Electronic Frontiers Australia (Inc.)

Response to the ABA report into regulation of online services

Summary:

1. EFA opposes the use of PICS as a compulsory standard for content labelling and software tools such as NetNanny are not suitable for online service providers.

2. The use of Industry "codes of practice" as a means of forcing compliance with censorship is unworkable.

3. Voluntary labelling and codes of practice are under development, and further industry and public consultation is necessary before State and Federal governments should proceed to legislation.

Submission :

The Australian Broadcasting Authority was directed by ministerial order dated the 24th July 1995 to investigate:

a) The content of on-line information and entertainment broadcasting services, including any broadcasting services provided on the Internet, with a view to examining the appropriateness of the development of codes of practice for those services that, as far as possible, are in accordance with community standards;

b) Technological advances and service trends in the provision of on-line information and entertainment services by the broadcasting industry; and

c) The extent to which on-line information and entertainment broadcasting services are accommodated by the operation of the Act.

The ABA was requested in undertaking the investigation to consider the following issues:

a) The nature of material which may be provided generally via on-line information and entertainment services including the Internet and bulletin board services, particularly as it relates to community standards and the protection of children from material which may be harmful to them;

b) The appropriateness of any measures which might be introduced to encourage or require on-line service providers and users to meet community needs, through various means such as the development and adherence to self-regulatory codes of practice, educational programmes, complaints handling procedures, devices for blocking or filtering certain material and offence provisions.

In pursuing this investigation, the ABA made advances towards a greater understanding of on-line services by widely advertising its enquiry on the Internet (although not bulletin board systems), offering electronic mail facilities and a web site for on-line enquiries and submissions and also in consulting around Australia with industry and special interest groups.

Unfortunately, the ABA has succumbed to a bureaucratic answer to the ministerial direction. The Minister's direction clearly required the ABA to examine the appropriateness of the development of codes of practice and the vast weight of opinion provided to the ABA was that the development of codes of practice was an industry matter, not a matter for government.

A self-regulation system requires a special understanding of the nature of transmission of data through the global Internet. The requirements of on-line service providers to control the flow of that information is based on technical restrictions far more than professional standards.

The ABA has enthusiastically embraced the notion of self regulation through codes of practice. If indeed there were codes of practice prevalent within the on-line services industry, these would be required for industry objectives rather than the motive of bringing in censorship by regulating compulsory adherence to those codes of practice.

An important industry code of practice which was obviously not considered by the ABA was the Fidonet policy, which has operated within amateur bulletin board systems networked throughout the world for over a decade. It does not attempt to regulate or control content passing through the thousands of systems connected to that network by any other means than common courtesy and common sense. It has never been suggested within Fidonet policy that a system operator could possibly be held responsible for content created on another system and sent automatically through automated mail protocols to neighbouring and foreign Fidonet systems.

The notion of offences being created by the transmission of data represents a misunderstanding of the nature of the Internet. Put plainly, Internet access providers have no choice in transmitting another site's content. They are merely carriers of the content and the ultimate responsibility for sending or receiving of information on the Internet belongs with the users of the system. It is noted that law enforcement authorities find this notion inconvenient, on the basis that if responsibility for Internet content lies with the content provider, not the Internet Access Provider conveniently located within that jurisdiction, it will make prosecution for data offences difficult.

While this may convenient for prosecution purposes, it prosecutes the innocent party.

As a "compromise", the ABA has embraced a notion that ISP's may not be bound by "content regulation" but instead by a "code of practice" which will amount to an industry code for the Government's objectives. It is the submission of EFA that if content regulation directed against on-line service providers is unworkable if dictated by censorship legislation , it is equally the case that content regulation under a "code of practice" is similarly unworkable.

It appears that insufficient attention has been given to the Minister's direction to consider the appropriateness of such measures. It is quite plain that devices for filtering or blocking certain material are in prototype stage and are unlikely to ever provide a complete solution for "blocking" Internet content of any kind. There has been insufficient analysis within the report as to the means by which educational programmes concerning the Internet will be established. It appears that the ABA is in the process of persuading the government that censorship of the Internet may be too expensive, education about the Internet may be too expensive, but requiring ISP's to be bound by government dictates under an industry code of practice is a cheap and permanent solution.

