Greenleaf, Graham --- "Call data - no warrants needed" [1997] PrivLawPRpr 9; (1997) 3(10) Privacy Law & Policy Reporter 182

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Call data -- no warrants needed

Part of the unfinished business of the Barrett Review (see accompanying story), and possibly one of the reasons why the report was suppressed, was Barrett's recommendation that law enforcement agencies should be required to obtain a warrant from a magistrate before obtaining call data (information generated from the telephone system, such as who called who and when) from a carrier. It is not protected by a warrant system by the Telecommunications (Interception) Act 1979 (Cth), whereas the content of calls is protected. Nor is call data (or any other aspect of telecommunications) protected by the Privacy Act 1988 -- but of course it will be (in theory) once the Act is extended to the private sector.

The Telecommunications Bill 1996 presently before Parliament does not adopt Barrett's recommendations, and in fact contains provisions which will effectively exempt call data from any extension of the Privacy Act. Clause 267 of the Bill allows carriers to disclose where an authorised officer of a criminal law enforcement agency, a pecuniary penalty enforcement agency, or a revenue collection agency certifies that the disclosure is reasonably necessary (for enforcement of the criminal law, laws imposing pecuniary penalties, or public revenue).

The Privacy Commissioner, in a submission to the Senate Environment, Recreation, Communication and the Arts Committee's Telecommunications Bills Inquiry (January 1997), has stressed that this changes the position in the current Telecommunications Act by allowing the primary decision as to the necessity for the disclosure to be made by the requester, not the holder of the information. The Commissioner also notes that the proposed approach `is similar to one which is presently under consideration by the Standing Committee of Attorneys-General, in the form of a `notice to produce' scheme, which has met with objections from both the former Privacy Commissioner and the Human Rights Commissioner'. The Commissioner opposes the cl 267 approach, stating that carriers or service providers should have the onus for deciding the necessity for disclosure.

Barrett's approach of requiring a warrant seems an even more privacy-protective approach than the Privacy Commissioner recommends. It will be very interesting to see what approach the Walsh report recommends, as surveillance of call data takes on much greater significance in a context where strong encryption makes surveillance of the content of the content of communications more difficult. Of course, it may all be decided before the Walsh report is released.

Graham Greenleaf, General Editor.