Communications Minister Malcolm Turnbull has officially launched the government’s campaign to establish a mass surveillance regime for Australians this morning, introducing the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 into the House of Representatives. The bill has been referred to the Joint Committee on Intelligence and Security.

The bill will establish a requirement for all companies providing communications carriage to retain data on their users for two years. Other companies, such as social media providers, currently aren’t captured by the regime but can be added by regulation at a later date. Remarkably, despite the Attorney-General’s Department having worked on data retention for at least six years, the bill leaves to regulations the detail of what data will be targeted under the regime. This means that many of the key questions raised by communications providers like iiNet about what data must be retained — questions crucial to assessing the impact of the regime — remain unanswered; it also means it will be easier for governments to add to the prescribed data set in the future.

The government has responded to repeated concerns about the widespread nature of access to communications data by limiting access to stored data to criminal law enforcement agencies, whereas currently any enforcement agency, including non-government bodies, can access communications data. The regime will also be overseen by the Ombudsman and be periodically reviewed by the Joint Committee on Intelligence and Security.

However, the government will not meet the full costs of the new regime, expected to costs telcos and ISPs hundreds of millions of dollars. Turnbull admitted today the government did not have a good understanding of what the actual costs would be, saying only that the government expected to make a “substantial contribution” to telcos’ and ISPs’ costs. In effect, companies will thus be forced to pass on a surveillance tax to consumers to fund the cost of the scheme.

The timing of the legislation at this point remains unclear: the government and opposition are discussing how quickly JCIS will conduct its inquiry into the bill, with Attorney-General George Brandis flagging that he believes nearly all of the work on data retention has already been done by the committee. That view is unlikely to be popular with the committee, where there was considerable frustration about the lack of detail in relation to data retention from the previous government and an expressed wish to have detailed legislation to consider. The committee has also worked non-stop in recent months holding inquiries into the first two national security bills, and its appetite for an inquiry that might allow the bill to be passed by the end of the year is not substantial.

The introduction has taken the communications industry by surprise. Consultations about the basic detail of the bill, and particularly the nature of the communications data to be retained, are still unresolved and will continue under a “working group” that will attempt to finalise the issue while the bill is before Parliament. Government backbenchers were only consulted during a rushed meeting about the bill this morning.

However, the government’s announcement went significantly off-track when new Australian Federal Police Commissioner Andrew Colvin, in response to a media question, specifically and enthusiastically linked data retention to allowing the copyright industry to pursue file sharing. Data retention has long been linked to the government’s support for the copyright industry and its war on internet users, but this was the first time it had been confirmed by a government official. Turnbull intervened after Colvin in order to attempt to downplay the Commissioner’s remarks, but couldn’t erase the clear impression that data retention is viewed as a copyright enforcement tool despite downloading being a civil, rather than criminal, matter.

Peter Fray

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