Electronic Frontiers Australia (Inc.)

Response to the Draft NSW bill to censor the Internet


Author: Kimberley Heitman, B.Juris, Llb
Barrister and Solicitor ( W.A.)
Chairperson, E.F.A.

17th June 1996

Summary of Response by EFA

  1. The Draft Bill is technically incompetent.
  2. The Draft Bill errs in creating offences of transmission.
  3. The Draft Bill criminalises innocent conduct.
  4. The Draft Bill is unnecessary.
  5. The Draft Bill will fail in its objectives.
  6. The Draft Bill is unenforceable.
  7. The Draft Bill must be rejected outright.

Background

The Draft Bill prepared by the NSW government as a State Bill and a proposed Australian standard is a profoundly flawed document. As a response to the challenges of policing the Internet it fails, not by being too stringent, but in being too ignorant. It follows the misguided path that was set when the State and Commonwealth Attorneys-General decided to adopt the policy suggested by the Department of Communication of the Arts July 1995 report - without waiting for the closing date for submissions by the online services industry and the public, let alone first reading those submissions.

Electronic Frontiers Australia is not alone in rejecting this Bill - it and the DCA report that inspired it have been rejected by every computer user group, Internet organisation and service provider in the nation, from Telstra to Microsoft, from universities to users. The EFA web page, at http://www.efa.org.au, contains numerous articles and links to expert opinions that are, to date, unchallenged by Mr Shaw or others. It is to the discredit of Mr Shaw and the NSW government that opponents of a bad law have been smeared as condoning paedophilia and crime. Sensible people know that child pornography is not "free speech", and Mr Shaw knows that obtaining it through the Internet is already illegal in NSW and elsewhere.

EFA members are parents, educators, lawyers and law-abiding citizens. We do not condone criminal behaviour on the Internet. What Mr Shaw's bill does not do is make any impact on child pornography - that is already illegal and the bill may make cryptography of messages routine whereas it is rare at present. Police confirm this will in fact be more of a threat under foolish legislation such as this. Mr Shaw should admit that his bill criminalises M-rated and R-Rated material in the name of a "threat" to children of child pornography. It is a phoney crisis, and a phoney response.

However, the bill would threaten to destroy Australia's links with the Internet, by forcing online service providers to close down rather than risk prosecution by a legal system gone mad. This bill makes it an offence to receive "objectionable material" that has never been classified as such, whether received intentionally or not. This bill criminalises text as if it were a broadcast movie, criminalises private email as if it were a freeway billboard and forces service providers to spy on their users despite the fact it is impossible to monitor all users all the time, and difficult to monitor one user most of the time.

In a cynical attempt to pass the buck, the bill foists onto the on-line services industry the task of making this legislation work through adopting government-sponsored "industry codes of practice". If this bill is passed, there will be no on-line services remaining in NSW to agree to such a "code of practice", in this bill a euphemism for regulations. The bill makes text classifiable as if a movie - a sentence may turn a message into "adults-only" material subject to prosecution. Already Australia's links to the Internet Relay Chat at the universities of Wollongong and Sydney - staffed by volunteers using borrowed equipment - are under threat because the universities cannot risk being prosecuted every time one of IRC's millions of users decides to swear.

This is a bill which would ban conversation in a crowd ; games if one spectator abused the referee ; a library with one indecent book - a bill which would close a newspaper for a single classified advertisement. As the NSW government moves to destroy Australia's links to the Internet, perhaps it might reflect on its place in history along with the most notorious vandals and book-burners. As the Perth "The West Australian" editorialised on June 17, 1996 : "The value of the Internet is its freedom from official interference. To impose censorship because a small part of its content might be pornographic would destroy its essence - like razing a bookshop in case it contains an indecent book."

It is not EFA's task to rewrite this ridiculous legislation into something workable. The presumed facts driving this bill were disproved by EFA and others months ago. Every public hearing conducted by State and Federal government has been told, plainly and simply:

  1. The Internet interprets censorship as damage and routes around it.
  2. The Internet deals with abuses more efficiently than the law.
  3. The abuses cited as reasons for censorship are uniformly illegal now.

However, EFA is obliged to comment on the only copy of the draft legislation that has been made available. It is unseemly arrogance of the NSW government not to release the bill for public comment, particularly as it is being touted as a national standard. EFA has no faith whatsoever in the parliamentary process finding the technical and logical faults in this bill - quite simply the on-line service industry has told State and Commonwealth governments the plain facts before and has been ignored.

If Mr Shaw or others have a better bill ... let's see it. Expose this work to the scrutiny of those who make the Internet work in Australia, and those who know it well enough to comment.

