Metadata laws may close piracy loopholes
Adam Turner
Published: February 27, 2015 - 6:22PM
Even with a parliamentary committee's last-minute recommendations, Hollywood
pirate hunters will still probably use your metadata against you in court.
Australia's two-year metadata retention scheme looks set to become law, with
the Labor opposition expected to back it when debate resumes in parliament on
Tuesday. It's believed that Labor's support will come with a few key amendments
which add significant safeguards addressing some but not necessarily all of
the concerns tabled on Friday by the Parliamentary Joint Committee on
Intelligence and Security. There's still a lot for civil libertarians to be
worried about, but it's now harder to abuse the nation's vast treasure trove of
metadata.
Going on the parliamentary joint committee's recommendations, and reports of
which amendments Labor will push for, we should finally get a solid definition
of metadata. The list of the data to be retained should be enshrined in the
legislation. This means we'll know exactly what our ISPs are keeping on us and
have assurances that this list can't be quietly expanded by Attorney-General
George Brandis to include extra details like your web browsing history.
Considering our politicians struggle to explain exactly what metadata is, it
will be interesting to see how they go writing it down.
A specific list of agencies which can access our metadata is also expected in
the legislation, once again limiting scope creep by stopping the
Attorney-General alone deciding who can ask to see our metadata records.
These amendments go some way to addressing people's concerns about the new
metadata retention regime, but there is a major potential loophole when it
comes the piracy prosecutions.
The parliamentary joint committee recommends that parties to civil court cases
be prevented from obtaining your metadata;
Recommendation 23
The Committee recommends that the Telecommunications (Interception and
Access) Amendment (Data Retention) Bill 2014 be amended to prohibit civil
litigants from being able to access telecommunications data that is held by a
service provider solely for the purpose of complying with the mandatory data
retention regime.
To enable appropriate exceptions to this prohibition the Committee
recommends that a regulation making power be included.
Further, the Committee recommends that the Minister for Communications and
the Attorney-General review this measure and report to the Parliament on the
findings of that review by the end of the implementation phase of the Bill.
It's unclear whether this recommendation will be amongst the list of amendments
put forward by Labor. Without this change, the use of metadata in civil
proceedings would likely be at the attorney-general of the day's discretion.
The pleas of the powerful copyright lobby are unlikely to fall on deaf ears.
Even if it this recommendation is heeded in the amendments, the phrase "soley
for the purpose" creates a signifiicant potential loophole for copyright
holders. They can argue that the metadata they seek isn't solely kept as part
of the mandatory retention scheme, it's also retained to support the piracy
code. That makes two purposes, so the restriction doesn't apply and it's open
season on piracy metadata.
Brandis is expected to respond to the parliamentary joint committee report, but
time is running out if debate resumes in parliament on Tuesday. The fact that
we're having the metadata and piracy debates simultaneously is no coincidence.
If the civil litigants recommendation is ignored then the copyright police will
be relying on the discretion of an Attorney-General who time and again puts the
interests of copyright lobby groups before the interests of consumers such as
denying us US-style Fair Use copyright laws. Unless the legislation
specifically forbids it, there's little chance that Brandis would knock back
requests from copyright holders to call upon metadata when chasing pirates
through the courts in civil proceedings. Even if the civil litigants
recommendation gets through, the wording might hand the copyright police an
instant exemption.
It's true that the proposed piracy code will also let copyright holders take
advantage of your metadata, but in a much more limited way.
The piracy code doesn't grant copyright holders access to your metadata, even
after three strikes. It just compels your ISP to comply with a court request to
use metadata your IP address to find your name and then hand that name
over. With the metadata proposal on the table, it seems the copyright holder
could actually ask for access to your metadata in any civil piracy case, with
Brandis' blessing. Unlike the piracy code, this wouldn't necessarily be limited
to residental fixed-line connections eliminating a major loophole.
Copyright holders such as the backers of the Dallas Buyers Club case are
already complaining that the piracy code is too narrow for their liking. That
won't be a problem if they can rely on the Attorney-General to let them trawl
through your metadata and use it against you in any civil trial.
This story was found at:
http://www.theage.com.au/digital-life/computers/gadgets-on-the-go/metadata-laws-may-close-piracy-loopholes-20150227-13qobg.html
I write books. http://janwhitaker.com/?page_id=8
Melbourne, Victoria, Australia
[email protected]
Twitter: <https://twitter.com/JL_Whitaker>JL_Whitaker
Blog: www.janwhitaker.com
Sooner or later, I hate to break it to you, you're gonna die, so how do you
fill in the space between here and there? It's yours. Seize your space.
~Margaret Atwood, writer
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