[AusNOG] Telstra's Texan Teaser - Tin Foil Stetsun anyone?

[Geoff Huston]

On 28/06/2012, at 12:02 PM, Narelle wrote:

> On Thu, Jun 28, 2012 at 3:03 AM, Paul Brooks
> <pbrooks-ausnog at layer10.com.au> wrote:
>> On 27/06/2012 1:36 PM, Mark Newton wrote:
>>> But those same carriers seem to think nothing of not only disclosing
>>> who everyone is communicating with, but in some cases even sending the
>>> contents of the communications themselves (e.g., "GET http://foo HTTP/1.0" --
>>> that's call content, not call metadata!)
>> 
>> IANAL, but this may contravene the Telecommunications (Interception and access) Act
>> 1979 - Sect 7 seems to apply.
>> 
>> This communication has clearly been intercepted while passing over a
>> telecommunications system, between handset device and webserver device. It has also
>> been recorded, stored, and sent to another person.
>> 
>> A real lawyer aught to have a look at that.
> 
> IANAL either, but I did go briefly through the Telecommunications Act
> and the Interception Act yesterday to no avail.


IANAL but...

Interception of telecommunications in the Commonwealth of Australia is
governed by the Telecommunications (Interception and Access) Act 1979,
as amended in June 2006.

To quote the Explanatory Memorandum of the 2006 Act:

    "In relation to both telecommunications interception and access to
    stored communications, the Act makes clear that the general position
    is that these activities are prohibited, except in certain clearly
    defined situations. This reflects the primary focus of the Act which
    is to protect the privacy of communications."
    
The terms "communication" and "telecommunications system" are defined in
the Act as follows:

    communication includes conversation and a message, and any part of a
    conversation or message, whether:
    (a) in the form of:
        (i) speech, music or other sounds;
        (ii) data;
        (iii) text;
        (iv) visual images, whether or not animated; or
        (v) signals; or
    (b) in any other form or in any combination of forms.

    telecommunications system means:
    (a) a telecommunications network that is within Australia; or
    (b) a telecommunications network that is partly within Australia,
        but only to the extent that the network is within Australia; and
        includes equipment, a line or other facility that is connected
        to such a network and is within Australia.

Section 7 of this Act states:
    (1) A person shall not:
       (a) intercept;
       (b) authorize, suffer or permit another person to intercept; or
       (c) do any act or thing that will enable him or her or another
           person to intercept; 
       a communication passing over a telecommunications system.

A person who contravenes this section is guilty of an offence punishable
on conviction by imprisonment for a period not exceeding 2 years.
Limited exceptions to this prohibition are specified in other
subsections of s7. These include interception under an interception
warrant.  Interception warrants may be issued for two purposes: national
security and law enforcement. To the best of my knowledge neither case
applies to the web stalking interception activites.

Section 7 of the Act sets out a small number of exceptions to the
general prohibition on interception. One exception relates to carriers
and carrier employees:
  
    Exceptions applicable to carriers and carrier employees in relation
    to duties involving the installation of lines and equipment or the
    operation or maintenance of a telecommunications system.

So in this case the exceptions do not appear to apply - so it would seem
that there is case to be made that Telstra's actions constituted a breach
of the terms of Section 7 of the Telecommunications (Interception and Access) 
Act.

But will we see this taken further and see the carrier and the
individuals involved prosecuted under the provisions of this Act?

Geoff