[AusNOG] From the AGD - Data Retention - Starts October 15 2015
Paul Brooks
pbrooks-ausnog at layer10.com.au
Wed Jun 17 03:25:09 EST 2015
I guess I'll have to disagree with you on these, I admire your certainty. Please let
me know what the CAC says about it.
On 17/06/2015 2:07 AM, Paul Wilkins wrote:
> Paul,
> Agree for the most part, only:
>
> 1 - Dark fibre isn't covered. If it's not lit, there's no EMF.
Dark fibre 'enables communications to be carried by means of EMF'. When your customer
lights it up, theres EMF. You can't tell if its lit or not, and the metadata required
doesn't change whether or not its lit. It may be moot point, you can probably get an
exemption for dark fibre as the metadata is boring and static.
>
> 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.
Nope - AGD has already determined they are. Not the contents of course - but the SIP
headers, SMTP/POP3/IMAP headers are data about communications. We're still debating
them about web, since web-browsing history is explicitly excluded, but not very well.
The lawyers won't 'sort it out' over lunches, they'll try to do it when it gets to
court, while you try to explain to them what a 'packet' is - and I don't want to be
the test-case while they try.
>
> 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)
and your point is? communications between a thing and a thing is still communications,
and within scope.
>
> (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
> <mailto: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
>> <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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