30 April 1999
Senate Select Committee on Information Technologies
CANBERRA ACT 2600
Via email [email protected]
Facsimile 02 6277 5866
Dear Mr McLean,
Further to the invitation to make a submission to the re-established Committee in relation to the following terms of reference:
"To examine the Government's decision to establish a regulatory framework relating to illegal or offensive material published and transmitter through online services such as the Internet"
EFA appreciates the opportunity to make a submission, and requests that in accordance with previous practice, EFA be granted permission to publish this submission online.
It will not protect children from objectionable content, since overseas sites are out of the reach of Australian law and only a small fraction of such content overseas can conceivably be blocked.
It will create congestion and bottlenecks that will impede the flow of Internet traffic.
It will increase costs and threaten the economic viability of ISPs.
It will reduce the freedoms of all Australians to choose what they read.
It will turn Australia into a paternalistic regime, with characteristics on a par with countries like China, Burma and Iran.
The legislation is not wanted by the ISP industry. It is not wanted by the vast majority of Internet users. It is not wanted by the general community.
While industry regulation is usually provided to protect consumers against business, this Bill does the opposite. The Bill provides no consumer protections (such as privacy protections and the freedom to read) and ISPs who take down or block access to a site under the Bill indemnified against actions by users.
The Bill establishes no rights for content providers at all. They aren't even in the list of people authorised to appeal an ABA notice.
The government has provided insufficient time for community and industry consultation in its rush to pass this legislation. Although Internet regulation has been expected for some time, the actual proposals are far worse than anyone had expected.
The legislation has the potential to swamp the ABA with complaints about material that is not illegal but arbitrarily censored under guidelines appropriate to television, a totally different medium.
Blocking of overseas sites by ISPs is a costly and inefficient process that will clog every Internet node in the country as traffic is examined for infringement of the ABA blacklist.
EFA submits that there is some Internet content that is universally condemned, and global agreement on the definition would be an appropriate response by an Australian government intent on making an effective contribution to dealing with criminal content. Content regulation of the Internet should be left to the police, leaving the ABA with a role in relation to industry issues and education of the community. However international agencies such as Interpol have no interest in investigating erotica.
Australia is out of step with the world on this issue. No other democracy has attempted censorship of this nature, and even Malaysia recently abandoned attempts at local censorship of the Internet.
EFA would advise the committee to recommend that the government not proceed with this legislation. It is both unnecessary and dangerous. Instead the government should work with industry and the community to come up with a regulatory regime that is realistic and workable.
Our major goals are to advocate the amendment of laws and regulations in Australia and elsewhere (both current and proposed) which restrict free speech and unfettered access to information and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.
Self-regulation is no more desirable than government regulation when it forces industry organisations and users to take responsibility for government censorship under the guise of self-regulation. Furthermore, claims that the proposed legislation, administered by the ABA and the OFLC, is a self-regulatory regime are clearly not factual.
EFA strongly supports the principle that content creators rather than carriage service providers should be responsible for online content, and that criminal culpability for such content should apply only to material that is globally and unequivocally recognised as illegal.
The physical location of Internet content is a matter of little relevance. A content provider in any Australian State or Territory can have content hosted elsewhere in Australia or any other country. Realistically, to deny Australian content hosts the right to host content legal and protected elsewhere is to make Australian sites uniquely disadvantaged in a global market.
All commentators accept that there is some Internet content that is universally condemned, and some consider international efforts to eradicate it are capable of success. EFA submits that seeking to achieve global agreement on the definition would be an appropriate response by an Australian Government intent on making an effective contribution to dealing with criminal content. Obviously, the narrowest definitions of illegal content are most likely to be successfully prohibited - a wide definition that includes material routinely available in other countries and protected as free speech in the United States (such as material classified R and X and the vast majority of material Refused Classification in Australia) would be pointless and unenforceable. International agencies such as Interpol have no interest in investigating erotica. Investigation of illegal content on the Internet should be left to the police, leaving the ABA with a role in relation to industry issues and education of the community.
The oft-quoted issue of "protection of minors from exposure to material that may be harmful to them" invites debate over the means to that end. In the event that parents consider that filtering Internet content is a desirable alternative to adequately teaching minors to deal with all types of Internet content, this is best achieved with personally chosen software programs and services and proper supervision appropriate to age and maturity. The increasing emergence of specialist content providers for children will reduce the need for supervision in some cases. Minors are not all impressionable victims nor hardened hackers, and parents are better placed than the Government to determine whether a problem exists with their child's use of the Internet. The development of a range of online services and market forces are a better means of giving parents control over their children's activities.
