[AusNOG] LAW REVIEW - Data Retention for Content Service Providers and Hosting Service Providers

[Chris Macko]

[http://www.intervolve.com.au/email/logo.gif]<http://www.intervolve.com.au/>



Hi Guys,

It doesn't appear that Content Service Providers and Hosting Service Providers have a real serious voice to represent them in Australia (otherwise someone would have emailed this information sooner), so I'm standing up for each one of you involved in that particular area. Study up on your laws. Here's what I've been advised, do your independent research, until I'm proven otherwise I'll stick with the advice of my advisors and independent research;

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Data Retention Issues
We are confident that Intervolve will not presently be caught by the legislation as drafted.  We have also had a look around for any hints as to future declarations. Estimating costs is extremely difficult should such a declaration ever be made.  We have used the estimate from PwC that were given to the government to give some sort of guidance. We have also included guidance on creating a data retention plan.
Do the metadata retention laws apply to Intervolve?
Given the nature of the services provided by Intervolve (Hosting, Colocation, Managed Services etc) they can be considered a content service provider and a hosting service provider under the Broadcasting Services Act 1992, but not an internet services provider. An internet service provider is a person who supplies an internet carriage service to the public. Therefore the new legislation does not apply to Intervolve, unless a declaration is made under s 3A.
Andrew's email suggests that it may be sensible to begin storing information in the case of queries to correlate stored data from carriage service providers. This may be an option to be on the 'safe side' however we don't believe it to be absolutely necessary. Obviously, Intervolve would need to comply with the Privacy Act when storing this type of data.  Primarily our concerns, which go against his recommendation, are centred around the resources and costs involved in establishing a methodology purely to deal with queries when there is no legislative imperative.
If Intervolve were to be covered by a future declaration
The first reading information and the second reading speech did not offer any hints as to future declarations. We suspect the option for future declarations is to impose a safeguard for ISPs or similar companies that aren't already caught by the legislation.
If Intervolve were declared, the recommendation to store IP allocation data and NetFlow data as well as filing a Data Retention plan is appropriate. Data retention plans are subject to approval by the Communications Access Co-ordinator, see details below.
Creating a data retention plan
The requirements for the specifications of the plan are laid out in 187E of the legislation. The information required to be included in the plan is as follows:

*         The current practices for keeping, and ensuring the confidentiality of information
*         The details of the interim arrangements proposed
*         The date by which the service provider will comply with 187A (the initial obligation to store data)
*         Any relevant services that the plan does not cover
*         Contact details of the officers or employees of the service provider in relation to the plan
The plan is subject to the approval of the Communications Access Co-ordinator, who will take into account relevant factors. These are laid out in s 187F. The relevant factors include the following (this is not an exhaustive list):

*         Desirability of achieving compliance with 187A as soon as practicable
*         The extent to which the plan would reduce regulatory burdens imposed
*         Whether the service provider is already contravening 187A
 *         Interests of law enforcement
Cost
It is difficult to determine the cost of storing the metadata. However, there will be some government assistance over the first 3 years for upfront capital costs. PwC was engaged in order to estimate costs, and have quoted that the upfront cost of the entire scheme to be between $188.8 million and $319.1 million. The Government has announced $131.3 million in assistance.
In his second reading speech, the Attorney-General referenced PwC's quote that the average cost per customer will be between $1.83 and $6.12 per annum over 10 years, the median price being $3.98. Whilst extremely broad, this may be somewhat helpful for determining costs if Intervolve were declared under 3A and taking into account Government assistance.

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It's a good thing we're in discussions with PWC (and no, this research/review wasn't performed by PWC, this was a fully independent review)! I'll let you know more if we hear any other alternate information that provides updates to the ones we've received to date.

Hope this helps as it seems no one has been doing their research in terms of content service providers and hosting service providers, so I feel I need to represent the SMB minority groups (including my own clients) as it doesn't seem we have anyone looking out for us, I've been sitting waiting to see if anyone else comes to a similar conclusion in a review of the laws for a couple of months and thought it best to let you guys know at this stage since nobody has said anything in this regard. If you disagree, please respond with the analysis of the law stating the reasons why you disagree. I'll stand corrected once someone show me otherwise. Until then, this is the review I've received.

Would also love to hear your take on laws and technology ideas that need improvement across all business areas, if you have any comments or improvements that you feel government could make simply email these in return in a concise format that specifies what you feel the governement requires to improve, your experience with problem legislation that requires improvement as I'll take it back to my group of friends and advisors for careful analysis and consideration. (Just FYI - The reason for this request is that we're currently in internal discussions funding a service for the group of the Australian Hosting Industry and Content Service Providers to ensure we provide some framework to enable working together and safeguarding our kids futures, that's more important for me than just making additional profit).

I already pay for my independent law reviews from various firms and perform my own research and want to ensure that we can all work together to keep our money within Australia, supporting our citizens. Would really love to hear from you with any suggestions / comments. PS, who's done a thorough GST taxation analysis in regards to the complicated charging of GST for international clients? Once ATO are able to complete a private ruling, I'll be happy to share this with each of you.

Looking forward to your input.

Kind Regards,

Chris Macko
Managing Director
Interhost Pacific Pty Ltd t/a Intervolve

Support Phone   1300 664 574 / +61 8 8260 4237
Sales Phone     1300 664 574
Accounts Phone  +61 8 8260 4237
Office Fax      +61 8 8260 4312

Sales Email     sales at intervolve.com.au<mailto:sales at intervolve.com.au>
Support Email   support at intervolve.com.au<mailto:support at intervolve.com.au>
Accounts Email  accounts at intervolve.com.au <mailto:accounts at intervolve.com.au>

Website www.intervolve.com.au<http://www.intervolve.com.au/>


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