Illegal disclosure of blocked calling number information to ISPs

Several organisations, including at least Telstra, Optus and Comindico, are illegally disclosing silent and other blocked calling numbers to ISPs.

This is in breach of s.276 of the Telecommunications Act 1997. Breach of that section carries a penalty of imprisonment.

A complaint was made to the telecommunications regulator, the Australian Communications Authority ("ACA"), in mid 2003.

In August 2004, the ACA communicated its conclusion to the complainants that at least those three companies were indeed in breach of the law.

But, astoundingly, the ACA is taking no action to prosecute the offences, nor even direct the offenders to comply with the law from now on. Instead, it is limiting its enforcement actions to powder-puff measures under the associated Industry Code.

The Telecommunications Act provides complainants with no appeal or enforcement mechanisms against failure by the ACA to perform its responsibilities.

A complaint was submitted to the Commonwealth Ombudsman, in an endeavour to force the telecommunications regulator to do its job and protect the public, rather than protect the interests of telecommunications companies it is required to regulate. However, the Ombudsman declined to investigate that matter at that time because the calling number disclosure complaint was also under investigation by the Federal Privacy Commissioner.

In mid 2003, a complaint was also made to the Federal Privacy Commissioner (at the same time as the complaint to the ACA). The former Federal Privacy Commissioner advised in late 2003 that the OFPC would await the ACA's findings prior to deciding whether to undertake its own investigation into some or all of the matters raised. Subsequently, in late 2004, the OFPC commenced an investigation into matters raised in the complaint and the complainants await the OFPC's findings and decision.

For further information, see:

• Background / Overview
• Complaint Letters to ACA and OFPC, 28 Jul 2003
• ACA Decision in response to complaint, 19 Aug 2004
• Complainants' Commentary and Explanatory Notes re ACA Decision, Sep 2004
• Complaint Letter to Commonwealth Ombudsman re ACA decision, 6 Sep 2004
• Chronology of Events
• Status / Latest Information

Background / Overview

Many people assume their wishes and directions about protecting their communications privacy, by way of silent/unlisted numbers and blocking transmission of calling number information, would be respected by telephone and Internet service providers, but this is not always the case. Several individuals decided to complain about this to try to remedy the problem.

On 28 July 2003, representative complaints were sent to the Australian Communications Authority and the Federal Privacy Commissioner concerning disclosure of silent and other blocked calling number information by telephone call carriers to Internet Access Providers/Internet Service Providers ("ISPs").

The complaints were jointly lodged by three individuals under the relevant provisions of the Telecommunications Act 1997 and the Privacy Act 1988. Section 509 of the Telecommunications Act 1997 provides that "[a] person may complain to the ACA" about a contravention of the Act (including Part 13-Protection of Communications) and/or about a contravention of a Code registered under the Act. Section 36 of the Privacy Act 1988 provides that "an individual may complain to the Privacy Commissioner about an act or practice that may be an interference with the privacy of the individual".

The individual complainants have requested that this page note their thanks and appreciation for the assistance of Electronic Frontiers Australia, the Australian Privacy Foundation, and the Baker & McKenzie Cyberspace Law and Policy Centre in preparation of the complaints.

As stated in the complaints:

"... some telephone call carriers are disclosing silent and other blocked calling number information to some ISPs. Some commenced doing so only in the past two months, and we understand others commenced doing so last year. We believe the vast majority of individuals who have silent and other blocked numbers are not aware that blocking is being over-ridden.

The disclosure of blocked calling number information to ISPs poses serious real-world risks and consequences to individuals. We make this complaint firstly because we believe the Respondents' practices are in breach of law. Those breaches are all the more significant, however, because of the serious risks and consequences..."

