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

Fri Aug 28 03:16:55 EST 2015

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

Hi Joel et al.,

Thanks for your reply, and everyone elses replies. We're continuing to research and provide justification in the way in which the research was proved, we'll post updates as we receive further information. I'm just surprised that it appears none of the big bodies and companies that represent our industry don't appear to have done a thorough analysis of any kind of the law, almost as if they expect people to roll over and subscribe to the new initiative. I like to review the laws fully before making my plans, and will continue to provide updates as I find new legislation impacting our industry.

I think it's important that we Aussie firms work together more closely to take on our internation competitors that rip out funds out of our economy and dump them elsewhere, you big boys, you know who I'm talking about. Shame on you all. Interesting reading some of the articles shaming some organisations that are organised in this possible 'espionage' against our local firms:

http://www.smh.com.au/business/island-allure-the-tax-secrets-of-big-business-20130524-2k6u6.html excerpts "As the details of Apple's complex tax minimisation strategies emerge, questions are being raised about the legitimacy of Australia's own company ownership structures and their heavy use of tax havens. BusinessDay can reveal that all but one of Australia's top 20 companies listed on the stock exchange have subsidiaries in low-tax or tax-free jurisdictions, including Hong Kong and Singapore. At least half have subsidiaries in tax havens such as Bermuda, Switzerland, Jersey and the British Virgin Islands. This includes Commonwealth Bank's Cayman Islands subsidiary. Telstra, which says it paid $1.8 billion in federal, state and local taxes last year, controls 20 subsidiaries across five remote island nations, including Jersey and Mauritius."

http://www.smh.com.au/business/the-economy/apple-google-microsoft-cop-tax-audit-20150408-1mgsma.html excerpts "Apple, Google and Microsoft have told the federal inquiry into corporate tax avoidance that they are being audited by the tax office for alleged tax avoidance. Fairfax Media has also learned that that Uber and Airbnb will face questioning by the Senate Economics References Committee in coming weeks. Google's tax strategies were no different to those of mining giants such as BHP and Rio, Google Australia managing director Maile Carnegie told the inquiry. The companies are also accused of channelling profits through low-tax or no tax jurisdictions such as Ireland and Bermuda, and using marketing hubs in Singapore, where the official corporate tax rate is 17 per cent, but where they can lower their tax rates further through a range of incentives. Google reported its 2013 Australian tax as $7 million, paid on a $46 million profit - a rate of 15 per cent. But this does not include an estimated $2 billion worth of income it earns through advertising locally on its lucrative search engine business - which are booked overseas."

http://www.abc.net.au/news/2012-05-23/feil-tax-evasion/4028038 excerpts "In Britain, Apple paid 10 million pounds on earnings of about 6 billion pounds. Amazon paid nothing after earning about 8 billion pounds over three years. A teacher earning $80,000 a year in Australia pays about 20 per cent in tax, or about 25 per cent of what Google paid when it earned about 10,000 times as much. Is there any way that this pittance from a global giant could be regarded as moral? It might be legal, but it isn't acceptable. That sounds good in our Ned Kelly society, but it certainly isn't just or moral. It's just legal. The AFR said that about $900 million of Google's $1.1 billion in revenue from Australia was billed from Ireland. If anyone can convince me that a school teacher on $80,000 should pay a quarter of the tax that Google pays in Australia on income of over a billion dollars, then I will know that I am living in Cloud Cuckoo Land. I know it's legal. Google told the AFR "Google complies fully with all tax rules in all countries in which it operates, including in Australia". I don't doubt that's true. Too much money is at stake for it to be wrong. We need to rethink transfer pricing and the internet and the tax black hole. It seems potentially about as big as a black hole in space."

http://www.businessinsider.com.au/apple-microsoft-avoids-taxes-loopholes-irs-2013-1 excerpts "The Senate investigation found that Microsoft reduced its 2011 federal tax bill by a whopping $2.43 billion - or 44 per cent - by using a wide, international network of controlled foreign corporations and the exploitation of various loopholes in the U.S. corporate tax code. According to Microsoft, the company paid $3.11 billion in federal taxes in 2011. According to the full Senate report, Microsoft Corp does 85 per cent of its research and development in the United States. Of its 94,000 employees, 36,000 are in product R&D. The company had reported revenues of $69 billion, but with a federal tax liability of $3.11 billion only paid an effective federal tax rate of 4.5 per cent. That's much lower than the top statutory rate of 35 per cent for corporations."