Unfortunately, the regulatory regime must collapse at the point of the complaints handling procedure. Whatever the subject matter of the proposed industry codes of practice, their means of being "registered" and whether the ABA requirements for a registered code of practice are desirable are all insignificant issues compared with the problems of monitoring the operation of the codes.

Australia in the near future may have thousands of Internet access providers, some of whom are small operators with a half-dozen users, some of which are global corporations. The proposed regulatory regime promoted by the ABA cites a number of methods by which the effectiveness of the regime may be monitored, including the collection by "an independent government agency" of quarterly, by-annual or annual records of the number of complaints received by service providers, the number of unresolved complaints which have been forwarded to the relevant independent complaints handling body and the outcome of the unresolved complaints. This therefore requires ISP's to both adopt a uniform complaint handling procedure and also for the establishment of a complaints council and a body to regulate the complaints council. Both of those would be huge financial impositions upon a fledgling industry.

It appears that the ABA has been influenced by a particularly complicated proposed industry code of practice drafted by Patrick Fair of a Sydney corporation "The Internet Industry Association of Australia". That proposed code of conduct, released on the 10th September 1996, proposes a top-heavy industry body, drawing extensive levies from the Internet access providers in order to sustain a professional council as well-funded and well-staffed as a national professional body. INTIAA was established with board members representing hardware and software vendors, a national law firm and several large Internet access providers. Other members of the company include media and the Taxation Institute of Australia. It is fair comment that INTIAA represents a sector of the market with deep pockets and contacts in government, as indeed the Minister for the Communications and the Arts launched INTIAA on the 15th December 1995. The proposed code of practice makes use of the ABA's favoured PICS web page rating standard compulsory , creates an Administration Council with a government appointee as Chair and no direct voting by member service providers on changes to that Code.

For those worried about censorship of the Net through the back door, the proposed Code places on service providers the obligation to block "X-rated" material as if it were child pornography. A further problem for service providers is the requirement that they report "illegal" sites to the authorities , report "RC" violations to other site administrators and delete users to enforce compliance with censorship.

INTIAA's code of practice does not represent a consensus within the industry. There are State Internet Associations (WA Internet Association, South Australian Internet Association, ACT Internet Association) which do not subscribe to such a bureaucratic system and which instead are developing codes of practice which more fully fulfil industry aspirations and conform more fully to industry experience. The State Internet Associations are much more "grass-roots" organisations and better represent the position of Internet service providers. The codes of practice developed by those associations make it quite clear that an Internet access provider cannot be held responsible for content not originating on his or her system under any circumstances. The complaints handling procedure is restricted (as it should be) to complaints of a contractual nature with the IAP concerned and complaints of a technical nature arising from the IAP's responsibilities within a global network. The suggestion that a user of the system is acting illegally is not enough to institute the complaint process, such conduct must be identified as illegal by competent law enforcement authorities. The gloss and complexity of the INTIAA code by comparison has obviously promoted to the ABA the notion that the industry can self-fund a policing function as the government may direct.

For this reason, the ABA proposal for the development of self regulatory codes of practice must be taken in a more sinister context. The ABA has proposed that a government agency have a registration and monitoring role in relation to the codes of practice and further it is stated within the report that such a code of practice must contain elements that the ABA finds appropriate. This defeats the entirety of reliance upon self regulation, it is in fact government regulation through the mechanism of a compulsory professional organisation.

The ABA took the view that the Internet's own self-regulation procedures, commonly known as "netiquette" do not "address community concerns to the extent they should be included in a codes of practice. Further the evolving nature of netiquette may render it inappropriate for inclusion in a code of practice". This therefore leaves a void within the code of practice as to professional conduct within a global on-line industry. If the Net's own regulatory mechanisms have been so swiftly dismissed then it must be left to the laws of each State, Territory and Nation to determine what constitutes lawful service provision in that place. Very swiftly, it appears that the void is to be filled not by an Act of Parliament which may be subject to the scrutiny of those concerned with civil liberties, but instead by requiring the insertion of censorship and responsibility for content within a code of practice else punitive laws will be applied against the Internet access providers.

To an ISP, this is a choice between the noose and the knife. If the ridiculous and punitive laws established by some State and Territory governments (and continuing to be a feature of debate at a Federal level), had not been enacted against Industry advice , there would be no need for a code of practice to provide a defence. Thus, if the code of practice is designed to be a means of "self regulation" as approved by the ABA, it becomes a means by which a licence to provide Internet services (being able to be suspended at any time by a professional organisation) becomes an equal and perhaps more financially damaging means of control.

