YOUR digital privacy is being incrementally eroded at an alarming rate, Australian privacy advocates warn.

The concern comes as the Attorney-General’s Department announced it is considering opening up access to people’s personal telecommunications metadata in civil proceedings.

In doing so the Turnbull government is quietly heading down a path that many warned was coming more than two years ago when the Coalition first introduced mandatory data laws forcing the country’s telcos to collect and keep the incredibly revealing metadata of its customers.

This week internet service providers began blocking access to sites that host illegal torrents and streaming services but the site blocking regime has already proved fallible. However this could prove to be the real threat to online pirates.

If a person’s metadata can be requested in civil cases it could one day be used by rights holders to go after online pirates.
The government says it is seeking public input on the specific circumstances, or “appropriate exceptions” in which metadata could be sought by plaintiffs in civil cases. But privacy advocates are concerned about the direction the government is heading.

Electronic Frontiers Australia CEO Jon Lawrence has been among those who have condemned the potential move saying it amounts to a betrayal of the Australian people.

“We warned of this potential expansion in scope before the legislation was passed and are therefore not entirely surprised that the government is considering this move, though of course it is very disappointing,” he told news.com.au.

“This government has arguably done more to undermine the privacy rights of Australians than any other since World War II, and this represents just the latest betrayal of those rights.

“We will be pushing for a comprehensive review of this legislation in 2017 and will strongly oppose any move to make this data available in civil cases.”

Prior to the introduction of the mandatory data retention laws, the telco industry and a number of politicians warned the laws could soon be expanded in scope. But those fears were quick to be allayed by proponents of metadata collection, saying the information would be reserved for fighting serious crimes such as terrorism and child pornography.

“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,” Attorney General George Brandis Brandis told ABC’s Q&A program in 2014.

Law enforcement officials also said such data would not be used to go after pirates and copyright infringers.

“The Government’s introducing this to address vital needs of national security and law enforcement, not copyright,” AFP Commissioner Andrew Colvin said in October 2014.

But pretty quickly it seems, terrorism and paedophilia could be on the same footing as much more benign civil matters when it comes to accessing people's metadata.

A Parliamentary Committee reviewed the data retention legislation when it was first tabled and recommended the laws “prohibit civil litigants” from being able to access metadata. However the committee also recommended the ability to make “appropriate exclusions” which is the basis for the government’s latest request for public submissions.

“The committee considered that as the data retention regime was established specifically for law enforcement and national security purposes, as a general principle it would be inappropriate for data retained under the scheme to be drawn on as a new source of evidence in civil proceedings,” the government wrote.

“However, the committee also indicated that it was aware of the potential for unintended consequences resulting from a prohibition on courts authorising access to data retained under the scheme and recommended that the Minister for Communications and the Attorney-General review this measure.”

The current situation offers a stark contrast from Malcolm Turnbull’s previous thoughts on the matter of digital privacy.

“It seems to be heading in precisely the wrong direction. Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual’s right not simply to their privacy but to having the right to delete that which they have created in the same way as can be done in the analogue world,” he said.

The expectation of being hit with an increase in court orders requesting customer data be made available was something Telstra flagged in their original submission to the inquiry into the government’s data retention bill.

If the government does open the metadata floodgates to civil litigation, the country’s biggest telco says it expects to have the cost of producing the data paid for.

“Telstra already responds to subpoenas issued in civil proceedings in which telephone records are requested,” a Telstra spokesman said.“Our expectation is that if any changes were introduced, the usual court rules where a party to a civil action is seeking documents from a non-party by subpoena would apply.

“This would mean that documents requested must be relevant to the issues in dispute. Further, the party requesting the documents would pay the non-party’s costs of producing the documents.”