Why the rush? The complex reality of telecommunications data retention

The Abbott government has a bill before the Parliament to require phone and internet companies to retain everyone’s telecommunications data for two years. The Prime Minister Mr Abbott has made public statements linking data retention to national security, and insisting that the bill must be passed. His actions are regrettable because they unnecessarily make this complicated issue seem both simpler than it is, and more partisan.

The questions of whether, and if so how, to keep and use people’s telecommunications data, are vexed. There are complicated and competing interests that must be weighed. Doing so properly takes time.

The Parliamentary Joint Standing Committee on Intelligence and Security has received hundreds of submissions, has heard evidence, and is due to report on Friday 27 February. The Prime Minister, Tony Abbott, has said he wants the bill debated the following week.

Mr Abbott should make clearer his reasons for that urgency.

Police and other agencies have had access to telecommunications data for years, and they continue to do so. The way that phone and internet companies store data may be changing, and the way that consumers use telecommunications may also be changing, but neither is changing quickly enough to warrant counter-productive and unseemly haste in changing the law so significantly.

The now Attorney-General, Senator Brandis, was on the 2013 committee that reported on a 2012 proposal to make data retention mandatory, but it took more than a year after the Coalition government was elected for the data retention bill to be tabled.

Any change will have to be phased in to allow for initial investment and establishment work to be done.

There is no practical obstacle stopping police forces and other agencies from continuing to get data. In the 2013 financial year agencies exercised their powers to get the data, without any need for a warrant, around 330,000 times.

All of those circumstances suggest that there’s time to get this significant policy decision right. In the absence of pressing urgency, why not take care to deal with the complexities?

And there are complexities. Human rights and privacy concerns arise. The possibility that a perception of mass surveillance will chill both political activism and journalism is a real concern. There are issues about the scope of the data to be kept, and what the rise of the Internet of Things will mean for data retention. There’s a question about whether decisions should be made by the Parliament or by the executive government, and a concern about unintended consequences (like making litigation more expensive). And there are many other concerns, like the creation of large stores of data and the temptations that might result.

And there are, at least potentially, great societal benefits in standardising and storing the information. Protecting the revenue, and cracking down on white collar crime and other unlawful behaviour, are important reasons to keep this data. The Australian Tax Office and Offices of State Revenue use the warrantless access scheme, and so do ASIC and the ACCC. And our whole community benefits when national security and law enforcement agencies can use telecommunications data to fight violent crime and to bring offenders to justice. These benefits weigh in favour of standardisation and mandatory retention, though there are arguments about the extent of their usefulness compared with other, more intrusive tools like interception and storage notices.

For my part, as chair of Labor’s cost of living committee, I want to know the likely consequences for consumers. When telecommunications companies have to change their systems to standardise the data they keep, store it for two years (as the bill presently requires), store it securely, and continue to comply with requests for access, what will the costs be?

Malcolm Turnbull has committed taxpayers to helping to defray the costs. It’s been reported that consultancy firm Pricewaterhouse Coopers has estimated the establishment costs to be between $100 million and $300 million. And I am not aware of any detailed estimates of the ongoing costs – of storage, of encryption, of cybersecurity, and of compliance. I suspect that detailed estimates of ongoing costs will be difficult given there is uncertainty about the scope of data to be retained in the future and also about the volume of data that will flow through telecommunications companies.

All of the establishment and ongoing costs will have to be met by someone. To what extent will the establishment costs, and also the as-yet uncalculated ongoing costs, be borne by taxpayers? The answer is not yet clear. To what extent will the costs be passed onto consumers? Again, we don’t know. How will smaller telecommunications companies fare? Will there be an adverse effect on competition in the sector, and if so what will that mean for consumers? These are real questions that will affect cost of living for households across Australia – because telecommunications is a necessity.


About Terri Butler

Terri Butler

Terri Butler is the Shadow Minister for the Environment and Water, and the federal Labor Member for Griffith, Queensland.

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