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TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979 - SECT 187A

Service providers must keep certain information and documents

             (1)  A person (a service provider ) who operates a service to which this Part applies (a relevant service ) must keep, or cause to be kept, in accordance with section 187BA and for the period specified in section 187C:

                     (a)  information of a kind specified in or under section 187AA; or

                     (b)  documents containing information of that kind;

relating to any communication carried by means of the service.

Note 1:       Subsection (3) sets out the services to which this Part applies.

Note 2:       Section 187B removes some service providers from the scope of this obligation, either completely or in relation to some services they operate.

Note 3:       Division 3 provides for exemptions from a service provider's obligations under this Part.

             (3)  This Part applies to a service if:

                     (a)  it is a service for carrying communications, or enabling communications to be carried, by means of guided or unguided electromagnetic energy or both; and

                     (b)  it is a service:

                              (i)  operated by a carrier; or

                             (ii)  operated by an internet service provider (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ); or

                            (iii)  of a kind for which a declaration under subsection (3A) is in force; and

                     (c)  the person operating the service owns or operates, in Australia, infrastructure that enables the provision of any of its relevant services;

but does not apply to a broadcasting service (within the meaning of the Broadcasting Services Act 1992 ).

          (3A)  The Minister may, by legislative instrument, declare a service to be a service to which this Part applies.

          (3B)  A declaration under subsection (3A):

                     (a)  comes into force when it is made, or on such later day as is specified in the declaration; and

                     (b)  ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force.

          (3C)  If a Bill is introduced into either House of the Parliament that includes an amendment of subsection (3), the Minister:

                     (a)  must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and

                     (b)  must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.

             (4)  This section does not require a service provider to keep, or cause to be kept:

                     (a)  information that is the contents or substance of a communication; or

Note:       This paragraph puts beyond doubt that service providers are not required to keep information about telecommunications content.

                     (b)  information that:

                              (i)  states an address to which a communication was sent on the internet, from a telecommunications device, using an internet access service provided by the service provider; and

                             (ii)  was obtained by the service provider only as a result of providing the service; or

Note:       This paragraph puts beyond doubt that service providers are not required to keep information about subscribers' web browsing history.

                     (c)  information to the extent that it relates to a communication that is being carried by means of another service:

                              (i)  that is of a kind referred to in paragraph (3)(a); and

                             (ii)  that is operated by another person using the relevant service operated by the service provider;

                            or a document to the extent that the document contains such information; or

Note:       This paragraph puts beyond doubt that service providers are not required to keep information or documents about communications that pass "over the top" of the underlying service they provide, and that are being carried by means of other services operated by other service providers.

                     (d)  information that the service provider is required to delete because of a determination made under section 99 of the Telecommunications Act 1997 , or a document to the extent that the document contains such information; or

                     (e)  information about the location of a telecommunications device that is not information used by the service provider in relation to the relevant service to which the device is connected.

             (5)  Without limiting subsection (1), for the purposes of this section:

                     (a)  an attempt to send a communication by means of a relevant service is taken to be the sending of a communication by means of the service, if the attempt results in:

                              (i)  a connection between the telecommunications device used in the attempt and another telecommunications device; or

                             (ii)  an attempted connection between the telecommunications device used in the attempt and another telecommunications device; or

                            (iii)  a conclusion being drawn, through the operation of the service, that a connection cannot be made between the telecommunications device used in the attempt and another telecommunications device; and

                     (b)  an untariffed communication by means of a relevant service is taken to be a communication by means of the service.

             (6)  To avoid doubt, if information that subsection (1) requires a service provider to keep in relation to a communication is not created by the operation of a relevant service, subsection (1) requires the service provider to use other means to create the information, or a document containing the information.



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