[AusNOG] Legal Challenge To Meta Data Laws

[Mark Smith]

On 10 September 2015 at 10:13, Mark Newton <newton at atdot.dotat.org> wrote:
> On Sep 10, 2015, at 9:24 AM, Andrew Kitchen <a.kitchen at xi.com.au> wrote:
>
> 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.
>
>
> <dogue>Such wow, many Einstein, so law.</dogue>
>
> Who could possibly have described that before the bill even passed through
> the Parliament?
>
> I feel there is a viable legal challenge to these laws for ISP’s who offer
> web hosting and other services
>
>
> Buckley’s and none.
>
> On what basis would you challenge it? There is no restriction on the
> Parliament passing laws which have anticompetitive effect, there’s only a
> prohibition on businesses behaving in certain anticompetitive ways.
>

Actually, the NBN laws are specifically anticompetitive (as are others
such as the Australia Post ones). They specifically set up a monopoly
provider who has advantages that no other private company has:

- laws can easily be created in their favour

- they can borrow against the country's assets rather than just the company's

- the shareholders (i.e., tax payers) don't have a choice as to
whether to invest in it or not, and politicians' primary goal is to
get voted back in by doing things that voters will like, which will be
a priority over ensuring the government enterprises they create have
the best chance of business success

- which consequently means those shareholders have no choice but to
wear the consequences of bankruptcy if it occurs (case study:
https://en.wikipedia.org/wiki/State_Bank_of_South_Australia#1991_State_Bank_collapse
- "The bank's financial implosion in 1991 was one of the biggest
economic disasters to hit in the state.")





> If you didn’t want the Parliament to pass laws which had anticompetitive
> effect, you should have opposed the bill effectively before it passed.
> Plenty of us were highlighting this exact situation, you can’t say you
> weren’t warned.
>
> The other anticompetitive side effect of these laws, of course, is that
> Australian industry participants who must retain data are at a disadvantage
> with respect to foreign industry participants who don’t. I’d just love to
> see how you’d propose to address that in a high court action.
>
>   - mark
>
>
>
> _______________________________________________
> AusNOG mailing list
> AusNOG at lists.ausnog.net
> http://lists.ausnog.net/mailman/listinfo/ausnog
>