Sunday, 30 May 2010

How did I miss that

Ok, I am working on http://aaisp.net.uk/dea-ioc.html now...

However, something I missed. One of the things I have harped on about is that whilst internet service provider and subscriber are defined, communications provider is not defined.

This is quite an important term, as you are not a subscriber if you take service as a communications provider. And if you are not a subscriber then the provider is not an internet service provider.

communications provider means a person who (within the meaning of section 32(4)) provides an electronic communications network or an electronic communications service;

Note that this is operating a network or a service. So just operating a network is sufficient to make you communications provider.

electronic communications network and electronic communications service have the meanings given by section 32;

And section 32 says:-

(1) In this Act electronic communications network means
(a) a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and
(b) such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals
(i) apparatus comprised in the system;
(ii) apparatus used for the switching or routing of the signals; and
(iii) software and stored data.

Better still...
32(4) In this Act—
(a) references to the provision of an electronic communications network include references to its establishment, maintenance or operation;

This means if you operate a network which could just be a DSL router, you are not a subscriber. Err?!?

4 comments:

  1. I also think someone doesn't understand his physics. Good luck building a system that uses electricity but not magnetism, or vice versa. :-)

    The wording also seems to exempt ultrasonic communications, unless the electricity used to drive the piezoelectric element is enough to make it count.

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  2. Some people question "provider" considering you have to "provide" something to someone (even if not the public), but the definition is very clear (by reference to 32(4)) that they mean "provide" to include "establish", "maintain" or "operate". So just "operating" is good enough to be a "provider".

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  3. Courts can (and often do) take a common sense view on interpretation and can refer to Parliaments intention when interpreting law. Should you wish to use it as a defence, I would think a barrister is likely to advise that the court will interpret 'provider' in the usual way - a supplier of a something to someone else as part of a commercial transaction. Even on a technical point, provision only 'includes' operation. It isn't defined solely by there being an 'operation'.

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  4. The definition includes operation, is how I read it. If they had not gone to so much trouble to define "provision" I would have agreed. It is rather ironic that I am sure until DEA came in, OFCOM would have insisted on the widest definition of communications provider to put more people under its remit.

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