Obviously, the nature and terms of the codes of practice will determine whether or not the codes as approved insert obligations which go beyond the law as it presently stands. However, while the government attempts to use a so-called "industry code of practice" as a means of regulation of content by prosecuting system administrators, the government illustrates that it has not learned what the role of on-line service operators is.

The system administrator of an Internet site is not capable of monitoring the content that passes through his or her system. This is partly a function of the technology involved, and partly a function of the huge volume of the Internet. No decree by Act of Parliament or code of practice can change this simple truth.

It is necessary for regulatory agencies to understand that the global Internet is not an Australian phenomenon and the best-intentioned of Australian laws will make no impact whatsoever on the content available on the Internet. If there are community concerns as to the availability of material which may be harmful to children, it is a misapprehension created by a censorious interest in a very small amount of the data available on the global Internet. If the government wishes to address the community concerns, it may do so with intelligence and an eye to the future by educating in schools and in the wider community the basics of Internet use and means by which a user may control more precisely the information that is retrieved from Internet searches.

It is not possible for system administrators in Australia to act as the nation's child-minders. The ABA report appears to be ambivalent about the response to minors using the Internet. On the one hand it strongly recommends that service providers be required to include in codes of practice procedures that aim to verify that prospective account holders are over the age of eighteen (18) years. This is to make it effectively an offence punishable by deregistration to permit a minor to have his or her own Internet account. This is an unnecessary restriction on civil liberties, one makes no such requirements for any other form of library and to make the analogy with sex shops is to caricature the Internet as library of a same nature. The consequence that service providers lose their registration if they provide a "kid-safe" Internet environment seems to be a totally counter-productive proposal.

Another mistake the ABA report makes here is in using an understanding of Internet access which is already dated and will soon be completely fallacious. The whole idea of restricting possession of "accounts" to adults assumes that there is some sort of account involved.

At the _moment_ most private users connect to the Internet by dial-up sessions over a modem, sessions which (for billing purposes) require authentication in the form of a password. This is possession of "an account".

For users who have access through work-places and individuals with dedicated connections, this picture is already wrong. There is no clear divide between being "on" the Internet and being anywhere else. If one has a permanent, 24 hour connection to the Internet, is the user "on" the Internet all the time? Only when sitting in front of the computer? Only when sitting in front of a computer using a network application? What if the user is reading email from last year? The futility of answering these questions makes it clear that "on the Internet" is a meaningless term for such users.

Now consider that in the not too distant future most household Internet connections will be permanent, that libraries and cafes are already Internet access points and that all kinds of other businesses and organisations will also be, and that public phone booths are likely to become public Internet access points. Any sort of clear-cut divide between life "on" the Internet and ordinary daily life is clearly illusory in this sort of world.

EFA believes that children have a right to access the Internet and that given a sufficient interest by parents and educational authorities, it is possible to develop strategies for ensuring that children do not come into contact with material that is harmful in any way. They may come into contact with controversial material, and education is the key to determining the best means of dealing with controversial material and any other problems that children may face on the Net.

Unfortunately, the ABA then goes on to attempt to rate Internet content as unlawful when unsuitable for minors. There appears to be an inherent contradiction here, that on the one hand the ABA is forbidding minors to access the Internet and on the other hand it is attempting to make content labelling primarily a task for protection of minors. The inconsistency of this policy is not helped by the ABA's reliance upon the voluntary rating systems such as PICS. There is no doubt that rating systems and filter software are valid tools in the hands of a user for assisting in the users choice of Internet content. However, such methods are clumsy and imprecise, and often block out unrated material as if it were unsuitable material. It is quite probable that most households would disable a software filter or even a computer chip that interfered with access to the Internet without being precise.

For example, whole Internet sites are blocked by certain filter software programs because of a historical link to another proscribed site. There is a filter software programme which blocked out a particular address solely because the owner of that address criticised the software program. The market for such software filtering systems and the evolution of such software programs is developing, but at this stage it would be premature to include either PICS or software filtering programs into any regulatory regime.

