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

[Paul Wilkins]

Mark,
The relevant section is 187A(3):

(3) This Part applies to a service if:
(a) it is a service for carrying communications, or enabling
communications to be carried, by means of guided or
unguided electromagnetic energy or both; and
(b) it is a service:
(i) operated by a carrier; or
(ii) operated by an internet service provider (within the
meaning of Schedule 5 to the Broadcasting Services Act
1992); or
(iii) of a kind for which a declaration under subsection (3A)
is in force; and
(c) the person operating the service owns or operates, in
Australia, infrastructure that enables the provision of any of
its relevant services;

Which means data link and network services. Which for IP means you put an
IP on the customer CE, or PSTN, you provide a number and send dial tone.

(I am not a lawyer, this is not expert opinion)

Paul Wilkins



On 17 June 2015 at 00:21, Mark Newton <newton at atdot.dotat.org> wrote:

> 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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