ABA Inquiry Submission

Ms Kaaren Koomen,
On-Line Services Investigation,
Australian Broadcasting Authority,
PO Box Q500,
Queen Victoria Building,
NSW 2000
via email [email protected]

Mr Kimberley Heitman,
Electronic Frontiers Australia (Inc)
PO Box 382,
North Adelaide,
SA 5006
via email [email protected]

A submission by Electronic Frontiers Australia (Incorporated in South Australia) to the Australian Broadcasting Authority investigation into the content of on-line services Issues Paper. EFA (Inc) is an organisation formed in 1994 to define, promote and defend the civil liberties of users and operators of networked systems. It advises on legal matters and policy issues in each State and Territory of Australia , and is associated with the American Electronic Frontiers Foundation and similar organisations around the world. For details on the EFA , see the web page at http://www.efa.org.au and the Usenet newsgroup aus.org.efa , or email to [email protected].

Summary of Submission

  1. Classification of the content of on-line services is unnecessary and in most instances impossible to police.

  2. It is fallacious to compare an interactive , global , multi-casting "network of networks" with other media , and consistency with classification of entertainment media is inappropriate.

  3. Existing laws and industry practice have effectively dealt with abuse of the Internet in Australia to date. Censorship laws in the States and Territories are untested as to constitutionality , and are an affront to freedom of speech. The proposed regulations set out in the Issues Paper are unlikely to achieve any desireable ends.

  4. The Issues Paper is technically naive and shows a poor knowledge of the on-line services industry and the technical considerations behind current practices. EFA proposes the Government reconsider the matters raised in consultation with the EFA , other interested groups and industry.

  5. A code of practice should be developed by the industry in consultation with government , not given the status of regulations for the licencing of on-line service providers.

  6. International consensus on censorship issues is unlikely , and already Government censorship of on-line services has been puritanical beyond community standards. The Internet ought not be censored by Government.

  7. It is inconsistent to consider classifying on-line services for the "protection" of children and also to consider requiring account holders to be over eighteen years. The Internet is an adult medium which can be suitable for minors supervised according to their age.


The purpose of the Issues Paper to "stimulate discussion on content issues" appears to nothing less than a proposal for censorship of a global network of networks by a solitary national government. The expressions as to "community standards" by the Minister leave no doubt that the Issues Paper is the precursor to widespread censorship of the Internet and Bulletin Boards. EFA contends that such censorship is wrong in principle and generally impossible in practice.

The initial consultation process was patchwork and lacked depth of investigation, as demonstrated by the failure of the Issues Paper to grasp important issues such as technical feasibility or effectiveness of the proposals, the diversity of community opinion as to censorship issues, the failure to consider the solitary Code of Practice established in Australia by the WA Internet Association (Inc) and realistic means of promoting Australian content. Many of the proposals and conclusions of the Issues Paper evidence a lack of understanding of on-line services and ignorance as to the demographics of the users of such services. There is no indication that the Issues Paper has consulted with industry as to the technical requirements of censorship or the financial effects of widespread regulation. As a response to a new industry , the Issues Paper has failed.

At least , the continuing investigations by the ABA must attempt to consult the many hundreds of commercial access providers and the tertiary institutions that provide the overwhelming majority of user accounts. However, even if access providers are satisfied with censorship of the Internet and Bulletin Boards , the ABA should acknowledge that the users of such services have come to expect a uncensored , adult medium, and will resist attempts by governments to interfere in their privacy and access to information.

The definition of an on-line service on Page 9 is a curious one , assuming a distinction between a "private network" operated by organisations and a "public telecommunications network". There are no "public" systems - all on-line services are provided only to registered members who have applied to join the system. "The public" does not have access to on-line services through tertiary institutions or commercial access providers - only government bodies such as public libraries provide such a service to the public.

EFA would suggest that a members-only on-line service , subject to rules of that service and most often restricted to persons over the age of 18 years , is in no need of censorship or classification of content whatsoever. Laws which presently exist against exploitative pornography, incitement to discrimination or crime, harrassment and defamation have been used in Courts successfully to prosecute abuses of on-line services. The remainder of activity by consenting adults in private members-only services is not a social problem requiring intervention by government. If sexually-explicit material is available , it is by definition available only to a consenting adult deliberately obtaining such material in the same manner as entering an adult bookstore.

EFA is unaware of any on-line service that permits information under its control of a sexually-explicit nature to be accessed by minors. For many years, proprietors of on-line services have insisted that access to "adult areas" is limited to adult subscribers. However , an Internet access provider must rely on its users not to make passworded accounts available to juvenile family members in circumstances where unrestricted access to explicit material is unsupervised. In many cases , such conduct is forbidden under the terms of the account conditions , or parents are advised to supervise family members' use of an adult's account - much the same as may be said of the providers of credit cards.

