[AusNOG] Confirmation of govt blackholing. Was: Re: Understanding lack of Aus connectivity to melbournefreeuniversity.org.

Thu May 16 16:51:19 EST 2013

Well ... sort of.

In reality parties seeking Orders need to apply to the Court in the first instance. That's called commencing proceedings, after which you have the right to appear & put your argument up to the Court. If the ASIC (for e.g) fails in their application, generally 'costs follow cause' & that mean you'll have a good chance of prevailing in a 'Costs Hearing'.

Quite obviously, if you've prevailed then you don't need to consider the matter further or to effect the demand made upon you.

Most non lawyer, businessmen I've met over the years remain fearful of 'simply doing nothing' or 'telling the Authority that made the demand that they're not prepared to comply'.

My advice is, if you don't wish to pay a lawyer, respond directly to the demanding party asking them to set out the precise basis in law upon which they rely in making their demand. This is most likely all that your lawyer is going to do anyway in the first instance. After you receive a response you might like to take the response to a lawyer .. but at least you've saved a few quid in the first instance. A lawyer will be able to advise you as to whether the demanding party is attempting to unreasonably demand something from you or not.

Refer to the Act & the Code. At all times.

Don't ever think the law is about 'what's a fair thing', because it's sadly not. Rather, it's just about the letter of the law & how it's interpreted & argued.

The demanding party is not likely to commence proceedings against you in the interim in the absence of a response to a request to set out the legal basis they rely upon. Also, it can be argued that Government Departments & the various Authorities need to adhere to a higher standard in litigation via the Doctrine entitled 'The Model Litigant'.

Therefore, I agree with the sentiment that you all should not simply roll over at the first demand. Ask them to provide the argument they'd rely upon in Proceedings.

-P

From: ausnog-bounces at lists.ausnog.net [mailto:ausnog-bounces at lists.ausnog.net] On Behalf Of Christopher Pollock
Sent: Thursday, May 16, 2013 4:11 PM
To: ausnog at lists.ausnog.net
Subject: Re: [AusNOG] Confirmation of govt blackholing. Was: Re: Understanding lack of Aus connectivity to melbournefreeuniversity.org.

That's the thing though - it does actually need to be enforced by the legal system.  Don't just do something because you got a letter or a phone call from something that sounds vaguely official from some government department.  Get legal advice.  Stay informed.  The legal system works on the fact that people are deprived on information; don't be one of them.

"Come back when you have a court order."

It is, and always has been, the correct response.  Don't do anything just because someone says you have to.  And if you are in a position where your employers tell you to do something that you reasonably believe you aren't legally obligated to do, you need to object.  They hire you for your skills, expertise and wisdom; implore them to listen to those things.

--
Christopher Pollock,
io Networks Pty Ltd.
e. chris at ionetworks.com.au<mailto:chris at ionetworks.com.au>
p. 1300 1 2 4 8 16<tel:1300%201%202%204%208%2016>
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skype: christopherpollock
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http://www.ionetworks.com.au
In-house, Outsourced.

On Thu, May 16, 2013 at 3:54 PM, Heinz N <ausnog at equisoft.com.au<mailto:ausnog at equisoft.com.au>> wrote:

We need to pull our heads out of our asses and start asserting our rights,
otherwise we may well end up with red underpants on our heads.  It is we,
the members of this list, that control the Internet in this country.  Not
Conroy, not ASIC; us.  We hold the figurative keys to almost every major
network in Australia, and at least one International path.  There is no
'internet kill switch' until we bend over and build one, no blocking until
we implement it.  We have incredible power, both individually and
collectively. We are the gatekeepers; I suggest that we start acting
accordingly.
[snip]

While most people on this list would understand *exactly* what is going on (and are outraged by it and agree with the comments), we live in a real world with laws. There are people who don't even know how to use email! (I have some as clients) It is people like them that get elected to make brain dead decisions and turn them into laws that people with guns enforce. These same people don't know what a DNS or IP address is. They just got some fat old overpaid consultant to produce some large unintelligable report that they then immediately misinterpreted and now think they understand this new fangled internet thingy.

To say that one would expect any worker to in the industry to stand up to the AFP (or other govt dept) when they are enforcing some brain dead law is not reasonable. The only thing you can do (as I try to do) is educate your clients (and bosses) about privacy, freedom and the real need for plausible deniability built into all their procedures. Corporates do understand C.Y.A. Also, access to good legal advice is essential.

I am sure that if John Linton (co-founder) of Exetel were still alive, he would not have just rolled over to ridiculous requests and would have told them where to go (like apparently TPG did). Like it or not, it is the guys in the top floor offices that we all have to try to educate. It is THEM that have to push back because they understand the gradual erosion that is happening by stealth and have the power to act. The average worker doesn't.

Regards,
Heinz N.
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