Australians could have their private phone and email records used against them in civil litigation cases, with the federal government considering relaxing data retention laws.
Critics say it would pave the way for phone and email records to be mined for material to be used in legal action following marriage breakdowns and business disputes.
![Many experts have warned that personal phone data could be mined for civil lawsuits.](/web/20161223064716im_/http://www.theage.com.au/content/dam/images/g/s/a/m/d/h/image.related.articleLeadwide.620x349.gtgdy6.png/1482427420967.jpg)
The Communications and Attorney-General's departments quietly announced they were conducting a review of national data retention laws five days before Christmas.
As part of the review, the departments are seeking feedback on whether there are particular kinds of civil proceedings, or other circumstances, in which prohibitions on metadata being released could be relaxed.
![Attorney-General George Brandis said the mandatory metadata retention regime ''applies only to the most serious crime''.](/web/20161223064716im_/http://www.theage.com.au/content/dam/images/g/i/y/9/x/l/image.related.articleLeadwide.620x349.gtgdy6.png/1482427420967.jpg)
The review has alarmed technology experts, many of whom warned that personal data could be used for civil lawsuits when data retention laws were first introduced.
"The plan to use the data in civil cases is an outrageous overreach and goes against the safeguards initially introduced," technology and law expert Angela Daly, of the Queensland University of Technology, said. "Data retention should be rolled back, not extended."
Internet law expert John Selby, of Maquarie University, said the review raised the possibility that data retention laws, initially justified on national security grounds, could grow to include measures well beyond their original intent.
"Such provisions may have seen even stronger public resistance to the law if they had been included at the time," Dr Selby said.
Since October last year, Australian telcos such as Telstra and Optus have been required to store metadata logs of people's email, internet, mobile and landline use for up to two years. The contents are not recorded.
The Coalition used the threat of terrorism to justify introducing the laws in 2014, vowing that people had nothing to fear from their introduction.
"The mandatory metadata retention regime applies only to the most serious crime – to terrorism, to international and transnational organised crime, to paedophilia," Attorney-General George Brandis told the ABC in 2014.
But the Communications Alliance, which represents Australian telecommunications companies, the Law Council of Australia and others warned that stored data could become a target for civil litigants and those with malicious aims.
Communications Alliance chief executive John Stanton told a parliamentary committee last year: "Our concern is that ...[it] may generate a tsunami of action in commercial disputes, in marital disputes and in many other cases where the data is being mined."
A spokeswoman from the Attorney-General's office said that as part of the data retention laws, there would be a prohibition on courts releasing telcommunications data to be used in civil legal proceedings, which would take effect in April next year.
However, she said, the review would consider whether there should be exemptions to this, and pointed out a parliamentary committee last year said there were some circumstances, including international abductions or family violence cases, where having access to metadata could be valuable.
The committee recommended the government review the "exclusions" from access to metadata by April 13, 2017.
While there were already provisions in the Telecommunications Act that allowed telcos to be compelled to produce data relating to court proceedings, this only applied in criminal cases, Deakin University criminology lecturer Adam Molnar said.
"One has to be concerned about the recent call for submissions over the holiday period - it's hardly fulsome conditions for informed debate," he said. "And extending this into civil litigation is potentially opening up a whole new can of worms."