Speech: Telecommunications Interception and Access Amendment (Data Retention) Bill 2014

October 30, 2014
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Speeches

Mr TURNBULL (Wentworth—Minister for Communications) (09:32):  I move:

That this bill be now read a second time.

The bill contains a package of reforms to prevent the further degradation of the investigative capabilities of Australia's law enforcement and national security agencies. The bill will require companies providing telecommunications services in Australia, carriers and internet service providers to keep a limited, prescribed set of telecommunications data for two years. The bill amends the Telecommunications Interception and Access Act 1979 (interception act), and the Telecommunications Act 1997 (telecommunications act).

 

Modern communication technologies have revolutionised the abilities of people to communicate, collaborate and express themselves. Sadly, however, these same technologies are routinely misused and exploited by criminals, including those who threaten our national security.

Historically, telephone companies have kept call records showing the numbers of both the A and B parties, time of call, duration of call and often the location of the parties. These records have been kept for long periods and were used for billing purposes. Under existing and long-standing legislation, a range of law enforcement and other agencies have had the ability to access this information without a warrant. These records are regularly subpoenaed in civil proceedings, as well.

When a device is connected to the internet it is assigned an IP address. This is, like a telephone number, a unique address. While many hosts have static or permanent IP addresses, in the vast majority of cases IP addresses are allocated dynamically by the internet service provider or telco providing the communication or the connection to the internet. Telecommunication companies have the ability to retain the details of the customer IP address allocated and many do so, but for differing periods. The capture and retention of these addresses is more straightforward in the fixed line broadband environment than in wireless networks. The widespread use of network address translation to more efficiently use the limited number of IP version 4 addresses also adds a level of complexity.

The type of data referred to in the bill as telecommunications data, more often described as metadata, is information about a communication but not its content. So, in the telephone world, it reveals that one number belonging to a particular account was connected to another number at a time and for a duration, but does not reveal what they discussed. In the IP world it reveals that a particular IP address, which may have been observed to have been engaged in some unlawful activity, had been at the relevant time allocated to a particular account. In the context of messaging—email, for example—it reveals the sender , recipient, time and date, but again not the content. Access to content, I stress, requires a warrant.

Access to metadata plays a central role in almost every counter-terrorism, counterespionage, cybersecurity and organised crime investigation. It is also used in almost all serious criminal investigations, including investigations into murder, serious sexual assaults, drug trafficking and kidnapping. The use of this kind of meta data, therefore, is not new. However, as the business models of service providers are changing with technology, they are keeping fewer records. And they are keeping those records for shorter periods of time because they do not need them any longer, in many cases, for billing. Many of the records that are still kept are kept because of legacy systems put in place years ago. In June 2013, the Parliamentary Joint Committee on Intelligence and Security concluded that this diminution in the retention of meta data is harming law enforcement and national security capabilities, and that these changes are accelerating.

Existing powers and laws are not adequate to respond to this challenge. Preservation notices under the interception act can require carriers to 'quick freeze' records that they hold, but these notices cannot create records that have never been kept, and cannot bring back records that carriers have deleted days, weeks or months before a crime is brought to an agency's attention.

Simply put, investigations are failing.

For example, in a current major child exploitation investigation, the AFP has been unable to identify 156 out of 463 potential suspects, because certain internet service providers do not retain the necessary IP address allocation records to enable the resolution of the IP address—that 32-bit number—to the particular account number the person in question was using. These records are critical to link criminal activity online back to a real world human being.

These impacts are not limited to law enforcement agencies in Australia. I give an example provided to us by the Federal Police. During a recent Europol child exploitation investigation, child exploitation investigations relied heavily on access to telecommunications data as perpetrators primarily shared information online, meaning that physical evidence was rarely available. Three hundred and seventy-one suspects were believed to be in the United Kingdom. Using retained telecommunications data, UK authorities were able to positively identify 240 suspects, leading to 121 arrests and convictions. In contrast, of the 377 suspects believed to be in Germany, which does not have a data retention regime in force, German authorities were only able to identify seven and were unable to obtain sufficient evidence to arrest or convict a single person.

Last year, a major Australian ISP reduced the period for which it keeps IP address allocation records from many years to three months. In the 12 months prior to that decision, the Australian Security Intelligence Organisation (ASIO) obtained these records in relation to at least 10 national security investigations, including counter-terrorism and cybersecurity investigations. If those investigations took place today, vital intelligence and evidence simply may not exist.

