Update 9.55pm: Wikileaks has published a more up-to-date copy of the ACMA blacklist, current as of the 18 March. This list includes abortiontv, wikileaks itself and Philip Nitschke's Poison Pill Handbook as well as a similar smattering of legal material and innocent sites.

The leaking of the ACMA blacklist as reported in the Sydney Morning Herald yesterday and commented on by EFA has provoked a lot of interest and we have received many questions from the public and journalists. Here are a few more comments on the revelation of the blacklist.

I'll address the authenticity of the list in a moment, but the question is almost irrelevant for a couple of reasons, First, a leak of the blacklist is inevitable once it is distributed to every ISP in the country. It may happen tomorrow or a month from now, but the leak will occur and the contents will not be substantially different from the list we have seen on Wikileaks.

The leak has clearly demonstrated that the Government's rhetoric about child-abuse and "ultra-violent" material on the list has not been telling the whole story. We already knew that the scope of the list was much wider than that - R-rated material has always been on the list - but the inclusion of many online gambling sites and legitimate Australian businesses has surprised many people. People are now realising that the list could affect sites they themselves visit, that controversial material and politically sensitive material will make the list, and that mistakes are bound to be made.

One of the (many) ways that censoring the internet differs from, say, the censorship of movies, is that ordinary Australian individuals and businesses are affected directly. It's not that far-fetched to imagine that an Australian retailer could have their website defaced; a complaint is filed either maliciously or with good intentions; and they find themselves on a secret blacklist with no way of seeking redress. All they would know is that nobody in Australia was able to access their web site any more, and that they were losing business. Additions to the list are not subject to appeal, unlike censorship in other media.

Is this the real ACMA blacklist?

The list, as published on Wikileaks, is not likely to be an exact copy of the ACMA blacklist at that time in 2008, as it contains more items than ACMA reported being on the list then. The Minister is no doubt correct in his denials that this is the ACMA list. It is possible, however, that the list is a superset of the ACMA list, with a few additions either from a filter vendor or from previous editions of the blacklist.

The list includes information on the dates in which banned URLs were added. These numbers track very closely with the numbers of RC sites reported by ACMA in the same periods. We have also had reports that a list labeled "ACMA" can be extracted from one of the approved filtering products who receive the blacklist and that this matches the list leaked. Therefore, it seems highly likely that the leaked document bears close resemblance to that maintained by ACMA.

In any case, the sites added to the leaked blacklist would almost certainly match ACMA's criteria for blacklisting. Time - and further leaks - will tell the whole story.

What criminal sanctions could apply for distributing the blacklist?

The Minister's rhetoric on this subject has been pretty uncompromising, with threats of police action and fines levelled at anyone who distributes the list. The proverbial genie is already out of the bottle, as the document is accessible on the public internet and cannot be expunged even if Wikileaks were persuaded to remove it (not a likely scenario). Any prosecution would therefore be an exercise in example-setting.

Any charges laid against the public would most likely be laid under statutes targeting the distribution of child-abuse material (as opposed to, say, a law safeguarding Government secrets). There are many uncertainties in this area of law. Definitions of child-abuse material can vary, and it is not entirely clear that a list of links might not qualify. Certainly, a prosecutor could argue that distributing the list constitutes "making available" such material.

Various defences could be offered, including that the dissemination of the information is in the public's benefit. Visiting sites on the list is clearly a dangerous affair given the risk some of the sites contain illegal material. Any would-be investigator disseminating the list is in the precarious position of not knowing for sure whether the list does contain links to illegal material but unable to investigate.

For a more authoritative and in-depth discussion see Nic Suzor's article Criminal sanctions for distributing the (ACMA?) blacklist.

In any case, until these uncertainties are clarified, publishing the list is not to be recommended. Potential penalties include up to 10 years imprisonment. Sadly, this does put a chilling effect on the public's ability to have an informed and robust discussion about the list and hence, the internet censorship policy.


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