Will Ockenden reported this story on Monday, February 2, 2015 18:46:00

MARK COLVIN: After all the pressure from Government and the security services for mandatory metadata retention, the Federal Attorney-General's Department has admitted that Australians can avoid it simply by using overseas services.



The admission came at a Senate inquiry this afternoon.



It heard that if people used what's known as Over The Top messaging, their communications would likely escape being caught up by ISPs.



Over The Top messaging uses the internet to send messages, rather than traditional phone channels, and it's seen huge growth rates over the past few years.



The Department's also confirmed that any metadata gathered and stored by internet service providers will also be accessible through litigation, for example by Hollywood studios prosecuting copyright cases.



Will Ockenden reports.



WILL OCKENDEN: If there's one thing the smart phone revolution has brought the world, it's a explosion in the different number of ways to contact each other.



People can now use Snapchat, Skype, WhatsApp, Twitter direct messaging, Facebook messenger, Google hangouts, and even the chat function on the scrabble app to communicate.



It seems there's a new messaging app every week, but while they all work slightly differently from each other, they all have one thing in common.



They're all from overseas, and they're all operated by foreign companies.



As such, according to the Attorney-General's Department, the services won't be included under the nation's proposed metadata retention scheme.



SCOTT LUDLAM: So if my email account is an @iinet.net.au address, it will be within scope. And if my email is an @gmail.com, it'll be out of scope.



WILL OCKENDEN: That's Greens Senator Scott Ludlam, who was quizzing the Attorney-General's Department as part of a review by a Senate Committee of the Telecommunications Interception and Access Act.



SCOTT LUDLAM: All I need to do to avoid mandatory data retention is just to take a webmail service.



WILL OCKENDEN: Webmail includes services like Gmail, Hotmail or Yahoo.



Anna Harmer is from the Attorney-General's Department.



ANNA HARMER: I don't know that it's quite as simple as that for the reasons that I set out previously in relation to the Telecommunications Services.



SCOTT LUDLAM: Why is it more complex than that? If I use a cloud hosting provider or Gchat, or something like that, I won't be caught.



If I use an iinet or an Internode address, I will be caught. If it's more complex, please explain how it's more complex.



ANNA HARMER: So it's correct that iinet, Internode as an Australian carrier service provider, depending on which part of the entity you're using, is subject to the obligations.



Gmail itself, or Google as an entity, is not subject to the obligations. So that is in relation to the provision of the email service.



WILL OCKENDEN: Because services like Gmail use encryption for users who send mail via the web browser, it makes it very hard for authorities to know who is talking to who.



Which is a pity for the metadata retention scheme, as that is the entire point of it.



SCOTT LUDLAM: Are you trying to drive people away from Australian service providers?



ANNA HARMER: I think we've articulated the intent of the bill and the Government's articulated the intent of the bill in terms of its coverage.



SCOTT LUDLAM: Is that an unintended consequence, that you will be driving people away from Australian service providers?



ANNA HARMER: No, no Senator.



SCOTT LUDLAM: It's intended?



ANNA HARMER: I wouldn't frame it in those terms, Senator. I think, you know, the Government has made it clear that the obligation applies in relation to service providers who maintain their business and their infrastructure here in Australia.



WILL OCKENDEN: It's not to say the data can't be obtained by police, they can still subpoena the companies for data.



But they won't be able to easily ask Australian ISPs for the information that they want under the current system of warrantless metadata requests.



So how much is this whole scheme costing? Well, the Attorney-General's Department also told the inquiry that it doesn't know if Parliament will be told the final cost of the metadata retention scheme before the legislation is voted on.



And it also confirmed that data stored by telecommunications companies under the scheme would be accessible via litigation.



ANNA HARMER: So what will exist, yes, will be a range of data that is not necessarily retained for that same period at the moment.



So some data which is retained for a brief period will now be retained for longer.



SCOTT LUDLAM: That's right. Which will be quite useful, actually, if you're a rights holder and you're trying to find out who's downloading your stuff.



WILL OCKENDEN: Many expected the Attorney-General's Department to take that position, but it does mean that third parties will be able to use the metadata for their own purposes.



That could include Hollywood studios tracking down people who are suspected of file sharing.



MARK COLVIN: Will Ockenden.