyright infringers.

"I think that when Commissioner Colvin said that, I think what he said was misunderstood," Brandis said.

"The important point to make, of course, is that copyright infringement is a civil wrong; it is not a criminal offence. So all we are concerned about here is law enforcement, so for that very practical reason, there is no relation between the internet piracy issue and data retention."

At the Ovum Telecoms Summit in Sydney on Friday, Turnbull admitted, however, that the stored data would be accessible through the court process, and the mandatory data-retention legislation would not prevent that from happening.

"They can through civil proceedings. Sure, as they always have done. They can go to court, and they can seek discovery of the records that disclose the account to which a particular IP address was allocated at a particular time, but they do not have warrantless access to metadata in the way the police and ASIO and Customs have," he said.

Turnbull said that in line with his comments that rights holders must be prepared to sue Australian infringers as part of the government's action on online copyright infringement, there has been a reluctance from the film studios to take court action.

"They have been reluctant to sue people for a breach of copyright; they would rather the ISPs did something about it. But look, if you infringe somebody's intellectual property, the owner of that property has a potential cause of action against you, so I think that's always an issue," he said.

"We're looking at what sort of scheme we can put in place to better deal with copyright infringement. I think in large measure it is an education issue, people being aware. There's developed a sort of culture if you like that everything is free online, and that's devastating for artists, and writers, and directors."

iiNet will appear in the Federal Court next week fighting against Dallas Buyers Club LLC, an organisation that is seeking to obtain the customer details of IP addresses associated with peer-to-peer file sharing of the Oscar award-winning film Dallas Buyers Club. iiNet has said it is concerned that if the organisation obtains customer details from iiNet, its customers will be sent "speculative notices" demanding thousands of dollars in compensation, and threats to take those customers to court.

Although the government entered the mandatory data-retention legislation into parliament with just two weeks left in the year, Labor appears to have ensured that the legislation will not pass this year.

"We are not going to rush the passage of any data-retention measure. It is important legislation, it has to be passed in a timely fashion. It's not something to dilly-dally with, but nonetheless, we said we will wait for the report of the parliamentary joint committee on intelligence and security to make recommendations on the details and structure of the new regime," Turnbull said.

Turnbull said that the data set released on Thursday is in an "advanced draft form", but would be worked out with the industry.

"The government will establish a parallel working group that will have both members from the government, secretaries of Attorney-General's Department and Communications Department, and law-enforcement agencies along with industry representatives to help settle the technical aspects of the data set that is to be retained."

Shadow Communications Minister Jason Clare told the ABC on Thursday that both himself and Shadow Attorney-General Mark Dreyfus have been added to the committee investigating the legislation. It will not report back to parliament before next year, meaning the legislation will not pass in 2014.

"Our view is that it needs to be subject to serious scrutiny, and we've made that point to the government today. We've said this shouldn't be passed though the parliament in the next few weeks; it needs a couple of months of consideration by the parliamentary committee, and the government's agreed to that. That's a good outcome," he said.

Clare said that the committee will need to hear from law-enforcement agencies on why it is necessary to retain the data.

"The case has to be made out. Law enforcement needs to make the case and explain to the parliament what they need and why they need it, and potentially they might be able to tell us that they can get what they need in another way," he said.

"We also need to hear from the telecommunications industry about how this will affect them, and also over-the-top providers, people like Facebook or Google, and how this will affect them. It's important to remember that telcos come in all shapes and sizes: You've got the big one in Telstra, but there is also telcos that might only have 50 customers, and it would affect them differently.

"As I said, it's also going to affect the general public. If the cost of this is not entirely borne by the government, then the telcos, the ISPs will have to pay to store this data, and they will pass that on to their customers, which people are calling an internet tax."

Greens and other cross-bench parliamentarians have been left off the committee, however, including the most vocal opponent of the scheme, Senator Scott Ludlam.

On Thursday, Ludlam pleaded for the Labor opposition to ensure the party pays close attention to the proposal.

"I'm calling on the Labor party today to not do what they did on the ASIO Bill and simply vote for it, wave it through, and express regret on it ... we're asking them to read the damn Bill this time, and reject it, vote it out of hand, and don't come back with regret after the damage has been done."

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