Bulletin Boards are typically single-computer systems , although many are now connected to the Internet and/or recieve automatically from the amateur BBS networks a nightly flow of email and file transfers from other Bulletin Boards. Regulation considered appropriate to control the access to information on a single-computer system controlled by a system operator is quite inappropriate to an Internet access provider - the latter being less of a source of data and much more like a gateway to the world at large. A BBS sysop has much greater control over what material is accessed by users of his or her system than an Internet access provider.

The reference to Usenet newsgroups on Page 10 as a source of "frank and explicit" discussion is transparently provocative and misleading by omission. There are tens of thousands of topic-based newsgroups, including such diverse topics as fan clubs , sports enthusiasts , support groups for sufferers of disease, ethnic and cultural groups , many technical computer professional and enthusiast groups , news of many kinds and creative writing , art and music. Usenet newsgroups reflect the world's diversity of viewpoints and interests , and are far more than "adult chat" areas. EFA would urge the ABA to consider the Usenet newsgroups separately from the other networks within the Internet for important technical reasons and in recognition of the tremendous resource of topical information they provide to the world.

It is curious that neither the Gopher or Telnet services , nor file transfers, have been considered in the Issues Paper. This either reflects an ignorance of these services , or a misunderstanding of their role within the Internet. If newsgroups , IRC chat and the World Wide Web were abolished overnight , all information therein could be obtained by Gopher, Telnet and file transfer protocols. As far as breaches of copyright and supply of pornographic material are concerned , by far the most prevalent sources are "ftp" file transfer sites. Few such sites are long-lived, owing to inevitable discovery due to bandwidth congestion.

The reference in the description of the World Wide Web to "publishers" commences a misconception that is a feature of the Issues Paper - that the Internet is an entertainment medium. On the contrary , most Web pages are produced by users or non-profit organisations for informational purposes, and have a very limited lifespan. Whilst there are many businesses offering sales support, mail-order and similar services on the Web , few are created by "publishers" to "present a wide range of content". It is highly significant that the OFLC informal search found the likelihood of on-line users being exposed to proscribed material was low - EFA would assert that searchers of the Web are in full control over what material is accessed , more so than any other part of the Internet.

The role of the ABA in investigating proprietary networks (Page 11) is unexplained , as the content of the commercial services mentioned would appear to give rise to no other concern than fraud - a matter adequately dealt with under the criminal laws of each State and Territory.

The Issues Paper suggests at page 12 a flow chart of the participants in the on-line services industry. With respect, the flow chart assumes in error that the Internet is analogous to a broadcasting service. It is assumed that content providers are different persons than the users of the Internet. In fact, the users of the Internet are the primary content providers and publishers of information. More particularly, in a multi-casting environment, there is an immediate and interactive response to content published by users by other users and consequently it is routine for numerous sites all around the world to be contributing to a conversation, provision of information or data base creation. The network infrastructure providers and the on-line access providers are most often passive conduits of information, mostly concerned with the technical aspects of "getting the mail through".

Consequently, to place any emphasis on the prosecution of content providers is to make the error of assuming that there is a sector of the Internet which provides information to a passive audience. In fact, the highly interactive nature of the Internet means that any user with the time to do so can be a content provider, often with a coverage and prominence of greater significance than a business offering services through the Internet. EFA urges the ABA to reconsider this basic point: that the users are the content providers. Businesses provide very little of the total volume of data on the Internet. The Internet is a multi-casting environment where some members are concerned with the technical aspects of delivery of information (access providers and service providers) and the remainder of the Internet is actually participating in the ebb and flow of information.

The Internet is not a broadcasting medium, it is necessary for a user to deliberately obtain information and the choice of that information and the country from which that information is obtained is entirely in the hands of the user.

Accordingly, the role of an on-line access provider is analogous to that of a postman or provider of a telephone service. For a fee, access providers will permit a user to obtain a passworded account. What the user chooses to do with that passworded account is not within the power of the access provider to view, let alone regulate. At page 13 it is stated in the Issues Paper "the ABA acknowledges that access providers may not be aware of all the material which passes through their systems". This is a lamentable understatement. The volume of Usenet newsgroups, the number of web pages which may be accessed and the number of Internet sites with file transfer abilities is larger than any number of employees of an access provider could possibly monitor. It is not possible to even map the Internet topography without the use of several months of computer time, by which time the Internet has grown a significant amount.

It is almost impossible for an access provider to monitor every users' choice of interaction with the Internet and it is strongly arguable that it is an invasion of privacy to attempt to do so. EFA is aware of circumstances where an access provider has informed the police of the contents of a user's personal email directory , giving rise to real concerns as to persons framed or entrapped by forgery of email names and details. It is a trivial matter to forge the address of email , and the Federal Evidence Act has erred considerably in making the "From:" field prima facie evidence of identity.

