[AusNOG] Welcome to Metadata Retention

[Paul Wilkins]

The fundamental qualifier is whether you provide a 'carriage service', as
defined by the Telecommunications Act, 1997. (The Broadcasting Services Act
relies on the definition in the Telco Act).

*carriage service* means a service for carrying communications by means of
guided and/or unguided electromagnetic energy.

If you provide a service (or resell a service) for the termination of
cables or fiber, you're clearly within the scope of the bill.

If you don't touch the physical or data link layers, the bill may or may
not apply, subject to interpretation and legal argument. It's not clear if
a communication at the IP layer is to the opposite IP (which arguably
requires transmission by electromagnetic energy). Then again, IP doesn't
deal with electromagnetic radiation, so perhaps not, but I wouldn't think
this a strong argument.

Alternatively, if the communication is viewed as from the IP to the MAC,
then the communication is local and there is no transmission via
electromagnetic energy (except from what is local to the NIC chipset).
Assuming this interpretation, the IP<>IP conversation would be 'content' of
the MAC<>IP communication, and still remains outside the bill.

As I've said, the lawyers will have a lot of fun with this. I'm not a
lawyer and don't represent myself as a legal expert. If you need informed
opinion, consult a legal professional, or ask the advice of the Dep't of
Communications, who administer both the Telco Act, and the Broadcasting
Services Act.

Paul Wilkins
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