[LINK] Senate committee probes AGD's data retention activities

[rene]

On Mon, 01 Nov 2010 18:26:02 +1000, Rick Welykochy wrote:
> rene wrote:
>
>> Also, re what is "telecommunications data" my recollection is that
>> in about 2007, AG dept told a Sen Comm (IIRC in response to
[...]
>
> So "telecommunications data" is perhaps what we in IT would call
> metadata. Hairs are being split, aren't they. Certain parts of a
> header are data and certain parts are content. I challenge a
> legislator to make the
> correct distinctions between the two in the headers for all existing
> and future communications protocols. Or leave to the courts and legal
> precedence to sort out. *Quelle* legal minefield.

Yes, it's more or less "metadata", and hairs are being slit, and, yes a 
legal minefield (and same re your comments about URLs - all of that is the 
sort of thing that was raised in 2007).

The situation in 2007 was patently obviously that the govt / AG dept were 
incapable of clearly defining, in legislation, what is or is not "data", so 
they stuck in a vague definition, and left it to the courts to work 
out/clarify. However, the courts would never be required to clarify it 
unless a defendant alleged unlawful access/disclosure in their own defence, 
and the court had to determine whether it was or wasn't unlawful.  
Generally speaking police, or more particularly DPPs, are probably not 
overly likely to proceed with a prosecution where there's a question of 
lawfulness of access to 'evidence' relied on.

Imo, the govt has a whole different, and much bigger, problem if they're 
going to mandate "data retention" by ISPs, etc, because they will have to 
clearly define precisely what it is that ISPs must keep. One can only hope 
IIA and ISPs in general realise, and point out strongly to the govt, that 
the govt must very clearly define what they must retain, otherwise ISPs 
will presumably be subject to prosecution for having failed to do retain 
something that it is later alleged they were supposed to have known that 
they should retain.

(And none of the above should be perceived to imply that I think ISPs 
should have to retain data in the first place).

Irene