The trends described in pages 13 and following do not wholly accord with informed observation. For example , there are certainly "more than 130" access providers in Australia - there are over 200 in Sydney alone. EFA has noted that the BBS Task Force had not completed its investigations until , a decade after the development of BBSs , the role of the BBS as the principal on-line service provider was completely eclipsed by the Internet. It is quite likely that the Internet as it presently exists will in turn be eclipsed by broadband interactive services, and the classification of the material accessed from all around the world by every household thus connected will be even less practical than regulation of the Internet.

The "service trends" at page 18 are routine within the on-line services industry and have been for some time. Present trends of perhaps greater significence include :

At page 18, the Issues Paper turns to the regulation of on-line services and states that certain concerns were expressed to the ABA regarding the content of on-line services. Without stating other than the subject-matter of such concerns , it is unclear from the Issues Paper whether these concerns are founded on genuine examples or merely anecdotal or newspaper-generated urban myths. For example , there are certainly "bomb recipes" available on the Internet , routinely reprinted from books available in any public library and usually with safety instructions appended. Such information is not illegal in the print medium , and there is no reason to make it so in an adult environment such as the Internet.

Surely it is the use of such information , obtainable from many sources , rather than the publication of such information that is the proper subject-matter of legislation. Usenet newsgroups such as rec.arts.pyrotechnics have detailed instructions for the production of harmless explosives and attractive fireworks , with detailed safety instructions. This material is yet to have caused a single adverse effect in Australia , yet it has been published constantly for some years.

As to the concerns expressed, material which would be refused classification under the existing classification regime is already illegal. There is plenty of evidence that prosecutions under existing laws against child pornography rings and other profoundly undesirable activities are successful under existing legislation. Material which would be classified as restricted as unsuitable or harmful to children is a matter of much dispute. For example, it would be commonplace for a movie which dealt with drug themes, homosexuality, issues of warfare or similar "adult" themes to be certified as restricted. However, one must separate the subject matter which may be generally unsuitable or harmful to children from the actual content which may be of no harm whatsoever.

Equally, subject matter which may be otherwise innocuous may be unsuitable or harmful to a particular child. Given that the Senate Select Committee on this issue has recommended that no children have Internet accounts, it defies reason why the entirety of the Internet in this country must be made suitable for children. The Internet is a very valuable source of information on any number of controversial topics and the free discussion of sensitive topics in a mature and responsible way has been and would be compromised by restricting subject matter rather than particular content.

For example, a recent poorly-considered banning of certain Usenet newsgroups by the American Compuserve access provider had the outcome that by banning the word "breast", important and responsible support groups for breast-feeding and breast-cancer were inadvertently banned. Movie classification cannot be easily translated to the classification of up to a thousand different messages by different people throughout the world as posted in one newsgroup on a particular day. It should also be noted that community standards in Australia as to what is "unsuitable or harmful to children" vary widely, and standards vary even more so from country to country.

Even the Issues Paper was obliged to note that there are three kinds of classification (Publications, Films and Computer Games) in force at this time. The search for consistency in censorship is not advanced when depictions of nudity in those three areas would give rise to "Unrestricted" , "M-rated" and "Refused Classification" respectively. The ABA can scarcely expect Internet users (almost all of whom are adults) to accept censorship of nudity at the level of computer games , merely because the Internet is accessed by computer. Given that broadcast media and point-of-sale media is regulated to protect the public from being offended by adult material , it is strongly argued that an adult medium such as the Internet should be regulated at a level less than Publications since access to all material is by definition intentional - one must purchase a passworded account and then deliberately choose the material to view , read , hear or download.

EFA considers that to classify , for example , homosexuality issues as "R-Rated" , would be a terrible form of discrimination and in violation of the spirit of the recently-passed Privacy laws. The use of "R-Rated" classifications to suppress information regarding safe sex , contraception, abortion , sexuality issues , health issues and support groups for rape victims has been noted as a severe form of discrimination in other countries , yet it follows naturally from the transference of subject-matter-based classification standards from broadcast and point-of-sale media to the interactive Internet. a consumer issue.

"Refused classification" material of the kind described on Page 18 is an infinitesimal fraction of the data available on the Internet , and while it may be offensive there is no reason to shackle the whole of the Internet because of its infrequent availability. The Internet community has its own "community standards" , and it is quite common for violators of "nettiquette" to be reported to authorities or "mailbombed" for unsavoury or inconsiderate behaviour.

