[AusNOG] Welcome to Metadata Retention

Mon Mar 2 08:47:56 EST 2015

I know it covers me without any hesitation unfortunately so I’ve come to grips with the fact I just need to suck it up.  Storage is cheap, mirror ports are easy to implement and we’re small enough at the moment that it’s not going to cause me any major pain and we’ll likely never be asked for the data…

From: Damien Gardner Jnr [mailto:rendrag at rendrag.net]
Sent: Monday, 2 March 2015 8:43 AM
To: Nathan Brookfield
Cc: Paul Wilkins; ausnog at lists.ausnog.net
Subject: Re: [AusNOG] Welcome to Metadata Retention

Sorry, but I just don't agree.  The way I read it as it currently stands, I can basically ignore the legislation until someone definitively says I have to (i.e. the 'The minister may issue a determination specifically declaring a company to be a hosting provider').

It sounds like you WANT to have to collect metadata Nath ;)  Why are you arguing so hard to be covered by the new legislation??

On 2 March 2015 at 08:38, Nathan Brookfield <Nathan.Brookfield at simtronic.com.au<mailto:Nathan.Brookfield at simtronic.com.au>> wrote:
In the best case scenario they are leasing the ‘Hardware’ but that does not mean they are leasing the space, in the majority of cases they are going to be paying for a ‘service’ which you are providing on your own hardware (hosting/vps) and you ‘the hosting provider’ are leasing the space, not the end client.

I think on this argument you would need a REALLY good lawyer…..

Very different argument to the Megaport/PIPE issue.

From: Damien Gardner Jnr [mailto:rendrag at rendrag.net<mailto:rendrag at rendrag.net>]
Sent: Monday, 2 March 2015 8:33 AM
To: Nathan Brookfield
Cc: Paul Wilkins; ausnog at lists.ausnog.net<mailto:ausnog at lists.ausnog.net>

Subject: Re: [AusNOG] Welcome to Metadata Retention

But the customer is located within the facility? They're leasing hardware/space/etc from you, so they are your tenant - therefore they are located in the facility?

On 2 March 2015 at 08:26, Nathan Brookfield <Nathan.Brookfield at simtronic.com.au<mailto:Nathan.Brookfield at simtronic.com.au>> wrote:
But you are providing said (hosting/colo/dedi/vds) services in multiple data centres and the actual customer is not located within that facility, I think that one would be hard pressed to stand behind.

From: AusNOG [mailto:ausnog-bounces at lists.ausnog.net<mailto:ausnog-bounces at lists.ausnog.net>] On Behalf Of Damien Gardner Jnr
Sent: Monday, 2 March 2015 6:32 AM
To: Paul Wilkins
Cc: ausnog at lists.ausnog.net<mailto:ausnog at lists.ausnog.net>
Subject: Re: [AusNOG] Welcome to Metadata Retention

If you're going to quote the Carriage Service definition from the Telecommunications Act, you also need to note Section 89, the 'same premises' exclusion. This excludes services delivered inside the same building, which reads to me that provided you're only supplying internet services inside of Datacenters (which most hosting/colo/dedi/vds companies do), you're not providing carriage services, and thus aren't affected by this bill?

On 2 March 2015 at 02:51, Paul Wilkins <paulwilkins369 at gmail.com<mailto:paulwilkins369 at gmail.com>> wrote:
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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--

Damien Gardner Jnr
VK2TDG. Dip EE. GradIEAust
rendrag at rendrag.net<mailto:rendrag at rendrag.net> -  http://www.rendrag.net/
--
We rode on the winds of the rising storm,
 We ran to the sounds of thunder.
We danced among the lightning bolts,
 and tore the world asunder

--

Damien Gardner Jnr
VK2TDG. Dip EE. GradIEAust
rendrag at rendrag.net<mailto:rendrag at rendrag.net> -  http://www.rendrag.net/
--
We rode on the winds of the rising storm,
 We ran to the sounds of thunder.
We danced among the lightning bolts,
 and tore the world asunder

--

Damien Gardner Jnr
VK2TDG. Dip EE. GradIEAust
rendrag at rendrag.net<mailto:rendrag at rendrag.net> -  http://www.rendrag.net/
--
We rode on the winds of the rising storm,
 We ran to the sounds of thunder.
We danced among the lightning bolts,
 and tore the world asunder
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