[LINK] That data retention bill - 'solely' loophole in the language
Jan Whitaker
jwhit at janwhitaker.com
Sat Feb 28 08:34:53 AEDT 2015
Metadata laws may close piracy loopholes
Adam Turner
Published: February 27, 2015 - 6:22PM
Even with a parliamentary committee's last-minute recommendations, Hollywood pirate hunters will still probably use your metadata against you in court.
Australia's two-year metadata retention scheme looks set to become law, with the Labor opposition expected to back it when debate resumes in parliament on Tuesday. It's believed that Labor's support will come with a few key amendments which add significant safeguards addressing some but not necessarily all of the concerns tabled on Friday by the Parliamentary Joint Committee on Intelligence and Security. There's still a lot for civil libertarians to be worried about, but it's now harder to abuse the nation's vast treasure trove of metadata.
Going on the parliamentary joint committee's recommendations, and reports of which amendments Labor will push for, we should finally get a solid definition of metadata. The list of the data to be retained should be enshrined in the legislation. This means we'll know exactly what our ISPs are keeping on us and have assurances that this list can't be quietly expanded by Attorney-General George Brandis to include extra details like your web browsing history. Considering our politicians struggle to explain exactly what metadata is, it will be interesting to see how they go writing it down.
A specific list of agencies which can access our metadata is also expected in the legislation, once again limiting scope creep by stopping the Attorney-General alone deciding who can ask to see our metadata records.
These amendments go some way to addressing people's concerns about the new metadata retention regime, but there is a major potential loophole when it comes the piracy prosecutions.
The parliamentary joint committee recommends that parties to civil court cases be prevented from obtaining your metadata;
Recommendation 23
The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to prohibit civil litigants from being able to access telecommunications data that is held by a service provider solely for the purpose of complying with the mandatory data retention regime.
To enable appropriate exceptions to this prohibition the Committee recommends that a regulation making power be included.
Further, the Committee recommends that the Minister for Communications and the Attorney-General review this measure and report to the Parliament on the findings of that review by the end of the implementation phase of the Bill.
It's unclear whether this recommendation will be amongst the list of amendments put forward by Labor. Without this change, the use of metadata in civil proceedings would likely be at the attorney-general of the day's discretion. The pleas of the powerful copyright lobby are unlikely to fall on deaf ears.
Even if it this recommendation is heeded in the amendments, the phrase "soley for the purpose" creates a signifiicant potential loophole for copyright holders. They can argue that the metadata they seek isn't solely kept as part of the mandatory retention scheme, it's also retained to support the piracy code. That makes two purposes, so the restriction doesn't apply and it's open season on piracy metadata.
Brandis is expected to respond to the parliamentary joint committee report, but time is running out if debate resumes in parliament on Tuesday. The fact that we're having the metadata and piracy debates simultaneously is no coincidence.
If the civil litigants recommendation is ignored then the copyright police will be relying on the discretion of an Attorney-General who time and again puts the interests of copyright lobby groups before the interests of consumers such as denying us US-style Fair Use copyright laws. Unless the legislation specifically forbids it, there's little chance that Brandis would knock back requests from copyright holders to call upon metadata when chasing pirates through the courts in civil proceedings. Even if the civil litigants recommendation gets through, the wording might hand the copyright police an instant exemption.
It's true that the proposed piracy code will also let copyright holders take advantage of your metadata, but in a much more limited way.
The piracy code doesn't grant copyright holders access to your metadata, even after three strikes. It just compels your ISP to comply with a court request to use metadata your IP address to find your name and then hand that name over. With the metadata proposal on the table, it seems the copyright holder could actually ask for access to your metadata in any civil piracy case, with Brandis' blessing. Unlike the piracy code, this wouldn't necessarily be limited to residental fixed-line connections eliminating a major loophole.
Copyright holders such as the backers of the Dallas Buyers Club case are already complaining that the piracy code is too narrow for their liking. That won't be a problem if they can rely on the Attorney-General to let them trawl through your metadata and use it against you in any civil trial.
This story was found at: http://www.theage.com.au/digital-life/computers/gadgets-on-the-go/metadata-laws-may-close-piracy-loopholes-20150227-13qobg.html
I write books. http://janwhitaker.com/?page_id=8
Melbourne, Victoria, Australia
jwhit at janwhitaker.com
Twitter: <https://twitter.com/JL_Whitaker>JL_Whitaker
Blog: www.janwhitaker.com
Sooner or later, I hate to break it to you, you're gonna die, so how do you fill in the space between here and there? It's yours. Seize your space.
~Margaret Atwood, writer
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