Racial or other discrimination on the Internet is usually best dealt with by robust and prompt rebuttal. However, anti-discrimination legislation applies as much on the Internet as in any other medium, and no special laws are required. Attempts by American cultural groups to ban particular forms of racist propoganda had quite a contrary effect as it seemed to both inspire more racist propoganda and also added respectability to the racists' arguments. Like Speakers' Corner the Internet is able to be used as a soapbox for any opinion. That is a strength, not a weakness, and it is quite often the case that so-called "flame wars" bring a tide of public opinion firmly against unsavoury or anti-social opinions.

Apart from concerns as to the privacy of financial transactions over the Internet, EFA does not consider that on-line services presently have the capacity to intrude into people's privacy or to become involved in the improper use or disclosure of personal information. In our view, only legislation which requires access providers to monitor users' activities for potential breaches of the law are likely to cause such problems.

The potential for defamatory material to be widely disseminated, or the potential for infringement of intellectual property rights are matters which are better left to the civil courts. If legislation is required, these matters should be the subject of specific legislation safeguarding access providers from being innocently liable for a content provider's choice of subject-matter. The case of Rindos v Hardwick in WA , in which defamation on the Usenet newsgroups was the subject of successful litigation by the injured pary , was fortunate for the industry in that the Plaintiff elected not to sue any of the access providers that would have been innocently displaying the defamatory material. Elsewhere in the nation, access providers have been threatened to be joined as defendants in defamation suits as "publishers" , and this is a real threat to the long-term health and survival of the on-line service industry.

Consumer interest and gender issues are best dealt with in the context of industry codes of conduct and public opinion. With all due respect, these are not issues which have been of any prominence in public debate so far. Gender issues are being campaigned by EFA through the EFA-WOMEN mailing list and it is premature for the government to become involved in what is a series of complex issues as to the presence (and absence) of women in cyberspace. In many respects , consumer issues are best left to the various Ministries of Fair Trading and the civil courts, under usual laws of contract and subject to the usual anti-discrimination legislation.

The perceived need to ensure that Australian content is available and promoted in an on-line environment to the same extent that it is in other media, is an absolute nonsense in the context of the Internet. The ABA must be aware that a web-page or an FTP site represents nothing more than hard drive space on a system administrator's computer. Whether people choose to access that information, or the extent to which the location of such information is widely publicised on the Internet, is a matter of user choice. Naturally, Australian access providers are as patriotic as anyone else, but it would be utter nonsense to suggest that an Australian access provider should provide files on a quota basis. If Australian content is to make a significant impact on the Internet, it will be through high quality rather than artificial quotas, as unlike with a broadcasting medium (and the failed attempt to promote Australian content through quotas on commercial radio songs is noted in passing) quotas are of no help at all when the user may choose at the touch of a button either an Australian site or a site from overseas.

If the Government wishes to seriously promote Australian content on the Internet, it ought not commence by so regulating or taxing access providers that they operate at a commercial disadvantage with the rest of the world.

The "informal search" referred to at page 19 which involved 27 hours of targeted servers searching must have been an unparalleled exercise in futility and tokenism. It is quite plain, though, that the cursory search described in appendix C demonstrates easily that inadvertent access to "refused classification" or "restricted classification" material by children is an urban myth rather than a reality. It is beyond doubt that sexually explicit material is popular on the Internet and consequently is available from service providers at a price, usually with the requirement that the purchaser certify that he or she is over the age of 18 years. This is also an area where the distinction between different parts of the Internet, namely the World-Wide-web and Usenet Newsgroups, is made on technical grounds.

A world wide web site exists in a "virtual" location, which can be moved at short notice. To ban a "physical" location, can be circumvented within minutes, rendering utterly useless any "refused access" site list. A web page can be copied in minutes and set up on another server, possibly by a different person than the original content provider. For example, the "Canadianizer" web page at http://www.io.org/~themaxx/canada/can.html allows a user to access that web page and thereby transfer to any other web page , utterly circumventing any Australian "refuse access" list. If that web page is placed on an Australian "refuse access" list , it can be moved to a different "virtual" location within minutes - and if any nation is minded to start "refuse access" lists , it is certain that there will be many such sites to choose from.

The Usenet newsgroups, represent a true multi-casting environment. Many access providers draw Usenet newsgroups from more than one news server whether interstate, overseas or local. As such, if one of those news servers ceases to carry particular Usenet newsgroups, it would be unnoticed for some time except for one reality of the Internet - censored newsgroups are cross-posted to other newsgroups. A recent example in the Compuserve banning instance was that all of the controversial newsgroups which had been banned would either be reconstituted under slightly different names (and then propagated within hours) or alternatively messages which would have been clearly marked in an appropriate newsgroup instead turned up in a totally inappropriate newsgroup. Quite literally, sexually explicit material banned from a newsgroup in which it is clearly labelled that sexually explicit material is contained therein will instead turn up in a general chat newsgroup or, quite conceivably, many thousand general chat newsgroups.

