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

Wed Jun 17 02:07:51 EST 2015

Paul,
Agree for the most part, only:

1 - Dark fibre isn't covered. If it's not lit, there's no EMF.

2 - MPLS isn't covered. The immediate circle exclusion of 187B(1)(a)(i)
will apply unless you're doing inter carrier.

3 - At layers above IP (email/web/voip), whether this is a communication,
or the contents of a communication, is one for the lawyers to sort out.
There are going to be some big lunches.

4 - Switching per the 1997 Telco Act is both a communication (between a
person and a person), and 2 communications (between a thing and a thing)
(see definition of communication in section 7 of 1997 Telco Act)

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

Paul Wilkins

On 17 June 2015 at 01:35, Paul Brooks <pbrooks-ausnog at layer10.com.au> wrote:

>  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>
> 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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