Commentary

The bill commences with a show-pony appeal to consensus, despite the fact that the NSW government did not consult with the industry before drafting the bill, nor did it seek an industry code of practice to be in operation before placing it as a key part in this clumsy censorship regime.

The bill will fail both these tests. The offences created are either designed to prosecute subject-matter already proscribed (and are therefore unnecessary) or to criminalise "transmission" of material presently legal. Whenever asked, Mr Shaw refers to child pornography as being a classic example of "objectionable material" and "material that is unsuitable for minors", but the bill criminalises controversial, not objectionable material. Objectionable material may be prosecuted under existing law.

The industry will not accept a code of practice written by a computer-illiterate bureaucrat, and has no interest in going through the tortuous process of establishing an industry position when adherence to a code of practice is not a straightforward defence to a transmission charge.

Even the very few cable-television proprietors have to date found unanimous adoption of an industry code of practice to be elusive - how much more so the hundreds of large and small service providers dotted around the nation. Further , cable-television proprietors are actually content-providers , whereas on-line service providers are not. Even if on-line service providers were unanimous in agreeing what constituted good practice , it would not affect the content on the Internet because the content is provided by users, not service providers.

A code of practice involves consultation within and with the online services industry and is perhaps a first step towards addressing issues of access - not a mere sop to the industry that will follow the passage of a bad law as an afterthought.

The bill casually equates data on the Internet with the sorts of commercial publications classified under existing Federal law. EFA would query why the NSW government has not waited for the Australian Broadcasting Authority to report as to whether classification of Internet content is desirable, achievable or workable.

But what is "material" - a single word, a single page, a single picture? Censorship of a literary work or a movie is a subjective exercise in which an informed and educated Board views the material in its whole context. What is the "classification" of a ribald joke or an offensive remark, and why should every reader of those be liable to prosecution ?

Much more thought is needed into what Internet data is being proscribed, and what analogy to existing classification regimes is appropriate. To rate the Internet by reference to movies or publications is not always appropriate , and EFA notes that the ABA has not yet reported on this issue.

The Internet is not a broadcast medium for the passive entertainment of children - it is a library of tremendous depth and variety, including a small percentage of material that will be unsuitable for persons of any age, some material unsuitable for children and most material being of general acceptability. The Internet is also a community of tens of millions of people around the world - as Dalzell says: "a world-wide conversation". The censorship of the conversational aspects of the Internet would be even a grosser invasion of privacy than the dismantling of the Internet's library resources.

Data on the Internet is text, pictures, sounds, movies, video and radio ... and with increasing incidence of telephone and videophone services. This bill would collapse as soon as technology marches on a few steps. It addresses issues revolving around pornography databases, which are rare on the Internet due to bandwidth congestion, while ignoring the broadband interactive services available now to cable subscribers and soon to all Australian homes.

It is incredible that this bill would criminalise a private email message between consenting adults on the same basis as a broadcast to schoolchildren, and it is not sufficient for Mr Shaw to opine that victimless crimes will not be reported. A bad law is a bad law.

Come now, is the Internet to be an under-15 medium, when almost no Internet users are below that age ? Any survey would establish that there are very few children on the Internet other than those using their parents' accounts in their parents' homes. This bill affects adults behaving legally.

No service provider can be expected to take on the task of rating every byte sent through his or her system, nor guess how a sound file might be rated as if a publication, or a picture as if a movie.

The Internet has tools to filter content, including PICS-type standards and "Surfwatch"-style filter software for parents. These tools promote choice and flexibility, and are actually capable of achieving results in protecting children from unwittingly receiving controversial material. These tools will change and adapt, evolve and be replaced, as time passes. The development and promotion of these tools, and their continued effectiveness, will not be promoted by being made compulsory.

So an on-line service is defined by "transmission", and later on "transmit" is defined as "send or receive by means of an on-line service". One of these definitions would be better grounded in reality, probably both.

Firstly, an on-line service is merely an on-ramp to the Internet. There are a few on-line services that provide pornography to adults with a credit card, and they are physically located in the Northern Territory and the A.C.T. . They are very few compared with the number in jurisdictions outside Australia , which can be as easily accessed and at no greater expense than an Australian site. An ISP in Australia cannot technically filter requests from Australians to every such site.

Any transmission offence aimed at the ISP is merely "shooting the messenger". The ISP can be prosecuted under State laws or under section 85ZE of the Commonwealth Crimes Act for any abusive behaviour right now.

