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

[Justin Clacherty]

No.

You have to meet ALL of 187A(3) (a), (b), and (c).

(a) means you're service provides communications over wire and/or wireless
(b) you have to be either a carrier (very specific meaning), an ISP 
(also clearly outlined), or some other declared service (there are none 
at the moment)
(c) you have to own the infrastructure in Australia which provides the 
service

None of this is related to IP in any way shape or form.

Justin.


On 17/06/2015 12:48 AM, Paul Wilkins wrote:
> 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 
> <mailto: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 <mailto: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
>>     <mailto: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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