[AusNOG] Legal Challenge To Meta Data Laws

[Ross Wheeler]

>> It has nothing to do with an ability to identify and enforce the Act,
>> it has to do with the wording of the legislation.

> The CAC we hope makes their determinations based on the legislation

Hope, sure.... but rely??


> some here, like myself have been told Email must be retained regardless 
> of if your an ISP/Webhost if your storage is in Australia

Then they've been advised wrongly. Also, ISP != Webhost.
You can be an ISP without being a webost (although few are)
You can be a webhost withoug being an ISP (under the act)


> everyone will read it the way they want Mark, clearly like you do

Reading it "the way you want" doesn't necessarily make that interpretation 
right however.


> your opinion doesn't matter if it differs from the CACs, since they are 
> the governing body of this mess.

This is just plain wrong though.
They are not infallable, and certainly some of the information given by 
them (as reported in this and other forums) is manifestly WRONG.

The opinion of the AGD and/or the CAC are not LAW. It may well be some of 
their "bad calls" will need to be tested in the proper forum - that is, 
the court. Then, and only then will you have an answer you can bank on.

There remains before then (and more likely AFTER then), changes in 
legislation to close perceived loopholes, and/or for "the department" to 
declare certain companies or perhaps even classes of operators to be 
covered under the DR act - but until those declarations are made, opinions 
(pretty much anyones "opinion" - but especially those without legal 
training in the relevant fields) are just that - opinions.

Disagreeing with the AGD/CAC might be a "bold move", and is unlikely to 
win you any friends in the department - but if you have deep pockets and a 
strong conviction you're right and they're not, testing it in court 
remains the only path of certain resolution!

R.