[AusNOG] Internet companies forced to block The Pirate Bay, bittorrent websites in Australia, Federal Court rules

[Paul Wilkins]

"314(3)(b)  failing agreement, determined by an arbitrator appointed by the
parties. If the parties fail to agree on the appointment of an arbitrator,
the ACMA is to appoint the arbitrator."


So an appeal against the ASIC direction would have need to been heard by an
ACMA appointee. Thus dragging out proceedings and keeping the lawyers in
cut lunches.


Kind regards


Paul Wilkins

On 21 December 2016 at 14:10, Mark Newton <newton at atdot.dotat.org> wrote:

> Section 314 applies “if a person is required to give help to an officer or
> authority of the Commonwealth, a State or a Territory as mentioned in
> subsection 313.”
>
> “The person must comply with the requirement on such terms and conditions
> as are:
> (a) agreed between … the person … the Commonwealth, the State or the
> Territory, as the case may be.”
>
> In the alternative, if there is no agreement, “The person must comply with
> the requirement on such terms and conditions as are … determined by an
> arbitrator appointed by the parties.”
>
> If the parties fail to agree on the appointment of an arbitrator, ACMA
> will appoint one.
>
> I’m having grave difficulty understanding how you can assert that
> 314(3)(b) pertains to ACMA. s314 as a whole applies to anyone providing law
> enforcement assistance under section 313, including the vacuous cockwombles
> at Telstra, Optus and Vodafone who decided that simply taking ASIC’s word
> for it was a good idea.
>
>   - mark
>
>
> On Dec 21, 2016, at 10:00 AM, Paul Wilkins <paulwilkins369 at gmail.com>
> wrote:
>
> Not to mention the direction came from ASIC, whereas 314(3)(b) pertains to
> the ACMA.
>
> Kind regards
>
> Paul Wilkins
>
> On 21 December 2016 at 09:56, Paul Wilkins <paulwilkins369 at gmail.com>
> wrote:
>
>> Whether or not it was stupid to seek arbitration is a a matter of
>> opinion. I think most would agree that where the ACMA have asked for an IP
>> block, there is no reason to assume an arbitrator will give you a better
>> outcome, whether the cost of arbitration is a legitimate use of the
>> company's funds, and there's the question of risk to the business if they
>> are dilatory in imposing an ACMA directive. I think it would be stupid to
>> assume such measures were imposed lightly, without running the consequences
>> past engineering and legal.
>>
>> Kind regards
>>
>> Paul Wilkins
>>
>> On 20 December 2016 at 23:05, Mark Newton <newton at atdot.dotat.org> wrote:
>>
>>> On 20 Dec 2016, at 1:18 PM, Paul Wilkins <paulwilkins369 at gmail.com>
>>> wrote:
>>>
>>>
>>> The ASIC case was interesting because the ISPs begged ASIC not to do
>>> this, but in that instance, the decision was ASIC's, and the ISPs had no
>>> choice.
>>>
>>>
>>> The ISPs actually did have a choice, and were under no obligation to
>>> provide ASIC with the assistance they requested.
>>>
>>> Which is one reason why only some ISPs accidentally blocked hundreds of
>>> thousands of websites.
>>>
>>> In particular, every ISP could have invoked section 314(3)(b), but most
>>> didn’t.
>>>
>>> Additionally, sections 313(3) and (4) only require that carriers or
>>> carriage service providers “give such help as is reasonably necessary”.
>>> It’s a stretch to say that collateral blocking of a quarter of a million
>>> websites is “reasonably necessary.”
>>>
>>> In retrospect, it wasn’t; as the various inquiries into the matter
>>> concluded. The service providers who listened to ASIC and said, “Yep,
>>> sounds reasonable, we’d better do it…” no doubt believed they were doing
>>> the right thing, but they were objectively wrong, and should have pushed
>>> back, as the law permitted (required) them to do. There are lessons there
>>> which almost certainly have not been learned.
>>>
>>> Various ISPs came out of that episode looking like a bunch of dickheads.
>>> To portray the result as inevitable because they “had no choice” is a
>>> pretty stupid rewriting of history, and a misunderstanding of the
>>> legislation that governs the industry that you choose to earn your living
>>> from.
>>>
>>> These laws MEAN something. The Parliament intended that ISPs would be
>>> able to kybosh unreasonable demands from law enforcement agencies: That’s
>>> what the legislation actually says. To behave as if those words were never
>>> enacted into law and ISPs have to do what they’re bloody-well told renders
>>> the Parliament’s legislated intent meaningless, and is *obviously *
>>> bullshit.
>>>
>>>
>>>   - mark
>>>
>>>
>>>
>>
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