Complaints sent to ACA and OFPC, July 2003

• Letter of Complaint to Australian Communications Authority, 28 July 2003
• Letter of Complaint to Federal Privacy Commissioner, 28 July 2003

ACA Decision, August 2004

• ACA's Decision in response to complaint, 19 August 2004
• Complainants' Commentary & Explanatory Notes on the ACA Decision, 9 Sept 2004

The ACA also issued a misleading media release, titled "ACA issues warning on silent and blocked numbers, on 26 August 2004. It stated:

"People with unlisted numbers, or those who have blocked calling number display, need to be careful about letting another person use their phone line to access the Internet, the Australian Communications Authority (ACA) warned today.
'Letting another person use such a phone line to access the Internet could lead to the number being disclosed to and used by that person's Internet service provider,' ACA Acting Chairman Dr Bob Horton said. ..."

The ACA release failed to mention the fact that the only reason people need to "be careful" in the above circumstances is because telephone call carriers are breaching the law and the ACA has declined to enforce the law.

Complaint sent to C'th Ombudsman re ACA Decision, Sept 2004

• Letter of Complaint to Commonwealth Ombudsman re ACA decision, 6 Sep 2004
  and Attachment 1 - Explanatory notes and commentary on the ACA's decision.

Chronology of Events

[Go to latest information]

28 July 2003:
Complaints sent to the ACA and the OFPC.

August 2003:
The ACA advised the complainants by letter dated 8 August 2003 that:

"The matters you raise are of considerable complexity, both legally and technically. The ACA's intention is to bring forward the work program it had already scheduled in relation to this matter, but it is not possible to say at this stage when it will be in a position to make a substantive response to the matters you and your colleagues have raised."

September 2003:
The ACA advised the complainants by letter dated 5 September 2003 that:

"the ACA has commenced its investigation" and
"The ACA is satisfied that most of the issues raised by [the complainants] should be regarded as systematic issues and that it is appropriate for the ACA to investigate them."

The Federal Privacy Commissioner verbally advised in early September 2003 that OFPC and ACA had discussed the matter and it was decided that, instead of both agencies conducting simultaneous investigations, the OFPC would await the ACA's findings. Depending on the ACA's findings and decision, the OFPC may or may not then commence its own investigation into some or all of the matters raised.

November 2003:
Some (all?) ISPs received letters from the ACA requesting information about their receipt and use of CLI by 1 December 2003. (The complainants became aware of issue of these letters from an ISP recipient who kindly provided a copy).

17 March 2004:
The ACA advised by letter that carriers and ISPs were generally co-operating in the ACA's investigation, but the "complexity of arrangements and responsiveness of some parties has meant that the investigation is taking longer than initially anticipated". The ACA also advised they had commissioned legal advice about matters raised in the complaint. The ACA said that due to the foregoing, they would not be in a position to provide a response to the complaint in the near future. They expected a response would be some months, rather than weeks, away.

8 June 2004:
An ACA representative advised by phone that the ACA's investigation was near completion and the ACA's response to the complaint would be provided in late June/early July 2004.

18 August 2004:
One of the complainants phoned the ACA to enquire when the ACA would be providing a response.

20 August 2004:
The complainants received the ACA's response dated 19 August 2004.

6 September 2004:
The complainants sent a complaint to the Commonwealth Ombudsman regarding the ACA's decision.

22 September 2004:
The complainants wrote to the Federal Privacy Commissioner requesting that the OFPC resume its consideration of the representative complaint of 28 July 2003.

24 September 2004:
The OFPC acknowledged receipt of the above letter.

12 October 2004:
The Commonwealth Ombudsman wrote to the complainants declining to investigate the complaint concerning the ACA's decision at that time because the calling number disclosure complaint was also under investigation by the Federal Privacy Commissioner. The Ombudsman advised that if the Privacy Commissioner's investigation did not arrive at a remedy which satisfied the complaintants requirements, the complainants were welcome to refer the matter back to the Ombudsman for further consideration.

17 November 2004:
An OFPC letter advised the complainants that the OFPC had decided to commence enquiries into matters raised in the complaint and invited the complainants to provide further information in relation to some aspects.

13 December 2004:
The complainants wrote to the OFPC in response to their letter of 17 November 2004.

11 July 2005:
The OFPC wrote to the complainants providing an update on the status of the investigation into the complaint and advised that they were formulating a proposed course of action in relation to some issues raised and would be in contact again in forthcoming weeks.