This bill prosecutes ISPs for the behaviour of a content provider anywhere in the world making data available direct to a NSW user or vice-versa. If an ISP could monitor, screen or filter all users' data (and please, Mr Shaw, find out what a "firewall" is!) there might be some question as to a degree of personal culpability on the part of the ISP. However, whatever this foolish bill may deem to be the truth, an ISP is nothing more than a gateway to a world of information chosen by the user.

Secondly, "transmit" is a word that only makes sense in broadcast terminology. A web page is not "transmitted" when a user links to it, the original content provider does absolutely nothing to "send" it. The original content provider may be dead, it makes no difference to the availability of the web page on the hard drive of a distant computer. When data moves on the Internet is moves according to the way it is requested by the user ... much more a case of the user "pulling down" the data. Other data movements , such as mailing lists and news , are selected by the user and then received automatically without further need to select. Such lists therefore distribute data selected , but not specifically requested , by the user.

EFA told the DCA enquiry last year that "transmit" was an inappropriate term for the Internet. So too have many other industry submissions. If the bill is meant to criminalise sending data person-to-person, that is one thing. However, if a web page owner can be deemed to "transmit" data from a third party's computer to a NSW resident, thus creating an offence not known to the civilised world, what foreign ISP could possibly permit NSW systems to remain in contact ?

Now this is really foolish. No one who uses the Internet could imagine that to receive data on the Internet carries the same criminal responsibility or moral responsibility as to send it. When accessing data, labelling by the content provider is the only way a user can guess what is in it.

Further, as is unfortunately common in poorly-drafted legislation, there is no differentiation between material accessed or provided through email, file transfer, the world wide web, gopher services, search engines or telnet services. If a user does a search engine keyword search on the word "Kimberley", one may turn up data extracts of every conceivable type, including material from every classification. It is a sign of a want of understanding as to how an Internet user gets information that a keyword search of general application carries the same penalty as offensive behaviour. Attempts to remedy this with technology-specific legislation will be very difficult - anything available from an FTP site can be obtained by alternative methods such as ftpmail and gopher and web sites can be viewed by software other than web browsers.

The issue of parental control is crucial to an informed response to protecting children from being exposed to inappropriate material for their age. Rather than attempt to regulate the global Internet , the governments of Australia might instead look towards educating parents about the Internet , teaching children proper use of the Internet in schools and promoting the use of software filters and the importance of supervising children's use of the Internet.

Disclaimers are useless when dealing with minors, allegedly the users so much at risk. If an ISP can ask for a promise from users not to transmit material that might conceivably cause offence, is that to be a general defence of universal application ? After a decade of caselaw on that issue, it may be safe for service providers to re-enter NSW.

The ignorant author of this clause should be told that data in the Internet moves in small numbered packets and it is technically impossible for service providers to do this. In any event service providers will not do the States' spying for them ... they are in the business of providing their users with efficient, fast internet connections, not reading their users' private correspondence. The policing of the Internet required to the extent of imposing the NSW rule of law is a task which would exhaust the resources of the nation's police - the amount of data which passes through even a small ISP is massive.

Does the author of this clause mean "passwords", used routinely for online services since their inception? The rest of the bill makes provision of material unsuitable for a child to be an offence, what difference can it possibly make what password system is in place?

Alternatively, if he refers to the credit-card on-line services - all of them prohibit children's access already on the simple basis that a child is unlikely to have his or her own charge account.

The Internet is not a static medium. By the time a person has complained about a news article from Usenet, a comment in IRC or another user in a telnet site, the material or person involved is gone. Why should a service provider have to have a policy of "deleting material unsuitable for minors of any age" - even the broadcasting media are not dealt with so harshly. The requirement that a service provider in NSW provides only on-line services that are suitable for minors of any age will do nothing but oblige NSW service providers to move offshore, and for those in the rest of the world who fear prosecution to sever links with NSW.

There is no point in having a code of practice unless adherence to it is an ironclad defence to prosecution, and the NSW online services industry is not unanimous in what is reasonable practice. Many ISPs quite reasonably consider that banning under-18 users is unfairly discriminatory, discourages responsible parental controls and discourages the development of child-oriented Internet services. Some ISPs will resist licensing, and will do so with exactly the same ease that the Moscow Internet service providers resisted closure by the Communists. It only takes a phone call to reconnect to the Internet from a laptop computer, and there is absolutely nothing that the NSW government can do about this.

Then the Code has neither shield nor sword, and has no place in an Act of Parliament.