It'd be nice to receive international companies support rather than attacking competition that is intended to disrupt and damage our good businesses that choose to operate cleanly providing taxes to the local economy, we also don't quite have the same buying power or international firms with lower interest rates and corporate tax avoidance strategies. It'd be nice for the government to even up the playing field, I thought they were meant to be helping us not giving international firms an unfair advantage? Why isn't the ACCC getting involved in a complete review and implementing policies to even up the playing field, or why aren't we as an industry not requesting a royal commission into the matter?

These silly politicians are really poor at creating money making initiatives that make Australia more income revenues in creative ways, and it appears everything is solved with taxes rather than innovative ideas that move our country forward. Perhaps the government should move to creating innovative apps? Who is that idiot at the top of our government, in my opinion? I don't know any business owners around me that feel like he represents us, how can he be so out of touch with public sentiment? What dodo's does he have reporting to him? It feels if he and his party is working against our businesses, rather than supporting us in growing our economy and innovating the country, when was the last serious great decision that the government made, it's been poor efforts since the days of Peter Costello and John Howard, and it seems both Liberal and Labor are as bad as each other, with the other minority parties appearing to be still all about themselves and their own agendas rather than representing each and every citizen of Australia.

How do we go about requesting a royal commission over the issue? Perhaps my lawyers can help in that regard.... Perhaps not, at least I can ask them and see what they say.

Nope, not at AUSNOG, working hard on developing best in breed software products that will help us all in our businesses and lives, the life of a web developer / programmer turned hosting provider, hey? Once a programmer, always a programmer. Can never get too far away from a keyboard :-)    Have fun at Ausnog! Hope to make it and see you guys there next year.

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/>

This email contains information that is confidential to the intended recipient. It may also contain information, which is subject to legal privilege. If you are not the intended recipient, you must not use, pass on or copy this message. We also ask that you notify the sender by email or telephone and destroy the original message. Thank you.

Quote of the moment: "Life isn't about waiting for the storm to pass. It's about learning to dance in the rain." - Vivian Greene

________________________________
From: Zone Networks - Joel [mailto:joel at zonenetworks.com.au]
Sent: Thursday, 27 August 2015 8:01 AM
To: Chris Macko
Subject: RE: [AusNOG] LAW REVIEW - Data Retention for Content Service Providers and Hosting Service Providers

Hi Chris

Thanks for sharing this

I am no expert ...

but to my knowledge Web hosts fall under carriage service provider hence we need to do a DRIP

Happy to be corrected.

If you are going to AUSNOG maybe you can go to the Data Retention talk and ask the AGD guys based on your research and findings ?

Regards
Joel

From: AusNOG [mailto:ausnog-bounces at lists.ausnog.net] On Behalf Of Chris Macko
Sent: Thursday, 27 August 2015 2:23 AM
To: 'ausnog at lists.ausnog.net'
Cc: Intervolve Support
Subject: [AusNOG] LAW REVIEW - Data Retention for Content Service Providers and Hosting Service Providers

[cid:9AE8E036646FA941B91B60672FDD7062 at interhost.local]<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;

----- QUOTE -----

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.

----- END QUOTE -----

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/>

This email contains information that is confidential to the intended recipient. It may also contain information, which is subject to legal privilege. If you are not the intended recipient, you must not use, pass on or copy this message. We also ask that you notify the sender by email or telephone and destroy the original message. Thank you.

Quote of the moment: "Life isn't about waiting for the storm to pass. It's about learning to dance in the rain." - Vivian Greene

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