Australians' Stored Metadata Could Be Used In Civil Cases

[Mike]

It was bad enough when the Australian government announced that it was joining the growing club of countries that would be retaining huge swathes of its citizens' metadata. But now people are beginning to realize that once that store of metadata exists it not only can, but probably will, be used for many other purposes that have nothing to do with the avowed aim of fighting terrorism. The first hint that this might happen came from a slip made by the Australian Federal Police Commissioner, reported here by Gizmodo Australia:

When asked if stored metadata could be used to combat piracy, Australian Federal Police Commissioner, Andrew Colvin, replied at a press conference that the stored data of Australians could be used for a whole number of things, including anti-piracy:

“Absolutely. Any interface or connection someone has over the internet, we need to be able to identify the parties to that collection. Illegal downloads, piracy, cyber crimes, cyber security. Our ability to investigate them is pinned to the ability to retrieve metadata,” Colvin told journalists.

Understandably, this caused such a storm that the Australian government tried to backtrack. The country's Attorney-General, George Brandis, was quoted in TechWorld Australia as saying:

"The mandatory metadata retention regime applies only to the most serious crime -- to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool," Brandis told ABC's Q&A program last night.

So that's a return to the original script: metadata is for fighting terrorism and serious crimes. But Brandis then went on to say:

The laws will apply "only to crime and only to the highest levels of crime," the attorney-general said. "Breach of copyright is a civil wrong. Civil wrongs have got nothing to do with this scheme."

The trouble with that argument is that infringing on copyright can also be a criminal offense, as the Australian Federal Police (AFP) site explains:

The AFP is committed to taking action against those believed to be the organisers, major importers and/or wholesalers of infringing products.

The AFP is committed to building partnerships with industry and other law enforcement agencies to combat IP crime and wherever possible ascertain links to organised crime.

Moreover, the recent leak of the TPP IP chapter shows that one of its measures aims to lower the bar for the criminalization of copyright infringement, even when there is no commercial intent:

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. {For the purposes of this Article, [US propose, CA/MY oppose: such acts of [NZ: willful] copyright or related rights piracy {on a commercial scale} include at least:] [CA/MY propose: In respect of copyright or related rights piracy, acts carried out on a commercial scale include at least:] [CL propose:181] [182]

(a) acts carried out for commercial advantage or financial gain[CA propose:183]; and

(b) significant acts [CA oppose: of copyright or related rights piracy], not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace.} [AU propose:184]

Since it's still a draft, that's a bit of a mess, but the important parts are at the beginning -- "Each Party shall provide for criminal procedures and penalties to be applied" -- and at the end, where Australia wants criminal penalties even if "not carried out for commercial advantage or financial gain", but simply if they have "substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace". It's not hard to see how uploading a single music file might be claimed to do that, since potentially it could be copied thousands of times. That non-commercial upload would therefore be subject to criminal penalties under TPP, which opens up the possibility of using stored metadata to track down the person responsible.
The transcript of an interesting radio program from the Australian broadcaster ABC reveals another way in which stored metadata might be applied to cases involving alleged copyright infringement:

the Government not using metadata to fight internet piracy is one thing, the rights holders themselves using the metadata trove to expose customer details is an entirely different scenario.

[Australia's Communications Minister Malcolm Turnbull] admitted as much this morning, saying that under legislation, stored metadata would be accessible by third parties via a court order. That could mean that copyright holders could sue ISPs for customer information, forcing them to reveal which user was responsible for a download, opening up the user to claims for damages.

But this route could be used for any civil case, despite claims from the Australian government that data retention is only about serious crimes. A lawyer who works for Marque Lawyers, the law firm acting for the copyright owners of the film Dallas Buyers Club, explained on the program:

Any civil litigation where a question arises about a person's conduct or activities or where they've been and when they've been there, which often can arise in all sorts of civil cases. This kind of information could be extremely useful.

...

It's historically been quite difficult to get information out of telcos because they hold an enormous amount of data and not always in the most easily accessible way and they don't like handing it over. But if they're forced under this new regime into a protocol which establishes a very clear and consistent methodology for storing data for a particular period, then that becomes a much more easily accessible resource and much more difficult to say, "Oh, you know, we can't find it." Yeah, I think, I think it'll be quite popular.

It will doubtless be especially popular among copyright trolls, who will be able to use it to track down people before sending in their "speculative" invoices....
Retaining everyone's metadata in order to tackle terrorism was always a bad idea, given the attendant risks, but it looks like it could turn into a legal and political nightmare once the lawyers start applying to Australian courts for routine access to this highly-private information. That's yet another good reason not to proceed with this ill-advised scheme at all.

Originally Published: Wed, 05 Nov 2014 21:47:00 GMT
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