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<div class="moz-cite-prefix">On 16/06/2015 11:25 PM, Paul Wilkins
wrote:<br>
</div>
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cite="mid:CAMmROT+mY+x5ELw+R5AAVUGqEJFdp6+OsaaJ848ryXXzzuMkZg@mail.gmail.com"
type="cite">
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<div>Paul,<br>
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I don't think we do disagree. There ought to be a demarc
which says this business is in or outside the scope of the
Act.<br>
<br>
</div>
That demarc is where you provide, as a service, communications
via electromagnetic radiation, ie. layer 2/3 services, ie.
someone pays you to put an IP on their CE. Layer 1 services
are not covered, as you point out. Or have I overlooked
something you see in contention?<br>
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<br>
I think you might have, and it gets a bit hairy.<br>
<br>
The type of service is important. The type of business is very
important.<br>
<br>
Note well that the definition of 'carry' is 'includes transmit, <b>switch</b>
and receive'<br>
<br>
If you are a licensed carrier, a carriage service provider, or an
ISP, you are in-scope IF you provide a relevant service. If you
provide a carriage service - or you resell someone else's carriage
service - you are automatically a carriage service provider - so
focus on the services.<br>
<br>
The words defining a relevant service are 'it is a service for
carrying communications, <b>or enabling communications to be
carried</b>, by means of guided or unguided electromagnetic energy
or both'. The 'or enabling communications to be carried' are
important, because <b>they are different from the definition of
'carriage service' in the Telco Act</b>. <b>And 'carry' includes
'switch'</b>.<br>
<br>
Layer 1 services (and Layer 0 services - dark fibre) are definitely
covered and in-scope - they are services for carrying
communications. The metadata might be fairly slim and static, but
the obligation is still there.<br>
Transmission services, including DSL, leased-line etc, Layer 2
services, Layer 3 services, non-IP services like MPLS, IPX, X.25,
ATM, Frame Relay etc are all in-scope as they are services for
carrying communications, even though they don't have anything to do
with IP addressing. It has nothing at all to do with IP addressing
or IP capability.<br>
<br>
Fairly straight-forward so far.<br>
<br>
VoIP calls are 'communications'. Emails are 'communications'. A VoIP
server or an email server still 'enables communications to be
carried by means....' in and out on the links to/from the servers,
even if the operator of the servers doesn't operate the links. So
these services appear to be in-scope as services too.<br>
<br>
HOWEVER - the definition of 'carriage service' in the Telco Act only
says 'service for carrying communications by means of guided...etc'
and doesn't include the 'or enable communications to be carried'
bit. Also, the Telco Act has a definition of 'electronic messaging
service provider' which is clearly intended to be something
different from a carriage service provider, and captures a pure
email processing entity.<br>
<br>
So, if you provide an email service ONLY, it would be in-scope - if
you were a licensed carrier, a CSP using the definition of the Telco
Act, or an ISP. If you aren't one of those three, then you may well
be OK for now - until you are captured at a later time by
187A(3)(b)(iii) 'of a kind for which a declaration under subsection
(3A) is in force' when they realise the loophole and the Minister
declares its to be a relevant service despite all this.<br>
<br>
OK, reading back through all that - its complicated, I am not a
lawyer either, and while I like to think I'm relatively on top of
all this, this is not expert opinion and maybe you really should get
a real legal expert opinion from someone with sufficient insurance
that if it turns out they interpret it differently from me or the
AGD, their insurance will cover your costs of complying even if your
real legal expert opinion also thought you didn't.<br>
<br>
Paul.<br>
<br>
<blockquote
cite="mid:CAMmROT+mY+x5ELw+R5AAVUGqEJFdp6+OsaaJ848ryXXzzuMkZg@mail.gmail.com"
type="cite">
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<div><br>
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<div>(I am not a lawyer, this is not expert opinion)<br>
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<div><br>
</div>
Paul Wilkins<br>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On 16 June 2015 at 22:13, Paul Brooks <span
dir="ltr"><<a moz-do-not-send="true"
href="mailto:pbrooks-ausnog@layer10.com.au"
target="_blank">pbrooks-ausnog@layer10.com.au</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
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<div class="h5">
<div>On 16/06/2015 3:30 PM, Mike Everest wrote:<br>
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<blockquote type="cite">
<div>
<p class="MsoNormal"><span
style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d">Hi
Paul, all,</span></p>
<p class="MsoNormal"><span
style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d"> </span></p>
<div style="border:none;border-left:solid blue
1.5pt;padding:0cm 0cm 0cm 4.0pt">
<div>
<div>
<div>
<div>
<p class="MsoNormal"
style="margin-right:0cm;margin-bottom:12.0pt;margin-left:5.25pt">Per
my understanding (having read the
relevant sections of the Retention Act
and the Telecommunications Act (the
definitions are somewhat recursive,
but it eventually comes down to
whether you provide a service for
carrying communications via
electromagnetic waves - whether or not
you have a carrier license).<span
style="color:#1f497d"></span></p>
<p class="MsoNormal"><span
style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d"> </span></p>
<p class="MsoNormal"><span
style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d">That’s
essentially the definition of a
carrier, and in Australia, if you
are a carrier then you need to be a
licensed one – so, moot point maybe
;-)</span></p>
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NO NO NO! To both of you!<br>
<br>
Being a carrier has NOTHING to do with providing IP
addresses, or services.<br>
<br>
A carrier license is a license to dig holes. Its a civil
construction permit, to build and/or own the underlying
cables or radio links. Nothing more.<br>
<br>
If you *operate* the cables, or services provided over the
cables (yours or cables you lease from someone else) then
you are *also* a CSP - Carriage Service Provider.<br>
You don't need a carrier license to own buildings, you
don't need one to own the equipment that lights up the
cables, you don't need one to provide services, you don't
need one to lease a connection from someone else. You only
need a carrier license if you own the underlying
cable/radio link as an asset (and its more than 600
metres, or crossing a property boundary), or you want to
build a new one.<br>
<br>
To the point - being a licensed carrier has NOTHING to do
with data retention. A licensed carrier, that doesn't
provide services, has nothing to retain.<span
class="HOEnZb"><font color="#888888"><br>
<br>
Paul.<br>
</font></span></div>
<br>
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