Of course, the proposed offences are the most objectionable aspects of this bill. They are all so vague and general, catching innocent behaviour whilst leaving the villains untouched. The NSW government must surely be aware that cryptography has reached such a level of sophistication that the NSW police service does not have the computer power to decrypt material encoded using public domain software. Such vague and all-encompassing prohibitions will encourage a proliferation of cryptography, resulting in the Internet becoming a coded medium for the first time. The more general the offence, the more innocent behaviour criminalised, the more the ordinary person will consider it prudent to encode communications against the police.

If a person sends Mr Shaw child pornography, there is nothing he or his service provider can do to stop it and both of them are liable for prosecution under this section. It is ridiculous not to distinguish between culpability for providing, requesting and receiving data.

Also , the "advertising" notion and the notion of "permitting" data to be transferred invites the criminalisation of mere references. One could have a web page that states "Hard core porn may be found by searching the Lycos database with specific keyword searches" - and such cautionary advice for concerned parents would be construed by this draft bill as a criminal offence.

"Reasonable" being interpreted, one hopes, by a person who knows how the Internet works. There are no industry standards - yet - for the rating and labelling of web pages, let alone Internet content generally. In any event,search engines work on keyword searches, not labels. Invariably it is not possible for a user to guess the classification of the data unless it is received ... by which time an offence is complete.

An ISP does not "permit" the Internet to be out there. An ISP can only be held responsible for content originating from his or her system and there is not any ISP in Australia that holds such material online. This is an offence that is unnecessary in the case of local content provision, and will cause injustice in the case of "permitting" a user to use the wider Internet, in case such material might be found.

If the NSW government is worried about an ISP "providing" porn to schools, it could remedy this in contract.

Again, "transmit" is a foolish notion in the context of an ISP's provision of access to a world library. The second limb of that clause invites one to believe that advertising to minors is a discrete and prevalent activity, a belief unsupported by evidence.

First come clean with what the NSW government would, or would not, accept as a code of practice for the on-line service industry. So far, there is only one finalised industry code in Australia, that of the WA Internet Association (http://www.waia.asn.au). How a defendant is going to "prove" ongoing compliance with a code of practice is going to make for interesting litigation if this shambles of a bill is passed. ISPs are not content providers , yet the draft bill makes them responsible for content. The content providers are users , and will neither be bound by a code of practice nor be able to avail themselves of the defence of complying with a code of practice.

The balance of provisions relating to specific types of material are subject to the same criticisms. Whatever the proscribed material, and whoever it is sent to, an on-line service provider cannot screen it from his or her users with any confidence that the efforts will be a defence to prosecution - especially when the burden of proof of defences is reversed throughout this bill.

Some suggestions have been made in media reports that the general provisions of the draft bill , which every online service provider cannot avoid breaching every day , will only be used and/or prosecuted in the most exceptional cases of undoubted criminality. EFA submits that this is improperly relying on the discretion of police and prosecutors to apply a bad law.

The unsuitability of using analogies with publications and movie censorship make the task of compliance even more impossible. A movie is a rated product, one "point-of-sale", cut to comply with the requirements of the Censorship Board more often than is publicised. A picture file on the Internet has a commodity value of nil, is published on thousands of computers simultaneously and accessible by careful design or sheer accident. The draft NSW bill does not distinguish between the wide variety of scenarios that the Internet can encompass and for that fundamental reason it will fail.

EFA acknowledges that supporting the Internet against bad laws such as this invites the insult that our membership is anti-censorship for its own sake. EFA has, from its inception, stated that its position is that the Internet should only be censored by laws of general application - so if it is not illegal to give a page torn from Playboy magazine to a 16 year old boy, it should not be illegal to have a digital copy of the same page on-line. The NSW draft bill criminalises the latter but not the former, and EFA opposes it solely for that reason. If X-rated videos may be legally purchased from the Federal Territories, EFA sees no reason why adults-only Internet services operating from those Territories should not trade on the Internet. The bill's assumption that NSW can make the Internet a G-rated place is Quixotic, but the public will not be advantaged when NSW on-line service providers close down.

Mr Shaw has claimed to have examined the responses from the Industry - why is there no evidence of this in the flawed bill referred-to above ? EFA calls upon the NSW government to consult with the industry and police, educators and computer professionals to define, prior to proceeding with legislation of any kind:

Regulation of the Internet has stymied every State and National government to date. It is not surprising that NSW has made such a mess of its first attempt, and in consultation with the industry there is going to be a great deal of common ground - the industry has devised much more useful internal checks and balances than a lawyer could conceive.

In the accompanying text "How to regulate the Internet" , some solutions to Internet abuse are presented - these solutions are not only available but they are already in place.

A copy of this response will be sent to each State and Federal Minister and Attorney-General involved in the censorship of the Internet.

Kimberley Heitman
Chairperson, EFA
[email protected]