Retention and disclosure of location information and location identifiers OTT content and communication services

Abstract

This article describes how Australia’s metadata retention and disclosure regime addresses the retention and disclosure of location information and location identifiers by locally licensed telecommunications service providers and those that do not require a licence to operate in Australia. The article specifically looks at over the-top-content and communication services. The retention and disclosure duties are described in contrast to the powers of the law enforcement agencies to access and use location information from free online social networking services, whereas the law seeks to restrict the retention and thereby the disclosure of location information in respect of over the-top-content and communication services that are not provided by the licensed or unlicensed telecommunications service provider. The paper argues the retention limitations in respect of over the-top-content and communication services are undermined by the actions of the agencies to harvest location information and conduct big data analytics. Similarly, so does the discretion granted to the telecommunications service provider to retain location information in respect of over the-top-content and communication services, provided by a third party content service provider and then be required to disclose it, without any additional safeguards. The actions of the agencies and the discretion granted to the telecommunications companies undermine privacy protections.

Asymmetry in South Africa's Regulation of Customer Data Protection: Unequal Treatment between Mobile Network Operators (MNOs) and Over-the-Top (OTT) Service Providers

“…(At the same time, I am cognizant of, and in agreement with, arguments (see, for example, Krämer & Wohlfarth, 2018) that data protection regulation is necessary and that, when correctly calibrated, such regulation can be pro-competitive. In terms of RICA's sections 1, 39(1)(a), and 39(2), communication-related information includes internet protocol (IP) addresses; uniform resource locators (URLs); location information for mobile devices; international mobile subscriber identity (IMSI) numbers (serial numbers of SIM cards); and international mobile equipment identity (IMEI) numbers (serial numbers on mobile devices) (see Shanapinda, 2016a;2016b;Sutherland, 2017, p. 102). (A customer's communication-related information is hereafter referred to in this article as "RICA data").…”

“…The OTTs must comply with one act, while the MNOs must comply with two, and, as demonstrated above, there is every reason to believe that the compliance realities will be different between the two Acts (see also Mayer et al, 2016;Shanapinda, 2016a;2016b). This higher compliance threshold for MNOs than for OTT providers is clearly to the benefit of the OTTs.…”