Australia: Metadata retention commences, but breach notification delayed

Introduction

On 13 October 2015, substantial amendments to the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA) took effect to introduce a new metadata retention scheme into the TIA. This scheme requires telecommunications carriers and internet service providers (telcos) to maintain records of certain telecommunications data, known as 'metadata', for a period of two years.

What is being kept and why?

Under the metadata retention scheme, the metadata to be kept includes:

  • subscriber or account-holder details;
  • the source of the communication (whether it is an account, service or device);
  • the destination of the communication (whether it is an account, service or device);
  • the date, time and duration of the communication or connection;
  • the type of communication (voice, SMS, email, instant message, forum post or social media) and the type of service used (such as ADSL, Wi-Fi, VoIP or a 3G or 4G telecommunications network); and
  • the location of the equipment or device at the start and end of the communication (such as a mobile tower or Wi-Fi hotspot).

The content of a communication itself is not retained under this scheme. Web-browsing history is also specifically excluded from the metadata retention scheme. In essence, it is the who, when and where of the communication that is being kept, but not the what of the communication.

Under the scheme, metadata is required to be retained so that law enforcement and security agencies can access this data for law enforcement and security purposes (which they can do without needing to first obtain a warrant). In the case of metadata relating to journalists, a specific 'journalist information warrant' must be obtained before an agency can access metadata about a journalist.

The commencement of the metadata retention scheme introduces another set of regulations that need to be complied with. The Federal Government has indicated that it will make a 'reasonable contribution' towards the costs of implementing the scheme and has established a fund of $130 million for this purpose (which is less than some estimates by the telcos for the total cost of implementing the scheme).

However, the amount and manner of any financial assistance to be provided to individual telcos still remain unclear. A number of media reports also indicate that many telcos have sought approval to enter into 'data retention implementation plans', which would allow the telcos up to 18 months to become compliant with the metadata retention scheme.

What is the practical impact for the public?

The introduction of the scheme means that a high volume of metadata will be kept about various online activities and communications of an individual, even though an individual has not committed or been accused of any crime. The Privacy Act 1988 (Cth) will apply to all metadata retained by telcos under this scheme, so existing protections under that Act will cover any metadata retained in relation to individuals.

There is also a risk that, once retained, such metadata could be accessed and used in other ways. Metadata may be a target for hackers or cyber-criminals (although the TIA requires that any metadata collected under the scheme be stored in an encrypted format and protected against unauthorised access or disclosure). Additionally, there is a possibility that metadata could be the subject of a subpoena or otherwise used in civil proceedings (such as commercial litigation or in family law proceedings).

Mandatory data breach notification delayed

When the introduction of a metadata retention scheme was being debated in Federal Parliament, one of the important recommendations of the Parliamentary Joint Committee on Intelligence and Security was that a mandatory data breach notification scheme should be introduced to provide additional protections. Under such a scheme, Australians would in certain circumstances be notified if there was unauthorised access to, or an unauthorised disclosure of, their personal information that was being held by a Federal Government agency or private sector organisation (which would include the information retained by telcos under the metadata retention regime).

As we reported at the time, in March 2015 the Federal Government agreed to support this recommendation and indicated that a mandatory data breach notification scheme would be introduced by the end of 2015. The Government also stated that it would consult on draft legislation to introduce such a scheme.

Recent comments in the past few days by the Federal Attorney-General have clarified the Government's intention in this regard. The Attorney-General indicated that a bill for mandatory data breach notification laws would be introduced into Federal Parliament this year, but that the scheme itself would not commence operating this year. As the last sitting day this year for Federal Parliament is 3 December 2015, we expect to see the proposed legislation by early December at the latest. It appears likely the proposed legislation will amend the Privacy Act 1988 (Cth) to introduce the requirement for mandatory data breach notification to Federal Government agencies and private sector organisations that must comply with that Act.

Once mandatory data breach notification does become law, and there now seems little doubt this will occur during the course of the next year or so, it will put a whole new spin on privacy reform. There will be nowhere to hide in the case of a serious privacy breach, with the very real prospect of a costly class action following the breach, as has been the case in North America.

Cyber-risk is in the top three risks for most organisations. For that reason, it is critical to have a response plan setting out what to do if a breach occurs. Many breaches arise from weaknesses in your vendors' systems, rather than your own systems. It is therefore also important to have a vendor cyber-risk management framework in place. Our Australian Privacy and Cyber-risk Team has worked with our colleagues overseas to develop two fixed price global best practice cyber-risk management packages to address these issues. Please contact us for further details.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.