It should be acknowledged that with many thousands of newsgroups, it is not physically or technically possible for an access provider or any individual to read every message. Therefore, if controversial material is banned by newsgroup, it will be a dreadful task to search through every newsgroup to find where the controversial material is now being posted. As the creation of a newsgroup is a simple matter, and as a multi-casting environment permits any number of any number of cross-postings by any number of Internet users/content providers, the sensible course that has been established by the industry is to permit controversial newsgroups on the basis that it is better to have a clearly marked "red light district".

It is up to parents to install filtering software if they are concerned about children having access to the Usenet newsgroups. More plainly, since there are so many newsgroups, it is up to an individual user to determine which newsgroups he or she wishes to view. It is ultimately always a matter of choice as to whether a user chooses to access controversial material , let alone whether a parent permits a child to have unsupervised access to an adult's Internet account or credit cards.

Adults , however , will not countenance being treated as children. Already , with the passage of the American Communications Decency Act , offshore Internet accounts are being offered to the western world as a secure , private and uncensored alternative. For example , the recent post by an access provider from Anguilla - see http://online.offshore.com.ai . Restrictive legislation , futile as it will be to censor information , will nonetheless have the effect of encouraging Australians to obtain overseas accounts.

Existing legislation referred to at Page 19 and following demonstrates that while there is a pressing need to update existing legislation to match changing technology , there is no persuasive reason to drag down the Internet to the level of other media. For example , the Copyright Act needs amendment since neither ANSI artwork nor digital "photographs" (those not made using chemical photography at any stage) are presently capable of being intellectual property , whilst ASCII art is a recognised "literary work" and scanned photographs or video clips are.

As a "old technology" Act , tthe Broadcasting Services Act 1992 is quite an unreasonable analogy for the Internet. A broadcasting service involves a single company deciding to publish information over the airwaves or by cable to a passive audience as an entertainment medium. By contrast, the Internet is a multi-casting environment where every single user must determine what information he or she wishes to access or contribute to, and is a library resource and communication resource rather than entertainment. The role of government in "protecting" adults from accessing information as they choose (as opposed to passively watching television) is dubious in theory and impossible in fact.

EFA notes that the American CDA included a prohibition against publishing information on abortion on the Internet , equating it with child pornography as far as penalties were concerned. Within minutes of the passage of the bill through Congress , users of the Internet were protesting by including dictionary definitions of "abortion" in their signature files. EFA would urge the ABA to view the brief filed by the American Civil Liberties Association against the CDA , claiming it as an unconstitutional violation of freedom of speech (http://www.aclu.org/court/cdacom.html). Although Australia does not have such a written constitutional protection of free speech , the persuasive political aspects of the brief and the possibility that the High Court may find similar principles in common law ought not be ignored by those drafting legislation in this country.

Even with the present size of the Internet, there is so much content available that only the entire readership of the Internet is in a position to comprehend and digest the whole of the information available. It is no exaggeration to state that there are perhaps content providers who are not users, in the sense that many Usenet newsgroups or file transfer services are automatically generated by computer rather than by an individual making information available. EFA urges the ABA to understand the significant difference between a multi-casting environment and a broadcasting environment, particularly when coupled with the degree of interactiveness of the Internet compared with other media. It may be that in a broadcasting medium, or in point-of-sale transactions, there is a possibility that a reader may receive unsolicited material that he or she finds offensive or disturbing. In the Internet, one must take deliberate steps to find material and unsolicited material that is offensive or disturbing may be turned off at the click of a mouse button.

Thus , the OFLC classification system is inappropriate as:

- the Internet is a members-only , adult medium - users make the information as much as they receive it - information must be actively sought out , rather than passively viewed - "refused classification" material is illegal under other laws. - an access provider cannot verify that a password holder is actually the person accessing the system there and then. It could be the user's spouse, parent or child - making an informed decision as to the suitability of +12 , +15 or +18 years of age material impossible.

At page 22 of the Issues Paper, the ABA has identified certain principles that it believes should be taken into account in considering a regulatory framework. With the utmost respect, first on that list should be the technical feasibility of the proposed regulatory framework, swiftly followed by the reality of the volume of the Internet. It is highly arguable that the Internet is too large to be regulated by any national government and quite likely too large to be regulated by all national governments. The appropriate course is to identify criminal behaviour by users and to prosecute such behaviour under existing laws. It is a case of "shooting the messenger" to regulate the Internet when it is the behaviour by users on the Internet which is the source of all public concern.