No responsible government can sit by while those who protect our community lose access to the tools they need to do the job. In the current threat environment in particular, we cannot let this problem get worse.

Data retention

As such, this bill will allow regulations to prescribe a consistent, minimum set of records that service providers who provide services in Australia must keep for two years.

A two-year retention period is based on the advice of our law enforcement and security agencies, as well as the experience of a number of foreign jurisdictions. While many cases are solved within a few months, investigations into serious and complex crimes and threats to security often span many years, requiring access to older records.

The government recognises that data retention raises genuine concerns about privacy. We are committed to addressing those concerns.

As a starting point, the government will release the draft dataset and refer it, along with this bill, to the PJCIS for review and public inquiry. The draft dataset is, of course, not final, but it is already strictly limited. For example:

  • service providers will not be required to retain the content or substance of any communication, including subject lines of emails or posts on social media sites
  • the act will expressly exclude a person's web-browsing history, and
  • providers will not be required to keep detailed location records that could allow a person's movements to be tracked, akin to a surveillance device.

The government will also carefully consider any recommendations made by the PJCIS about the dataset, or the broader regime provided for in the bill.

There has also been a great deal of conjecture about how much data retention may cost. As I have previously stated, the government is committed to ongoing, good faith consultation with industry and expects to make a substantial contribution to both the cost of implementation and the operation of this scheme.

This consultation will continue over the coming weeks, in parallel with the PJCIS inquiry, through a joint government-industry working group, headed by the Secretary of the Attorney-General's Department and deputy chaired by the Director-General of ASIO, Major General Duncan Lewis, Australian Federal Police Commissioner Mr Andrew Colvin and the Secretary of the Department of Communications. These consultations will focus particularly on settling technical aspects of the dataset and the costs of meeting the obligation.

What I can say is that, to date, our consultation with industry has been very productive. For example, based on industry advice, the bill allows individual service providers to develop an implementation plan that provides a pathway to compliance over up to 18 months. These plans will allow industry and government to prioritise the retention of data that is most critical to investigations, while allowing service providers to significantly reduce their costs by aligning any systems changes with their internal business cycles.

Access arrangements

This bill does not provide agencies with new powers to access communications data; the bill simply ensures that data will continue to be available to agencies as a part of legitimate investigations, subject to the same, strict limits that currently apply.

In fact, the bill will strictly limit, and indeed reduce, the range of enforcement agencies permitted to access telecommunications metadata without a warrant.

The bill will allow what we might call 'traditional' law enforcement agencies, such as the police, Customs, crime commissions and anticorruption bodies, to access this information.

The bill will also grant the Attorney-General the power to declare, via legislative instrument subject to parliamentary oversight, additional agencies. Before making such a declaration, the Attorney-General will be required to consider a range of strict criteria, including whether the agency is subject to a binding privacy scheme.

Safeguards

The bill will also introduce a range of new and enhanced safeguards. In particular, the bill:

  • introduces, for the first time, independent and comprehensive oversight of access to telecommunications data by enforcement agencies
  • requires the PJCIS to review the effectiveness of the scheme no more than three years after the end of its implementation phase, and
  • requires the Attorney-General to report annually on the operation of the scheme.

The government is also considering reforms to strengthen the security and integrity of Australia's telecommunication infrastructure by establishing a security framework for the telecommunications sector. This will provide better protection for information held by industry in accordance with the data retention scheme. The government expects this reform will be finalised well before the end of the data retention implementation period.

Concluding remarks

This bill is critical to prevent the capabilities of Australia's law enforcement and national security agencies being further degraded. It does not expand the range of telecommunications metadata which is currently being accessed by law enforcement agencies. It simply ensures that metadata is retained for a period of two years. In the IP world, the object of the scheme is principally to ensure that dynamically allocated customer IP addresses are retained for two years so they can be resolved to an account holder. The bill expressly precludes any obligation to retain information relating to web-browsing activities. In other words, customer IP addresses will be retained for two years but not the details of the IP addresses of the sites to which that customer may connect in the course of their internet activity.

More broadly, this bill demonstrates the government's commitment to ensuring that access to sensitive and personal information by these agencies is strictly controlled through robust accountability processes. I commend the bill to the House.

Debate adjourned.

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