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720,000 warrantless metadata requests leads to calls for greater oversight

Legal experts are calling for greater oversight of mandatory data retention after documents revealed that police made more than 720,000 warrantless requests for metadata access over the past 5 years.

Attorney-General George Brandis has led the charge for mandatory data retention in Australia.Image by CeBIT Australia, CC BY 2.0

Australian police have made nearly 750,000 warrantless requests for metadata over the past five years under current law, according to documents submitted to the Parliamentary Joint Committee on Intelligence and Security inquiry into data retention.

In their submissions to the Committee, State and Federal Police (excluding NSW Police) revealed that they obtained 1,228 warrants for stored communications over the 5 years to June 2014. However, during the same period, law enforcement agencies sought authorisation to access metadata in 720,614 instances -- roughly 586 times the number of warrants obtained.

A stored communications warrant is required to access the content of telecommunications, such as a call intercept, while metadata is referred to as "historical telecommunications data" and does not require a warrant for access.

In its submission to the Parliamentary inquiry, the Attorney-General's Department played down the importance of warranted access to telecommunications data, saying that requiring law enforcement to obtain a warrant to access metadata would be "resource intensive" and would have a "disproportionate impact" on police.

However, legal experts have rejected these claims and called for greater oversight of mandatory data retention in Australia, including a warrant scheme for access.

"Law enforcement agencies will gain access to vastly more data under the new scheme and, as such, it is appropriate that the level of oversight also increases," said President of the Law Institute of Victoria, Katie Miller.

While police and security agencies say they are seeking to maintain the status quo by requiring the mandatory retention of telecommunications metadata, Miller argued that "warrants should be required for all requests for telecommunications data retained" under any proposed mandatory data retention scheme.

To highlight the difference between instances of warranted and warrantless access under current laws, Miller noted the number of stored data warrants obtained by police nationwide over five years equalled the number of metadata access requests made by Victorian Police in a single week.

"That's part of our concern -- it just shows how widely used [metadata] is and that it's not innocuous information, it's not less intrusive than the content."

Miller also said increased metadata access doesn't necessarily correlate to more crimes solved. She pointed to a study into the effectiveness of mandatory data retention in Germany which found that, after the scheme was introduced in that country, there was an increase of just 0.006 percent in the crime clearance rate.

"Just because they've accessed the telecommunications data, that doesn't mean that it necessarily goes anywhere with the investigation," she said.

While recognising the concerns of law enforcement agencies about a loss of access to metadata, she still questions the necessity of "information about everyone's communications [being] stored and retained for two years, just in case law enforcement agencies might find it useful at some point in the future.

"This is clearly very useful information to law enforcement. Nobody's disputing that it's useful, but...that needs to be balanced by taking into account the other public interests around this information, one of the most obvious ones being privacy."

The above figures are taken from the submissions of Queensland Police, Victoria Police, Tasmania Police, South Australia Police, Western Australia Police, Northern Territory Police and the Australian Federal Police. A submission from New South Wales Police was not available at the time of publication.