That is not to downplay the importance of freedom of expression, including the right to hold unorthodox opinions , promote alternative lifestyles or have controversial reading habits. Activity on the Internet is in the privacy of one's home , not in a movie theatre , and notions of public order and decency do not translate from a public to a private source of material.

The protection of children from "harmful or disturbing" material is a vastly over-stated concern , relying on a potential for harm rather than any demonstrated harm. The ABA should be cautious as to accepting this "community concern" unless is can be established that a number of children have in fact stumbled on material on the Internet that /has/ been harmful or disturbing to them. EFA considers the so-called risk to children a substantially dishonest proposition , in that it has not been demonstrated by any study whatsoever that children have been harmed by the Internet in any way.

As Bruce Sterling stated , it is difficult to take seriously a government that proposes to censor free speech to "protect" children , when children of that country are dying from violence , drug addiction and malnutrition through government neglect. As an appeal to the heartstrings , protecting children may have a community's attention - but it is a cynical move to censor a free medium without empirical evidence that shows it to be a social problem of the seriousness of , say - dyslexia.

There is no point in attempting to adopt a degree of consistency in the application of content regulation to off-line and on-line services. It is like the difference between trying to regulate a newspaper and regulate the conversation of a crowd. It is well within both the power and the responsibility of the national government to identify criminal behaviour by users, some of which (such as international harassment) represent new legal problems. However, to focus entirely upon sexually explicit material is to lose all perspective on the usefulness of the Internet, the range of information available and the overwhelming use of the Internet for entirely other subject-matter.

So far as maintaining Australian competitiveness in the global on-line services industry is concerned , in fact there is a grave danger that a regulatory policy will have the outcome of reducing Australian content by driving out of business Australian access providers. Why should anybody use an Australian service, crippled by regulation, when an entirely unrestricted service is available in a neighbouring country? The American and British experience is that information integrity and freedom of expression are given extremely high priority by Internet users and Internet users have no difficulty in switching to an international service provider.

EFA notes that prominence is given within the Issues Paper to the "development" , presumably from outside the on-line services industry, of a Code of Practice designed to address a raft of issues. This is censorship by stealth , and a dishonest means of regulating the Internet. There is no indication as to how the ABA would propose to police such a Code , although the DCA discussion paper indicated that sanctions such as de-licencing access providers , prosecutions and removal of bandwidth privileges were under consideration. It seems the ABA is contemplating passing the task of policing unrealistic rules to the industry , under the guise of self-regulation.

A genuine Code of Practice can only arise from a recognition of professional conduct by access providers , based on a sound knowledge of the technical and ethical issues involved. There is only one Code of Practice in the public domain in Australia - the "Code of Conduct" drafted by the industry body the WA Internet Association (Inc) , available online at http://www.waia.asn.au/ . It was formulated following extensive polling and discussion by access providers and Bulletin Board system operators during 1995 , and represents the consensus of the industry as to appropriate subject-matter and standards of behaviour to be thus codified.

The WAIA Code of Conduct represents the maximum and the minimum requirements commonly determined within the industry which are not otherwise the subject of State and Federal Law. Put simply, the code does not ban racial descrimination because that is elsewhere illegal. The code does not attempt to restrict Usenet newsgroups because it is technically impossible to do so effectively. However, the consensus within the Western Australian access provider industry and the user community is that the above code represents a genuine common ground within the industry.

WAIA has been informed by the Ministry of Justice (WA) censorship office that the above code will be gazetted by the Western Australian Government as an official industry code of practice for the purposes of providing a defence to access providers under the terms of the Censorship Bill 1995 (WA) sections 101 and 103. WAIA has been informed that the Bill is expected to be passed in the autumn session of state parliament. As such, it represents within Australia a unique example of an understanding reached between government and the industry as to what is technically feasible in an industry code of practice and also what is appropriate subject-matter for such a code.

A code of practice is specifically appropriate to the on-line services industry, the reason being that there are sound technical reasons for resisting certain forms of regulation. The submission has already commented upon the technical impracticality of an access provider attempting to restrict access to Usenet newsgroups on the basis of controversial matter or to FTP or web sites, which can change address in minutes. Indeed, it is quite likely that a "refuse access" site list would be both an exercise in futility (as soon as it was circulated, addresses would change) or at worse an actual impediment to the efficient operation of the access provider's computer network (as an extremely long list of sites held in memory has the capacity of interfering with the efficient operation of the computer's other programs).

A code of practice for access providers should do no more than codify the common standard of ethical conduct agreed by an overwhelming majority of access provoders. To translate that notion to a "code of practice" for users would be ludicrous - accounts are easily obtained on other sites , and it is unlikely that a user could be obliged to follow anything other that local site rules. The old AARnet "conditions of access" guide purported to ban all Internet access for "non-research purposes" , and was honoured exclusively in the breach.

