From Tuesday, telecommunications companies must keep much more data, and in most cases government agencies may access it without a warrant

The new world of Australia’s data retention scheme begins on Tuesday. From now, certain types of phone, internet and location data will be compulsorily swept up by telecommunications companies for the benefit of government agencies.



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The new laws vastly expand the retention of personal data. Until Tuesday, retention by phone and internet providers was inconsistent. Data about who Australians called and texted was generally held by larger companies for billing purposes, but much more will now be stored, for a mandatory period of two years. Location data, information about devices, IP data of email logins and amount of data used will all be retained.

The government has emphasised that this type of data is only “metadata”, not content. But in aggregate, the effect is the same. It inescapably paints a picture of our lives.

The justification for the retention scheme was to assist national security agencies in fighting terrorism and other serious offences. But the laws do not limit access to the data to those purposes. Law enforcement agencies can still access it for much more trivial reasons – even a parking or littering offence could be enough to have your personal data accessed.

Access will for the most part not require a warrant, as has been the case for many years. Agencies need only fill out a form to hand over to a phone or internet company.

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Journalists fared the best from amendments to the laws, although even those gains were slim. Warrants must be sought to access their data in an attempt to identify their sources. But these proceedings will occur behind closed doors and without their knowledge. And no warrant is required if a government agency goes fishing among its own employees for contact with journalists.

Already the range of agencies that can access the data has been extended; a separate bill passed with Labor’s support included the Australian Border Force. The amendments avoided oversight by the parliamentary joint committee tasked to oversee aspects of the scheme.

Some are turning to virtual private networks in an attempt to reduce their digital trails. But care needs to be taken with how VPNs are used, and which ones can be relied on. Lofty claims of guaranteed confidentiality or anonymity should be treated with a high level of scepticism.

Some will need a much higher level of security. Journalists, lawyers and other professionals who value confidentiality would be best served by learning more about the range of counter-surveillance techniques they can employ to mitigate risks to confidentiality, outlined by the Electronic Frontiers Foundation and Freedom of the Press Foundation. Even these tools have limits but are still critical to reduce the risks.

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Much is still not known about the technical details of the retention scheme. As Crikey has reported, some telecommunications companies appear to be unprepared for it. Some are still trying to work out whether they are caught within the scope of the laws, which apply generally to Australian telecommunications companies. And the costs of the scheme – which the government has agreed to share – will still affect an industry struggling to get to grips with what exactly is being asked of it.

Policing how organisations store data and how law enforcement agencies access it will be difficult. The Office of the Australian Information Commissioner will soon release an audit into how telecommunications companies respond to these requests. The commonwealth ombudsman will also have an oversight role. But there are many unknowns about how the sector – and the government agencies that will be dealing with them – will manage the vast new trove of data they will start to accumulate from Tuesday.