Prior to convening an On-Line Labelling Task Force and design of an Australian purpose-built labelling scheme, the ABA should identify whether currently available ratings systems are suitable for labelling material in accordance with Australian community standards and, if not, whether the integrity of an Australian government labelling system could be maintained in any case.

However, the effectiveness and usefulness of any ratings system is dependent on the accuracy of the labels placed on material, rather than the labelling guidelines. As the ABA has acknowledged, labelling by the wide variety of content providers, who have differing sensitivities and sensibilities and will interpret guidelines differently, will result in considerable inconsistency in labelling (p82).

An Australian labelling system, able to be relied on by parents, would therefore require at least one ratings service which validates labels. As also acknowledged by the ABA, it is not possible for a central agency to classify the volume of material available on-line (p89). In the absence of a speedy, free of charge ratings service which validates all content labels under an Australian government ratings system, such a system would be of limited usefulness and is unlikely to gain wide acceptance by either consumers or content providers.

Ratings services are already available in the U.S.A. and are very likely to be offered by Australian organisations and community groups etc in the near future. However it is not possible to force ratings services, or consumers, to use an Australian government rating system, nor should it be. To attempt to do so would be contrary to the intent of the Australian classification system which the ABA notes (p88) is "for the most part ... not censorious. One of its main functions is the provision of information to parents about the nature of material in different media." Labelling and/or rating of on-line material by content providers and/or ratings services, together with the use of PICS enabled software and ratings services by consumers, will provide that information to parents and others without the need for a purpose-built Australian ratings system. Consumers will be able to choose one or more ratings systems and services, which are most closely aligned with their own values, from a range of offerings around the world. If the Australian government or ABA feel they must intervene to provide guidance to parents, it would be more practical for them to endorse rating systems and services developed as a result of market forces and provide information to parents on those which rate material in accordance with Australian community standards.

Whilst it is acknowledged that the ABA became aware of PICS late in its investigation, an area which has been overlooked in the ABA's report is that of the role of content ratings services. The ABA has placed much emphasis on codes of conduct for service providers, who do not generally provide content, and encouraging content providers to label, or provide warnings on, their material. However, unless consumers choose to rely on labelling of material by many people unknown to them, they will use a ratings service to assist in controlling their children's', or their own, access. Codes of practice related to availability of controversial material would be more usefully applied to ratings services, with a view to ensuring their ratings are in accordance with Australian community standards, rather than to service and content providers who have considerably less ability to control what material may become available to minors and other users. Furthermore, ratings services have a far greater potential to influence community views (one of the rationales for regulation, p10 and p42) by incorporating personal biases and standards into rating decisions on a wide variety of content providers' material, than do individual content or service providers.

Taxpayer funding, which would be allocated to development of an Australian government ratings system, would be more usefully directed towards a comprehensive public education campaign on the use of on-line services and technological solutions for managing childrenís' access, as recommended by the ABA and several prior Australian government inquiries.

As to the recommendation that "content providers be encouraged to provide warnings about the nature of material, particularly that which is unsuitable for minors" , this would tend to make an unreliable standard even more so.

This recommendation is inconsistent with the ABA's views regarding the difficulties of untrained people attempting to apply the existing OFLC guidelines (p91). Content providers cannot be expected to make fine-grained judgements about "Restricted" material under OFLC guidelines which are not able to be easily interpreted.

Furthermore there is no reason whatsoever to require all content providers to place warnings on, or label material. This places the onus on content providers to protect children, rather than on parents. Parents and other consumers concerned about access to controversial material can use readily available filtering software, or PICS enabled software set to prevent access to all unlabelled material and to material labelled with a rating deemed unacceptable by the end user. Requiring content providers to provide warnings is totally unnecessary.

The recommendation that "with the objective of maximising Australian labelling consistency with overseas rating schemes, the ABA and the OFLC establish relationships with relevant international bodies" , one problem is that such international bodies are fledgling and diverse in their views.

The purpose of maximising consistency with overseas rating schemes is unclear. PICS software cannot identify whether or not ratings systems are similar. Even if several ratings systems contain the same definitions at various classification levels, consumers must still choose which named rating system/s their software will use when allowing access to material. The only benefit in establishing relationships with international bodies in this regard is if the Australian and other governments wish to develop one rating system, which their citizens may or may not then choose to use. That, in itself, is a commendable objective however the primary intent must be to achieve total consistency, not to maximise consistency.

