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Report Says Digital Rights are Human Rights

Digital Rights Watch, an organisation with the aim of upholding digital rights, yesterday released its State of Digital Rights Report.  The Report focuses on and makes recommendations about digital privacy in Australia including metadata retention.

The Report is endorsed by several human rights organisations, including the Australian Privacy Foundation, Australian Lawyers for Human Rights, Amnesty International Australia, the Human Rights Law Centre and Save the Children Australia.

In making more than 24 recommendations, the Report takes particular aim at the Australian Federal Government’s mandatory data retention scheme, advocating for its abolition.  The scheme requires telecommunication service providers to retain metadata for 2 years, which can then be accessed at any time without a warrant by law enforcement and security agencies.  Metadata is not the communication itself, but details of the communication, such as the subscriber name, the source and destination of the communication, the location of the device making the communication and the time it was made.  Arguably, metadata can often provide more information than the content of the communication itself.

Introduced in 2015, the regime “risks creating a chilling effect on freedom of expression in Australia and violates the right to privacy” says Lizzie O’Shea, a contributor to the Report.  The Attorney General’s Department website states that metadata is used in the course of nearly every serious criminal or national security investigation.

The Report also argues for the introduction of a number of measures to improve data protection for Australians including introducing a statutory cause of action for serious invasions of privacy. Recognising the inherent tension between maintaining the privacy of individuals online and protecting the safety of the community, the Report aims to promote transparency of government action and limit it to what is necessary.  Given the potential utility to a government, and law enforcement, of having such information available for it to interrogate, it is unlikely that we will see any rollback of the mandatory retention laws anytime soon.

Copyright 2020 K & L Gates


About this Author

Warwick Andersen Technology Lawyer KL Gates

Mr. Andersen is a senior corporate lawyer with a focus on commercial, technology and sourcing projects. He has advised on large scale outsourcing projects, technology agreements for both vendors and customers, corporate support, privacy and telecommunications regulatory work. He has acted for government departments, large listed companies, telecommunications companies and technology suppliers.

Rob Pulham Corporate Attorney K&L Gates
Special Counsel

Rob Pulham is an experienced corporate advisory and transactional lawyer with an active technology and privacy practice representing companies in the energy, manufacturing, mining, retail, health and financial services sectors, as well as government and not for profit organisations. He has extensive experience advising customers and vendors in the technology industry, with particular focus on software licensing, data privacy and protection, and systems integration projects. In his role as a senior corporate lawyer, Mr. Pulham reviews organisational policies and practices regarding data privacy to identify key risks, develops and implements strategies to mitigate privacy and cybersecurity risks, and advises clients in the investigation of, and response to, data breaches.

Mr. Pulham also serves as a strategic advisor to his clients, regularly advising on large outsourcing and technology procurement matters including negotiating software licensing terms with ERP and CRM vendors such as Oracle, SAP and Salesforce, and on major systems integration transactions. He advises his clients on all facets of their technology practices, procurement and needs, including key technology procurement requirements and licensing issues (acting for both customer and service provider clients), marketing and advertising in compliance with Australian competition and consumer laws, website content and terms of use, and general commercial intellectual property and software licensing matters.