Piracy cat is out of the data-retention bag: Ludlam

Mandatory data retention is not just about national security, but also about cracking down on illicit online file sharing, according to Greens communications spokesperson Scott Ludlam.
Written by Josh Taylor, Contributor

Australian Federal Police Commissioner Andrew Colvin revealed one of the alternative intentions of forcing telecommunications companies to retain customer data for two years in stating that the data could "absolutely" be used for investigating online copyright infringement, Greens communications spokesperson Scott Ludlam has said.

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.

The government has said that the limited range of law-enforcement agencies that will be able to access it under the scheme will only be able to use it for the investigation of crime. However, at a press conference on Thursday after Communications Minister Malcolm 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.

Turnbull backed away from Colvin's comments on Friday, saying that the AFP would not be interested in tracking down users illicitly downloading TV shows, films, or music, but he did confirm that rights holders could obtain the data through the courts.

At a press conference in Sydney on Friday, Ludlam said that Colvin's comments inadvertently revealed the true intention of the data-retention legislation.

"I'm strongly concerned about a measure that is being brought in under the cover of national security being used to prosecute people for file sharing in one of the most restrictive and choked content markets in the world," he said.

"I think yesterday, the cat finally got let out of the bag. One of the data sets that is sought to be retained is data volumes; who is downloading what material. I think there's no doubt at all that the big US content providers have been leaning on this rather weak and compliant government.

"If the government wants to crack down on file sharing, it should open up lawful, cheap, convenient distribution channels to the Australian public. We have content choke points, basically a content monopoly held by Foxtel, that really needs to open up so Australians can access this content."

Ludlam said that opposition to the policy is growing, and the government should consider abandoning some, but not all, of the legislation.

"Now we finally have a bit of detail, I think the government has picked a fight it is going to lose," he said.

"There are some reforms we think should be kept, regardless of whether the government decides to proceed with data retention. Narrowing the range of agencies that can participate in this open-season warrantless metadata harvesting is a welcome move."

But Ludlam said that the clause allowing the attorney-general of the day to add agencies onto the list of those that can access the data without a warrant is a "huge loophole".

"We know if this passes into law, there will be a queue of agencies lining up outside the door asking to access people's metadata without a warrant," he said.

Ludlam also said that in seeking to define the actual data set in legislation, and instead opting for it to be defined in regulation, would allow for scope creep for future governments to add in more data to be collected and retained.

The government has agreed not to rush the legislation, and the Joint Standing Committee on Intelligence and Security will not report back on the Bill until early next year. Shadow Communications Minister Jason Clare and Shadow Attorney-General Mark Dreyfus have been added to the committee, but Ludlam said that none of the minor parties would be able to be part of the committee to "create a little bit of diversity of opinion".

"That committee is a boys' club. After the September election, the Abbott government eliminated the only cross-bench member of that committee, which was Andrew Wilkie, who is formerly of the intelligence community and is worth listening to on this stuff," he said.

"Since then, you've seen deals done behind closed doors, and a lot of evidence taken in-camera and off the public record."

Ludlam said that it is now up to the Labor party to properly scrutinise the legislation.

"We are putting the Labor Party on notice: Stand up straight, read the damn Bill this time, and start behaving like an opposition party."

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