Australia’s communications minister names messaging services people could use to avoid detection by the data retention laws he is pushing in parliament

Australia’s communications minister, Malcolm Turnbull, has named at least seven messaging services that people could use to avoid detection by the data retention laws he is pushing through parliament.



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Turnbull explained that there were “always ways for people to get around things” in a television interview on Wednesday as he argued that journalists should take steps to ensure their interactions with confidential sources were protected.

The Senate is debating government legislation forcing internet service providers (ISPs) and telcos to store their customers’ records – such as the sender, recipient and time of emails and phone calls using the services the companies directly operate – for two years.

But, as previously reported, ISPs will not have to store “records about communications sent or received using third-party communications services running ‘over-the-top’ of their network or service” including popular overseas webmail platforms Gmail and Hotmail.

Turnbull told Sky News the legislation – which includes an amendment requiring government and security agencies to seek a warrant to access journalists’ metadata – struck the right balance between privacy and security.

When asked about the protection of sources, Turnbull said: “Well, they’ve got nothing in addition to fear. Those call charge records have been accessed by police investigating leaks for decades, but of course you now have the ability by using over-the-top applications – it might just be something straightforward like Whatsapp, it might be a more encrypted over-the-top application – to avoid leaving a trail.”

Turnbull then listed a variety of services he said journalists and sources could use to interact without the parties to the conversation being captured by the data retention bill.

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“If you have a device, a smartphone and if I call you just through the mobile phone network then there will be a record at Telstra that I called your number,” he told interviewer David Speers.

“If, on the other hand, I communicate with you via Skype, for a voice call, or Viber, or I send you a message on Whatsapp or Wickr or Threema or Signal or Telegram – there’s a gazillion of them – or indeed if we have a Facetime call, then all that the telco can see insofar as it can see anything is that my device has had a connection with, say, the Skype server or the Whatsapp server … it doesn’t see anything happen with you … It’s important I think for journalists to remember.”

Speers asked Turnbull whether that meant terrorists and child sex offenders would also be able to get around the new data retention laws.

“There are always ways for people to get around things, but of course a lot of people don’t, and that’s why I’ve always said the data retention laws, the use of metadata, is not a silver bullet,” Turnbull said.

“It’s not a 100% guarantee. It is one tool in many tools but I think as far as journalists are concerned … there’s a competing interest. You’ve got a duty to find out what’s going on and you’ve got a duty to protect your sources. On the other hand the government and the police have got a duty to ensure that people in the Department of Defence are not breaching national security by giving stuff to you.”

The Greens senator Scott Ludlam, who provided his own circumvention tips during the Senate debate on Tuesday, said Turnbull’s explanation indicated data retention could be a “$300m white elephant”.

Ludlam said nobody had been able to provide clear evidence that “vacuuming up the data of millions of innocent people” was effective in the fight against crime. He raised strong objections on privacy grounds.

The prime minister, Tony Abbott, has previously described data retention laws as “a very important piece of crime-fighting equipment” and necessary to avoid “a form of unilateral disarmament in the face of criminals”.

Abbott cited technological change – and specifically referred to Skype – as part of his explanation of why the laws were needed.

“Until quite recently, we had a relatively small number of telecommunications providers and they kept very comprehensive records for quite some considerable period of time,” he said last month.

“What we’ve seen in recent times is an explosion of different providers and a whole lot of different modes of communication. For instance, a lot of people don’t even use mobile phones that much these days, they use Skype and things like that. So, metadata and its retention is more important than ever if we are going to be able to track what criminals are doing.”

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Gaps in the coverage of Australian data retention laws do not guarantee a person anonymity.

The explanatory memorandum to the bill noted that “many companies based in foreign jurisdictions are subject to data retention laws in those jurisdictions, reducing the need for Australian legislation”.

Australia is part of the “Five Eyes” intelligence sharing arrangement, which also includes the US, Britain, Canada and New Zealand. These countries’ surveillance activities attracted scrutiny after disclosures by the former US National Security Agency contractor Edward Snowden.