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

Wed Jun 17 01:35:10 EST 2015

On 16/06/2015 11:25 PM, Paul Wilkins 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 think you might have, and it gets a bit hairy.

The type of service is important. The type of business is very important.

Note well that the definition of 'carry' is 'includes transmit, *switch* and receive'

If you are a licensed carrier, a carriage service provider, or an ISP, you are
in-scope IF you provide a relevant service. If you provide a carriage service - or you
resell someone else's carriage service - you are automatically a carriage service
provider - so focus on the services.

The words defining a relevant service are 'it is a service for carrying
communications, *or enabling communications to be carried*, by means of guided or
unguided electromagnetic energy or both'. The 'or enabling communications to be
carried' are important, because *they are different from the definition of 'carriage
service' in the Telco Act*. *And 'carry' includes 'switch'*.

Layer 1 services (and Layer 0 services - dark fibre) are definitely covered and
in-scope - they are services for carrying communications. The metadata might be fairly
slim and static, but the obligation is still there.
Transmission services, including DSL, leased-line etc, Layer 2 services, Layer 3
services, non-IP services like MPLS, IPX, X.25, ATM, Frame Relay etc are all in-scope
as they are services for carrying communications, even though they don't have anything
to do with IP addressing. It has nothing at all to do with IP addressing or IP capability.

Fairly straight-forward so far.

VoIP calls are 'communications'. Emails are 'communications'. A VoIP server or an
email server still 'enables communications to be carried by means....' in and out on
the links to/from the servers, even if the operator of the servers doesn't operate the
links. So these services appear to be in-scope as services too.

HOWEVER - the definition of 'carriage service' in the Telco Act only says 'service for
carrying communications by means of guided...etc' and doesn't include the 'or enable
communications to be carried' bit. Also, the Telco Act has a definition of 'electronic
messaging service provider' which is clearly intended to be something different from a
carriage service provider, and captures a pure email processing entity.

So, if you provide an email service ONLY, it would be in-scope - if you were a
licensed carrier, a CSP using the definition of the Telco Act, or an ISP. If you
aren't one of those three, then you may well be OK for now - until you are captured at
a later time by  187A(3)(b)(iii) 'of a kind for which a declaration under subsection
(3A) is in force' when they realise the loophole and the Minister declares its to be a
relevant service despite all this.

OK, reading back through all that - its complicated, I am not a lawyer either, and
while I like to think I'm relatively on top of all this, this is not expert opinion
and maybe you really should get a real legal expert opinion from someone with
sufficient insurance that if it turns out they interpret it differently from me or the
AGD, their insurance will cover your costs of complying even if your real legal expert
opinion also thought you didn't.

Paul.

>
> (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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