The Cybercrime Legislation Amendment Bill 2011 ("Cybercrime Legislation") was passed by the Federal Parliament last week. Among other things, it introduces new requirements for telecommunications carriers and carriage service providers ("Carriers") to preserve stored communications (for example email, SMS, internet searches, and voice messages).

The Cybercrime Legislation will come into effect in a few weeks' time, but law enforcement agencies will not be able to issue preservation orders until the beginning of 2013. Penalties will apply for a failure to comply with a preservation order.

Historic domestic preservation orders

Enforcement agencies will be able to issue "historic domestic preservation orders", requiring Carriers to retain stored communications received by the Carrier in relation to a specific person or service on the day that order was issued.

Ongoing domestic preservation orders

Enforcement agencies will be able to issue "ongoing domestic preservation orders" requiring Carriers to preserve any stored communications in relation to a specific person or service not only on the day that order was issued, but also for the next 29 days.

Retention requirements for domestic preservation orders

The agency that requested the preservation order will not be able to access the stored communications until it obtains an interception or stored communications warrant. However, Carriers must preserve the stored communications the subject of a domestic preservation order for up to 90 days after the date of the domestic preservation order.

Foreign preservation orders

The AFP will be able to issue "foreign preservation orders", which reflect requests from foreign countries to obtain certain stored communications. A foreign preservation order requires Carriers to preserve stored communications in relation to a particular person or service on the day that the foreign preservation order was issued.

A Carrier cannot disclose the stored communications the subject of the foreign preservation order until it receives a stored communications warrant in relation to those stored communications. However, Carriers must preserve the stored communications the subject of the foreign preservation order for up to 185 days after the date of the foreign preservation order.

Foreign Law Enforcement Authorisations

The AFP may also issue Authorisations for the disclosure of telecommunications data (being non-content related information such as time, place and duration of a call) where there has been a request for such information from a foreign country. The scope of the disclosure will depend on the type of Authorisation issued by the AFP. The AFP is likely to be able to issue foreign law enforcement authorisations from mid-November 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.