Law enforcement access to telecommunications data: neither secret nor new

Parliament house flag post

Law enforcement access to telecommunications data: neither secret nor new

Posted 14/06/2013 by Nigel Brew



In the wake of the furore over the leaking of details of the US Government’s electronic surveillance program, PRISM, reports emerged in the Australian media ‘revealing’ that the Australian Federal Police (AFP) are accessing phone and Internet records without a warrant. In response, the Australian Greens announced on 11 June their intention to introduce a Bill to ‘strengthen the regulation of data collection on Australians’ by requiring law enforcement agencies to obtain a warrant to access such information. However, warrantless access by police to communications data has been in place for over 15 years and reported in detail annually since 2008, meaning such access is neither secret nor new.


Communications data is information about an electronic communication, that does not include the communication’s content. It was deliberately never defined in legislation to allow for developments in technology, but in September 2012, the then Attorney-General described it as:

… information about the identity of the sending and receiving parties and related subscriber details, account identifying information collected by the telecommunications carrier or internet service provider to establish the account, and information such as the time and date of the communication, its duration, location and type of communication.
Under the Telecommunications (Interception and Access) Act 1979 [TIA Act], police are able to access communications data without a warrant. This has been the case since late 2007, when amendments to implement the recommendations of the 2005 (Blunn) Report of the Review of the Regulation of Access to Communications took effect. Prior to this, police had been able to access basic call data without a warrant since at least 1997, under the Telecommunications Act.

In contrast, to access the content of a communication, police must obtain a warrant.
 
Access to ‘non-content’ communications data is available only for specific purposes and approved by an authorised officer within the relevant enforcement agency (defined in the TIA Act). As explained in the Parliamentary Library publication Telecommunications data retention—an overview:

Law enforcement agencies are able to access historical/existing telecommunications data … by authorisation under the TIA Act 1979, in cases where the information is considered reasonably necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty, or the protection of public revenue. Disclosures of prospective data (that which comes into existence after an authorisation is received and during the period it remains in force) can only be made in cases where it is considered reasonably necessary for the investigation of an offence that is punishable by imprisonment for at least three years.
The TIA Act 1979 report for the year ending 30 June 2011 states that communications data includes ‘Internet Protocol (IP) addresses and Uniform Resource Locators (URLs) to the extent that they do not identify the content of a communication’ (p. 10), which reflects the Explanatory Memorandum for the TIA Amendment Bill 2007. However, in September 2012 the Attorney-General specifically excluded websites, as did the Attorney-General’s Department (AGD) in October 2012 Senate Estimates, which confirmed that all URLs are regarded as content (p. 90).

The AFP recently outlined the importance of communications data to its investigations (submission 163, p. 15):

Non-content telecommunications data is an important investigative tool for the AFP. It can provide important leads for agencies, including evidence of connections and relationships within larger associations over time, evidence of targets’ movements and habits, a snapshot of events immediately before and after a crime, evidence to exclude people from suspicion, and evidence needed to obtain warrants for the more intrusive investigative techniques such as interception or access to content. Disclosure of non-content telecommunications data is one of the most efficient and cost effective investigative tools available to law enforcement.
Due to the high volume of requests and the routine uses to which the information is put, the AFP has previously rejected any suggestion that access to communications data be regulated by warrant (pp. 86–87):
So if you were wanting to grind the AFP to a halt, then you should implement a warrant scheme to actually do non-content data application—because 23,000 of these would require 23,000 judges to consider affidavits for those to be prepared and for those to be granted. It is an unrealistic expectation.
The warrantless system operates on the basis that accessing the details of a communication is less intrusive than accessing its content. Whether or not one agrees with this presumption, the bigger issue might be the lack of an agreed standard definition of communications data. This leaves open to question, for example, the extent to which agencies are/have been recording URLs under the warrantless regime in the belief that it constitutes non-content communications data, when recent Estimates evidence from AGD states that URLs amount to content, access to which, by definition, would require a warrant.


Thank you for your comment. If it does not require moderation, it will appear shortly.

Add your comment

[Click to expand]

We welcome your comments, or additional information which is relevant to a post. These can be added by clicking on the ‘Add your comment’ option above. Please note that the Parliamentary Library will moderate comments, and reserves the right not to publish comments that are inconsistent with the objectives of FlagPost. This includes spam, profanity and personal abuse, as well as comments that are factually incorrect or politically partisan. We will close comments after three months.




Captcha
Generate a new image
Type characters from the image:

Facebook LinkedIn Twitter Add | Email Print

FlagPost

Flagpost is a blog on current issues of interest to members of the Australian Parliament


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

Refugees asylum climate change immigration Australian foreign policy parliament social security welfare policy elections welfare reform school education health financing higher education Australian Defence Force emissions trading indigenous Australians women private health insurance people trafficking illicit drugs gambling health reform federal election 2010 United Nations Employment Asia disability income management Middle East Medicare Australian Bureau of Statistics statistics sport health forced labour federal budget Afghanistan Industrial Relations Carbon Pricing Mechanism politics dental health United States aid child protection environment poker machines Australia in the Asian Century Australian Sports Anti-Doping Agency steroids World Anti-Doping Agency National Disability Insurance Scheme detention aged care 43rd Parliament slavery health system Law Enforcement Australian Federal Police Criminal Law Fair Work Act Australian Public Service governance labour force people smuggling transport debt taxation international relations constitution New Zealand food WADA Australian Crime Commission pharmaceutical benefits scheme pensions public service reform children's health Aviation foreign debt gross debt net debt defence capability parliamentary procedure Senate Senators and Members ALP ASADA Newstart Parenting Payment multiculturalism Youth Allowance sea farers social media Higher Education Loan Program HECS federal state relations accountability Papua New Guinea youth paid parental leave same sex relationships corruption coal seam gas customs planning federal election 2013 Australian Electoral Commission doping OECD crime health risks International Women's Day Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy welfare ASIO intelligence community terrorist groups Australian Security Intelligence Organisation carbon tax mining High Court military history electoral reform employer employee renewable energy regional unemployment fishing European Union Federal Court family assistance skilled migration banking United Nations Security Council Australian economy forestry food labelling vocational education and training Drugs UK Parliament welfare systems Indonesia children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report energy science social inclusion human rights paternalism Australian Secret Intelligence Service sexual abuse terrorism World Trade Organization Australia public health China housing affordability bulk billing political parties water productivity health policy Governor-General US economy trade unions domestic violence export liquefied natural gas foreign bribery firearms question time speaker superannuation public housing election results by-election expertise public policy climate Intergovernmental Panel on Climate Change leadership voting Department of Agriculture Fisheries and Forestry regulation Pacific Islands reserved seats research and development new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare ADRV Census Indigenous constitutional recognition of local government referendum consumer laws PISA competition policy royal commission US politics violence against women language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage Population rural and regional mental health alcohol entitlements ministries Hung Parliament social citizenship maritime Iran transparency ANZUS regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution Members of Parliament Scottish referendum early childhood education Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly national security smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine asylum refugees immigration political finance donations foreign aid disability employment Economics efficiency human rights; Racial Discrimination Act employment law bullying asylum seekers Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct integrity retirement Parliament House standing orders prime ministers election timetable sitting days First speech defence budget submarines workers financial sector Canada Somalia United Kingdom GDP Tasmania world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Rent Assistance obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament Korea fuel rebate Australian Greens presidential nomination Racial Discrimination Act political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education Social Inclusion Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra environmental law federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition standards conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office NATO work-life balance

Show all
Show less