: 600,000 disclosures of telecommunications data in one year

600,000 disclosures of telecommunications data in one year

Leanne O'Donnell
Federal

It is annual report season. And each year, technology journalists await the release of the Australian Communications and Media Authority (‘ACMA’) annual report which includes details on the number of disclosures of telecommunications data.

The controversial data retention laws passed in March this year amended the Telecommunications (Interception and Access) Act (‘the TIA Act’). Under this Act, an authorised officer of an enforcement agency can authorise the disclosure of specified information or documents in relation to the:

  • enforcement of a criminal law (s 178);
  • enforcement of a law imposing a pecuniary penalty or protection of the public revenue (s 179).

Access to telecommunications data is not limited to cases involving a serious crime or contravention of the law.

In the ACMA Annual Report, for 2014–15, it was reported that there were:

  • 584 029 disclosures of information relating to authorisations for access to existing information or documents — enforcement of criminal law
  • 7206 disclosures of information relating to authorisations for access to existing information or documents — enforcement of a law imposing pecuniary penalty or protection of the public revenue. (See appendix 11.)

In the previous ACMA Annual Report, for the 2013–14 year, it was reported that there were:

  • 563 012 disclosures of information relating to authorisations for access to existing information or documents — enforcement of criminal law;
  • 9162 disclosures of information relating to authorisations for access to existing information or documents — enforcement of a law imposing pecuniary penalty or protection of the public revenue. (See appendix 10.)

In its 2013–14 annual report on the TIA Act, the Attorney-General’s department reported that nearly 80 enforcement agencies had accessed historical data including the Bankstown City Council, Corrective Services NSW, RSPCA Queensland, Australian Health Practitioner Regulation Agency, Australia Post, the Civil Aviation Safety Authority and the Clean Energy Regulator.

One of the changes made to the TIA Act by the new data retention laws was to change the definition of ‘enforcement agency’ . As of 13 October, there is now a more limited list of ‘criminal law enforcement agencies’ that are permitted to authorise disclosures of telecommunications data such as state police, the AFP, ASIO, anti-corruption bodies, the Australian Crime Commission, the Australian Commission for Law Enforcement Integrity, the Department of Immigration and Border Protection, the ACCC and ASIC.

However, the Attorney-General can also declare an authority or body to be an ‘enforcement agency’, and is therefore able to authorise disclosures of telecommunications information. This declaration ceases within 40 sitting days after which it needs to be approved by the Parliament.

The new laws do allow for agencies such as local councils and Centrelink to request to be declared an ‘enforcement agency’.

Australia does seem to have a disproportionately high level of requests for telecommunications data. For example, Victoria Police alone made 62 737 requests for historical telecommunications data in 2013–14.

A report by Big Brother Watch stated that in the UK, between January 2012 and December 2014, there were 733 237 applications to access communications data by police forces. This is equivalent to 244 412 requests every year. In contrast, the Attorney-General’s department reported over 335 000 requests for telecommunications data by Australian enforcement agencies during the 2013–14 year.

It will be very interesting to see how these figures change as the troubled implementation of the data retention laws continue.

LEANNE O’DONNELL is a senior lawyer with a focus on issues where technology and the law intersect. She tweets as

@MsLods. This piece is written in her personal capacity.

(2015) 40(4) AltLJ 284
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