The ABA is to be congratulated however for rejecting the proposal for a "refused access list". The technical difficulties with such a system could not have been overcome. However, the proposal to convene (yet another committee) an On-Line Technical Task Force comprising industry experts to investigate further methods seems to indicate that the ABA is hopeful that technical solutions will emerge in the future. Ultimately, it is one more attempt to make Internet access providers responsible for content passing through their systems, and as such to be deplored.

The ABA proposals for community education do not appear to have been developed to the same extent by consultation with educational institutions. In many respects, this ought to have been the easiest means by which community concerns regarding the Internet could have been addressed. The report claims that the ABA will establish formal links with the educational sector and that strategies should then be developed to give teachers the technical competence to guide students - also that industry codes of practice will be required by the ABA to have community education as a key objective. It would have been far simpler for the ABA to acknowledge that it has no leading or expert role in education on the Internet and instead have directed that the matter be handled by the Department of Education.

Throughout the report, there is the indication that the ABA considers that the Internet is a novel form of broadcasting, with special problems that it has not previously encountered in relation to television, radio and broadcast media generally. EFA understands that it is proposed that the ABA be given "control over" Internet access providers and the operators of other on-line services by making a change to the Broadcasting Act which will have the consequence of defining on-line service providers as "narrow-casters", thus creating a new form of broadcasting to be administered by the ABA. This ignores that the Internet is equally important in the lives of many people as a means of one-to-one communication , and in such communications privacy is a higher value than whether a stranger might be offended or surprised.

Essentially, this change to the law indicates that neither the ABA nor the Government has been able to understand that Internet Access Providers do not broadcast in any sense. They are merely the carriers of information chosen to be sent and received by the users of the system and therefore if there are to be penalties attached to the use of on-line services it is the users rather than the Internet Access Providers that should be prosecuted. On this point, EFA is unconvinced that there is any activity established by the lengthy investigation into the content of on-line Services that has established a need for new offences of any sort. It is significant that the ABA has resiled from specifying draft offences given that the direction by the Minister included the investigation of the use of offence provisions to encourage or require on-line service providers and users to meet community needs. The offence provisions, which are apparently to be left to the diverse opinions of the State and Territory Governments, are essential to an examination of the reasonableness of the ABA's approach.

In an email message released by the ABA on the 14th August 1996, the ABA stated that it supported uniform laws but were not making any comment on the applicability of existing or proposed laws by the State and Federal Governments. The ABA states that one of its interests in the proposed and existing State and Territory criminal laws was simply to ensure that its development of codes of practice would include such provisions as would enable such codes to act as defences under those states' legislation which provided that adherence to a recognised industry code of practice would be a defence to certain transmission offences.

The ABA is therefore positioning itself to either be the controller of the complaints process against on-line service providers, the regulators of the codes of practice or alternatively the arbiter of content on the Internet - which will then be imposed upon the community by making it a requirement of the codes of practice. This is not a role that is appropriate for a Federal body when state governments have maintained separate and contradictory approaches to transmission offences within Australia.

One reading of the ABA's recommendations is that it proposes that it be the arbiter of rating standards, appropriateness of codes of practice and compliance with such codes. The industry requires genuine consultation, not licencing by the ABA.

Finally, an analysis must be given to the appropriateness of the government being involved in the provision of Internet services in any way. The Internet is a tool for accessing information, analogous in many respects to the telephone. The government has never sought to regulate what can be said over a telephone, other than to have a solitary section of the Crimes Act Section 85(ZE) forbidding the use of a telecommunication service in such a way that a reasonable person would consider offensive. This remains a suitable law of general application for on-line Services, provided that mens rea and evidential factors are strictly observed.

To quote from the ABA report "while objectionable material is certainly available, particularly for those with an interest in such material, the likelihood of users being involuntarily exposed to such material is, in the ABA's view, negligible. This is particularly so for more naive users of on-line services such as a young children (sic)." Whether one agrees with the ABA's assertion thereafter made that "the presence of objectionable material on-line, whether it is easier to gain access to that material or not, is a matter of serious concern" is a matter of opinion. EFA submits that as objectionable content represents such an insignificant portion of Internet usage, it be considered no good reason to establish a top-heavy bureaucracy over the small businesses which make up Australia's Internet access providers and other on-line services.

Kimberley Heitman,
Chairperson , EFA
21 October 1996

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