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

[Paul Wilkins]

Justin,
I agree with (a) (b) and (c). What's interesting to note is that if you
provide as a service, an IP on a CE to a member of the public (within the
commonwealth jurisdiction), then (a) (b) and (c) apply.

I'd be interested in a scenario where this is not the case.

(I am not a lawyer. This is not expert opinion)

Paul Wilkins

On 17 June 2015 at 00:58, Justin Clacherty <justin at redfish.com.au> wrote:

>  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> 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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>>> AusNOG at lists.ausnog.net
>>> http://lists.ausnog.net/mailman/listinfo/ausnog
>>>
>>>
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>
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