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Metadata Retention in Family Law Cases

By January 18, 2017No Comments

New data retention laws that require internet and phone companies to retain records of customers’ metadata have sparked concerns over how such information could be used in family law proceedings. The retention scheme is designed to help the government combat terrorism, with law enforcement agencies able to access the data without a warrant. However the Government is now launching a review to consider whether the regulations should be changed to allow civil courts to access the data in family law cases.

So what does this metadata include? Metadata stored in phones and computers can be thought of as a footprint of personal activity online or on your phone. However it doesn’t include the actual content of what you’re doing. For instance metadata doesn’t include your web browsing history, because this constitutes content. But if you make a call it will include the number called, location of the call and its duration. It can include the email addresses you are sending and receiving mail from, but not the content of those messages.

In many family law cases such records will hardly be relevant. However the Government is considering allowing access to such records in instances of violent relationships or in international child abduction cases. The president of the Law Council of Australia, Fiona McLeod, said she had “grave concerns” about the possible extension of the powers.

“The regime that’s in place is one of the most intrusive regimes in the industrialised world,” she told 7.30.

“If they are to extend that use to civil proceedings, it goes well beyond the justification of those laws.”

Such a change in regulations would extend the powers of civil courts, who presently can only issue subpoenas for telecommunications data if the data is being collected for operational reasons by the service provider. Changes may make it easier to access such records and tempt more individuals in family law disputes to bring communications data into proceedings. The ramifications of what this may mean for people in the process of a divorce or property dispute is less clear.

See more regarding proposed changes here:


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