There is no doubt that a code of practice could include many issues including community standards, customer relations and similar socially-desirable ends. However, there is no industry or indeed community consensus upon such matters, and consequently the accreditation of service or access providers by a code of practice would be quite unsuccessful legislation. The on-line services community includes single-line bulletin boards (again which may change physical or "virtual" location with ease) and it is quite unrealistic to assume that a medium and an industry which is dominated by youthful hobbyists will be responsive to such regulation. It may well be that community standards will begin to be more completely reflected in the content available on the Internet, once greater sections of the community have access to it. If the government wishes to address matters such as gender imbalance, it would do well to ponder that most Internet access providers are tertiary institutions or businesses, both of which have tax or revenue advantages in the purchase of computer equipment. The general public has no such incentive and women and minority groups often share difficulties with finding sufficient financial resources to purchase a quality computer suitable for Internet access.

EFA would urge the ABA to consider why it might be that technical matters have an impact on the degree to which regulation of the Internet "as if a broadcasting medium" is acceptable to access providers. Put simply, access providers are in the business of giving reliable Internet connections, and the Internet treats censorship as damage and routes around it. If an Australian access provider has "filtered" the Internet, the users of that service will simply transfer to an overseas site, at considerable cost to the bandwidth available to the access provider and consequently the speed and efficiency of the service. Heavily-censored sites will run at a competitive disadvantage with an open site, largely because users will be resourcing in an inefficient manner. It seems to be a highly undesirable outcome that an Australian service provider cannot provide information on his or her own site which the users of that system are free to access at cost to bandwidth from overseas sites.

The further issues identified as potentially within the span of a code of practice on page 26 are, with respect, fallacious in nature. It is scarcely likely that a code of practice for users is in any way enforceable, other than in the context of the unlawful use of an account, presently unlawful under state legislation and subject to gaol penalties. It would be quite open for access providers to make such regulations as they thought fit, but it is scarcely likely that users would not shop around - it is not conceivable that every single access provider could be monitored in its relations with thousands of users. Content providers are users, and it is a fallacy to try and divide the two in an interactive multi-casting and global medium. The WA Internet Association (Inc) strongly recommends that a "minimalist" code of practice such as the Code of Conduct above be established as the standard for Internet use generally. Whilst it does not deal with all matters , it deals with all matters that have industry consensus and technical solutions.

A major issue that has defied industry consensus is whether accounts should be made available at all to persons under 18 , as there is no reliable means for an access provider to ensure than a juvenile does not obtain access to material unsuitable for children , or at least of controversial subject-matter that may trouble parents.It is a matter of commercial common-sense for most access providers to require clients to be over the age of 18, simply for the purpose of enforceability of contracts.

However, there are a large number of on-line service providers that provide services primarily or in a large part to teenagers, such as schools and universities. These organisations are vehemently opposed to any regulation which would result in certain of their users being given second-rate access or no access to the Internet.

A distinction should be drawn between the considerations regarding Internet access for a 10 year old and Internet access for a 17 year old minor. It is unlikely that a 10 year old would be interested in much of the controversial material that is proscribed to children in other media, whilst it may be a significant interest to a school-leaver or university student. Since it is not possible to filter the Internet at a technical level , only parental supervision and education within the home can "safeguard" a child against accessing controversial information. It is highly likely that a 17 year old would both resist and work against filtered content , rendering attempts to restrict access worthless.

Many of the matters said to be included in a code of practice, such as the provision of useful and educative information to users, are market-forces issues. The access provider industry is quite young, and there is no doubt that a trend is emerging that those access providers which give to users significant support of the kind referred to on page 26 of the Issues Paper are obtaining a market advantage thereby. This is a matter of good business rather than an appropriate matter for a code of practice involving as it does sanctions against non-compliance. Quite simply, EFA sees no reason to de-register or ban an access provider from the industry if he or she fails to provide information to users. It may be that the access provider in question is catering for an experienced market, or does not intend to use resources on a significant "help desk" facility. This is a question of what the market wishes to purchase and there is no doubt that significant support will add to the cost of provision of access to the Internet.

Compliance with the Code will never be universal , especially with the explosion of new access providers. As such , like organisations representing doctors , lawyers , dentists and land agents , it is to be expected that not every access provider would adhere to a Code of Practice. The WA Censorship Act cleverly made adherence to a Code of Practice one defence to a charge of provision of restricted material to minors - the other being a reasonable effort to avoid the same. Any Federal recognition of an industry Code might be along the same lines - a simple defence to a charge of wilfully flouting the law being established by the access provider having agreed to be bound by such a Code.

