A blanket ban on the use in lawsuits of data kept to comply with data retention obligations puts telecommunications providers in a difficult position, Telstra has argued.
On 13 April, a ban on the use of so-called ‘metadata’ in civil litigation will take effect. However, that ban relates to data kept by telcos solely to comply with the regime introduced by Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015.
The government last year quietly launched a consultation on the prohibition, seeking feedback on when the kinds of data covered by the data retention scheme are typically sought in civil proceedings, the potential impact on being denied access to that data in lawsuits, and the circumstances under which the prohibition should not apply.
The blanket ban will require telcos to work out whether the data sought in a subpoena, notice of disclosure or other court order has been retained solely to comply with data retention requirements, which “may be a complex question of fact and will add to the already significant costs of complying with the data retention regime,” Telstra argued in a submission to the consultation.
A telco may then be required to appear in court to provide evidence that it cannot comply with a subpoena because the data is covered by the prohibition, it added.
Telstra raised two potential alternatives to the ban. One is allowing access to any telco data in civil proceedings with leave of the court, “where the party requesting the information specifies what information is required and why that information is of evidentiary value in the proceedings”.
The other is removing the prohibition, with a court to provide the usual oversight involved in the disclosure of any sensitive data in civil proceedings.
“This approach has the advantage of enabling access to relevant material required for civil litigation, and does not require [carriers and carriage service providers] to make determinations about what information is required to be retained solely for data retention obligations,” Telstra argued.
“While more data will be retained, in some cases for longer periods than is the currently the case, the fundamental question in any civil litigation is how does that data advance the civil case. In civil cases we think that it is likely that data relating to, say location, is less likely to be of interest than such data is for law enforcement purposes.”
A court would be able to determine the probative value of any data requested on a case-by-case basis, Telstra added. Court supervision would deliver a balance between the needs to parties to a civil case to obtain relevant information and protection of individuals’ privacy.
“The preferred outcome would be a continuation of disclosure rules that provide the Court with the power to decide when to allow access to retained data in civil proceedings independent of the civil matter under consideration,” Telstra said.
Telstra has previously predicted that ‘metadata’ would surface in civil lawsuits.
Telstra also argued that telcos should also not be held liable in relation to any retained data released in relation to a request in a civil proceeding. Existing good faith protections for telcos in relation to law enforcement actions do not currently apply to civil proceedings.
In addition, if metadata is made accessible in civil cases, telcos must be able to recover costs, Telstra said. It suggested a scheme similar to the cost-recovery fees currently charged to law enforcement agencies.
“The advantage of system of fees is that it would be clear to parties in civil litigation the costs likely to be incurred for such data requests,” the submission states.