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AFP backpedals on using metadata to chase pirates

Both the head of the AFP and Malcolm Turnbull have distanced themselves from links between data retention and piracy, saying police are "not interested" in illegal downloads.

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AFP Commissioner Andrew Colvin. Screenshot by Claire Reilly/CNET

The chief of Australia's Federal Police has had a swift about-face over the finer details of proposed data retention legislation currently before parliament, saying police are not interested in using metadata to police piracy.

The comments follow a press conference yesterday, during which AFP Commissioner Andrew Colvin joined Communications Minister Malcolm Turnbull, Attorney-General George Brandis and Director-General of ASIO Duncan Lewis to discuss the draft legislation.

During questioning, Commissioner Colvin said pursuing pirates was .

"I haven't even touched on some of the other range of crimes," he said. "Illegal downloads, piracy, cyber crimes, cyber security -- all these matters, our ability to investigate them is absolutely pinned to our ability to retrieve and use metadata."

During the conference, Minister Turnbull was quick to clarify Commissioner Colvin's point, saying that rights holders generally participate in torrent swarms to identify pirates in real-time, but they are still capable of matching metadata to individual users.

"Holding that data for two years probably doesn't make a big difference in terms of copyright infringement, because [rights holders] are dealing much more with the here and now," he said. "But that process of resolving an IP address to an account name is relevant and it happens all the time."

However, today Commissioner Colvin and Minister Turnbull have both moved to distance themselves from conflating data retention with policing piracy.

Speaking on ABC Radio's AM program this morning, the Police Commissioner said he wanted to be "very clear" on the needs of law enforcement and ASIO.

"The Government's introducing this to address vital needs of national security and law enforcement, not copyright," he said. "Copyright is essentially a civil matter...we will be using it for criminal matters.

"The Telecommunications Interception Act makes it very clear that we can only do this to enforce criminal laws. Copyright breaches are civil wrongs and that's not what we're interested in."

Malcolm Turnbull also stepped away from the piracy quagmire saying the Commissioner's comments were "not well understood" and that, while he does "not condone copyright infringement at all," the AFP and ASIO had better things to do besides pursuing 'illegal' downloaders.

"The Government's not going after people who infringe copyright online. That is a matter for the rights holders," he said. "The AFP and ASIO frankly are not interested in whether you are illegally downloading a copy of Game of Thrones. That's a bad thing to do but I can tell you our National Security Agencies have got other things on their mind."

Although piracy is not a criminal matter, rights holders can currently subpoena ISPs to access information in order to match IP addresses of people alleged to be infringing copyright to the specific customer details.

If ISPs are required under new legislation to retain customer metadata for two years, rights holders will feasibly have a guaranteed pool of information to draw from in pursuing piracy claims.

Minister Turnbull confirmed as much to the ABC today, saying that if ISPs "do have a [metadata] record, then using normal legal processes, it can be resolved to the account holder, and [rights holders] can take action".

Furthermore, ZDNet reports that Minister Turnbull today conceded mandatory data retention legislation would not prevent rights holders from seeking access to metadata through the courts.

"They can through civil proceedings. Sure, as they always have done," he told ZDNet. "They can go to court, and they can seek discovery of the records that disclose the account to which a particular IP address was allocated at a particular time, but they do not have warrantless access to metadata in the way the police and ASIO and Customs have."

While debate on the data retention bill was originally set to resume next month, Shadow Communications Minister Jason Clare has told the ABC that the bill needs "serious scrutiny," seeking to push a resolution on the matter into next year.

"It needs a couple of months of consideration by the parliamentary committee and the Government's agreed to that," he said.