[AusNOG] Legal Challenge To Meta Data Laws

[Mark Smith]

On 10 September 2015 at 09:24, Andrew Kitchen <a.kitchen at xi.com.au> wrote:
>
> Hey Everyone
>
> Over the last few weeks there has been discussions on this forum about Content Service Providers having to keep data retention obligations.  We finally have a ruling from the AG yesterday in relation to this issue yesterday and if you are an ISP and you are offering these services then you must retain meta data.  However if you don’t meet the category outlined in the data retention legislation then you don’t have to….
>
> So in other words if you don’t offer ISP type services and all you do is offer Content based services such as Web Hosting etc then you don’t have data retention obligations.
>
> This is anti competitive and will force ISP to either wear the costs and maybe make a loss or forced to but up pricing which will make them not able to compete in the marketplace.
>

I don't think it is anti-competitive. If I understand your argument,

Webhost services only = no metadata costs
Webhost + ISP services = metadata costs

then I think this is the reality,

Webhost services only = no metadata costs
Webhost services = no metadata costs, ISP services = metadata costs


In other words, for your webhost services, you have no more additional
metadata costs than a pure webhost services competitor. They're not
competing with you for ISP services, so they don't have an unfair
advantage because they're not avoiding metadata costs for ISP services
because they're not selling ISP services.

If you can't disambiguate your webhost services costs from your ISP
services costs, then I think you should work on doing so, so that you
can then only attribute the metadata costs to the service of yours
that incurs them. I think that would be better spent time and money
than on lawyers.

(I'd like to see the metadata laws disappear too, but I'd also like to
see less court time and costs spent on cases that don't really have
any merit. There are better things to spend societys' time and money
on.)

I am not a lawyer of course, so you should see one to see if you still
think there is merit in your argument.

> I feel there is a viable legal challenge to these laws for ISP’s who offer web hosting and other services and I am looking for expressions of interest who would be interested in joining a possible class action against the government.  I would be looking at service providers who would join the challenge to assist in covering costs to
>
> A)  Taking out an injunction against the Federal Government to stop ISP having to comply with the meta data retention laws until a full hearing of the Federal Court can be heard
> B)  Full legal defence prepared and presented to the Federal Court
> C)  Each party responsible for costs – this means that we aren’t hit with government legal bills
>
> This whole legislation is very badly written, it gives an unfair advantage to non ISP based content providers and in my legal opinion would be winnable.
>
> So if anyone is interested in sharing the costs to challenge these very badly designed and executed laws then would be happy to hear from you.
>
> Regards
>
> Andrew Kitchen
>
>
>
>
> Andrew Kitchen | Business DevelopmentStrategist
> PO Box 3279, The Pines, Victoria, 3109
> T 1300 789 299 D 03 9909 3102 M 0449 561 461 F 03 8611 7946
> a.kitchen at xi.com.au | www.xi.com.au
>
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