[AusNOG] From the AGD - Data Retention - Starts October 15 2015

[Mark Newton]

The Act doesn't care about IP, nor does it pay the slightest bit of attention to protocol layers. It doesn't even care whether you provide Internet access: you could be delivering IPX WAN or SNA or Banyan Vines or a remote ISDN PABX for all AGD cares.

The Act already has a clear "demarc", in Section 4, which defines Carriage Service Provider.

Are you getting legal advice in parallel with trying to speculate about this on ausnog?

   - mark


On 16 Jun 2015, at 11:25 pm, Paul Wilkins <paulwilkins369 at gmail.com> wrote:
> 
> Paul,
> 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.
> 
> 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?
> 
> (I am not a lawyer, this is not expert opinion)
> 
> Paul Wilkins
> 
>> On 16 June 2015 at 22:13, Paul Brooks <pbrooks-ausnog at layer10.com.au> wrote:
>>> On 16/06/2015 3:30 PM, Mike Everest wrote:
>>> Hi Paul, all,
>>> 
>>>  
>>> 
>>> 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).
>>> 
>>>  
>>> 
>>> 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 ;-)
>>> 
>> NO NO NO! To both of you!
>> 
>> Being a carrier has NOTHING to do with providing IP addresses, or services.
>> 
>> 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.
>> 
>> 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.
>> 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.
>> 
>> 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.
>> 
>> Paul.
>> 
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> 
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