The Cybercrime Legislation Amendment Bill 2011
("Cybercrime Legislation") was passed by
the Federal Parliament last week. Among other things, it introduces
new requirements for telecommunications carriers and carriage
service providers ("Carriers") to
preserve stored communications (for example email, SMS, internet
searches, and voice messages).
The Cybercrime Legislation will come into effect in a few
weeks' time, but law enforcement agencies will not be able to
issue preservation orders until the beginning of 2013. Penalties
will apply for a failure to comply with a preservation order.
Historic domestic preservation orders
Enforcement agencies will be able to issue "historic
domestic preservation orders", requiring Carriers to retain
stored communications received by the Carrier in relation to a
specific person or service on the day that order was issued.
Ongoing domestic preservation orders
Enforcement agencies will be able to issue "ongoing
domestic preservation orders" requiring Carriers to preserve
any stored communications in relation to a specific person or
service not only on the day that order was issued, but also for the
next 29 days.
Retention requirements for domestic preservation orders
The agency that requested the preservation order will not be
able to access the stored communications until it obtains an
interception or stored communications warrant. However, Carriers
must preserve the stored communications the subject of a domestic
preservation order for up to 90 days after the date of the domestic
Foreign preservation orders
The AFP will be able to issue "foreign preservation
orders", which reflect requests from foreign countries to
obtain certain stored communications. A foreign preservation order
requires Carriers to preserve stored communications in relation to
a particular person or service on the day that the foreign
preservation order was issued.
A Carrier cannot disclose the stored communications the subject
of the foreign preservation order until it receives a stored
communications warrant in relation to those stored communications.
However, Carriers must preserve the stored communications the
subject of the foreign preservation order for up to 185 days after
the date of the foreign preservation order.
Foreign Law Enforcement Authorisations
The AFP may also issue Authorisations for the disclosure of
telecommunications data (being non-content related information such
as time, place and duration of a call) where there has been a
request for such information from a foreign country. The scope of
the disclosure will depend on the type of Authorisation issued by
the AFP. The AFP is likely to be able to issue foreign law
enforcement authorisations from mid-November 2012.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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