The obligation to block access to certain material is, EFA must advance, "pie in the sky". If such a condition is to be made a requirement of being an access provider, it must be possible. In fact, no technical means of blocking information can be advanced which would provide a one hundred per cent guarantee that such information could not be accessed. Without dwelling on the issue of "hackers", it is quite routine and straight-forward for users to circumvent any filtering software by travelling to another site. Any site outside Australia is not going to comply with Australian law and may in fact obtain a commercial advantage by not doing so.

The so-called "clean , well-lit" site is merely crippled. It discards the 99% good material in order to "protect" from the 1% bad material - and is subject to hackers , forgery of email and deliberate posting of controversial or offensive material in clearly inappropriate newsgroups. Any web limitations may be overcome by a "Canadianizer" or Telnet command.

EFA must comment upon the proposal for an independant complaints- handling body. Such a body would be unnecessary, unqualified and a significant burden upon the small businesses which make up the vast majority of on-line service providers in Australia. EFA questions whether the ABA could seriously contemplate a complaints handling body which required small business proprietors throughout the nation to report to a national arbitration body or be subject to rules and regulations by a national body. Again, the fallacy of comparisons with the broadcasting medium are manifest in holding the access provider responsible for content obtained by users , and as an access provider does not force any information of any type upon his or her users it seems ridiculous to blame an access provider for the types of material accessed.

The access provider gives nothing but a passworded account. Should a user be offended by travelling the Internet, the user has every capacity to avoid a reoccurrence of such offence by choosing not to access that information again. The access provider does not force information upon a passive user. Accordingly, it is quite inappropriate for a national quasi-autonomous government organisation to interfere with the market place and in any event to put small business to the expense of responding to a national complaints handling body. EFA is yet to become aware of any legal issue which has arisen from an Australian's use of the Internet which has not been adequately dealt with under existing law.

An industry code of practice is best enforced by an industry association, such as WAIA. Within the industry , there is an understanding of the degree to which an access provider can be liable for misbehaviour by users or errors of judgment. By contrast , accreditation by a Code and licence is likely to lead to "pirate" sites and unenforceable standards being routinely flouted , bringing any such regulations into immediate disrepute and contempt. Sanctions for breaches of a Code ought to be the decision of the industry bodies , as it is doubtful that the industry would permit itself to be co-opted as the policing authority with respect to regulations the industry does not support and/or obey.

The role of an ombudsman is unconvincing - especially if the number of access providers continues to expand at the current rate. An industry association has a natural growth rate and capacity to meet administrative costs - whereas a Federal office must be funded to cope with whatever growth of responsibility or numbers may arise. If such an office was funded by a levy on access providers , the inevitable cost of meeting the expenses of a paid office compared to volunteer and part-time industry representatives might be enough to impair the ability of small operators to carry on business.

Denial of a "licence" for breaches of a Code would amount to a similar office , at a similar cost. EFA considers this would be the death-knell of the Australian on-line service industry - trapped between taxes and licences an Australian access provider would be well advised to establish a site in another country and secure a good link to it.

Software filters are of limited benefit at a household level , although they may become more sophisticated in the future. However, there is no such software appropriate for an access provider. Realistically , to require an access provider to filter content falls back to "refuse access" site lists , or cutting newsgroups - both of which will be futile or counter-productive as outlined above. It is not necessary to dwell on whether such "filter" strategies are reasonable , they are simply not achievable.

Education of parents and children is a priority. To assist this process, EFA urges consideration of:

- Industry-sponsored teaching utilising under-used TAFE computer equipment at night - Government "recycling" of obsolete computer equipment through community groups , with emphasis on access to the Internet becoming available for disadvantaged groups through orderly supply of second-hand computers.

In conclusion, EFA recommends that the ABA approach the whole issue of the regulation of on-line services firstly from a technical standpoint. There is no point in basing Internet regulation on a refused access list which uses a universal resource locator when the Internet Society is proposing to move over to a "universal resource identifier" system with which it will be a trivial matter to redefine sites by the minute. It is quite unrealistic to attempt to promote Australian content in a quantitative sense in a medium where the user may choose from literally millions of sources of information. Australian content is to be promoted by positive encouragement from government to individuals who wish to establish Internet-related businesses and information sources - not by crippling the free flow of information to Australia and the capacity of access providers within Australia to give to Australians an Internet access of a similiar quality to that enjoyed elsewhere in the world.

EFA , with regret , requests that the ABA advise the Minister that the task of classification of on-line services content is impractical, outside the scope of Broadcasting legislation and technically frustrating. The appropriate conclusion of the Issues Paper should be that the Government should consult with the Industry and develop a grasp of the realities of the on-line service industry.

Kimberley Heitman 16 February 1996

                        Kimberley James Heitman
Internet   [email protected]                 Fidonet    3:690/254.14       
Telephone  +619 458 2790                      Facsimile  +619 356 1247