As President Clinton resolved, following the defeat of the Communications Decency Act, it is the role of the police to track down paedophiles and terrorists - and it is up to parents to supervise their child's use of the Internet.
Especially worrying in this regard is the clause of the Bill (section 84) indemnifying service providers and content hosts from civil proceedings in respect of anything done to comply with the Bill's takedown or access blocking requirements.
More generally, almost all web traffic consists of private communications - personal access to information. Users expect privacy for this in the same way that they expect their library borrowing records to be private. The Bill provides no such protection, and indeed creates defences for businesses infringing on user privacy. Problems also exist with the lodging of complaints. An ISP employee may, as a result of a technical addressing problem, see copies of private user email. Under this legislation, they could report the email (as potentially prohibited content) and would be indemnified against civil proceedings - even if so doing breached both the ISPs contract with the user and the employee's terms of employment.
If, for example, an ISP is given notice to block scores of different pages located on Geocities (www.geocities.com, a large site which provides free web hosting), then the ISP may choose, for technical reasons or otherwise, to block all of Geocities. This will drastically affect its users' freedom to read extensive amounts of perfectly legal material. But under this Bill, its users will have no recourse, even if by so doing the ISP has breached its contractual obligations.
On 6th August 1997, representatives of EFA, WAIA, SAIA, ISOC-AU, IIA and ACS met with Kaaren Koomen of the ABA, Brian Stewart of NOIE and a ministerial advisor to Senator Alston, Marie Kelly. We said that the draft proposals (which were consistent with the Bill that how now been introduced) were unacceptable to the Internet industry and users, were technically incompetent and would not bring benefits to any end-users.
We were promised that the legislation would be subject to extensive consultation before being presented by Government to Parliament, and specifically that ' A further opportunity for comment will be provided through an 'exposure draft' of amendments to the Broadcasting Services Act which will be released before it is introduced into Parliament later this year.' This commitment is still online at http://www.dcita.gov.au/nsapi-graphics/?MIval=dca_dispdoc&ID=366
Similarly, many submissions made to the Senate Standing Committee on IT have been ignored. The Senate IT committee said they would not report on the desirability of Internet censorship until the Government responded to an earlier report - it seems the Government's response is to enact laws that have been criticised by the Internet industry for 3 years.
At the end of the second reading speech there was an order that the Bill be reconsidered in the winter sittings. This is apparently standard procedure according to Senate Standing Order 111.
The intent of this standing order is clearly to allow a Bill to lay on the table for adequate comment. EFA has not found any motion to have standing order 111 waived for this Bill, although there have been such motions for a few others.
The Bill clearly does not warrant urgent treatment, especially as there has been insufficient time allowed for public comment.
A larger, but still small, proportion of non-users perceive it to be a problem.
In the June 1997 www.consult survey of Australian Internet users, fewer than 3% of the 8,591 respondents cited indecent material as a concern (compared with 18% citing privacy and 28% access times). And in a telephone survey of over 1,000 _non-users_ of the Internet, only 15% mentioned indecent material on the Internet as a concern, even with prompting.
www.consult principal Ramin Marzbani noted "this is consistent with all our surveys in Australia to date (over 20,000 responses in total). Indecent content online is simply not an issue. If the government wants to get involved with the Internet, then they should think about what they can do to improve access times and alleviate user concerns about privacy."
www.consult (http://www.consultco.com.au) is the largest Internet research organisation in Australia, considered by BRW to produce "the most thorough research into Australia's online industry".
In its Telecommunications Performance Report 1997-8, which was presented to the Minister, the Australian Communications Authority states that it commissioned a report from www.consult on 'ISPs and consumer ISP issues. It quotes the 5th www.consult Australian Online User Report; June-July 1998. Referring to this report the ACA told the Minister, at page 116, 'Inappropriate content was the smallest concern of Internet users surveyed.'
A straw poll in The Australian (29 July 1997) asking "Is Communication Minister Richard Alston's latest proposal for Internet regulation a reasonable compromise?" -- 93% said "NO".
An Australian Bureau of Statistics survey commissioned by the OFLC (OFLC 1994) explored community perceptions of film, video and computer games...In relation to adult material, i.e. X-rated videotapes, two out of three respondents who held a firm opinion believed this material should be available to adults. A follow-up survey conducted by the Bureau in August 1994 indicated that 78 per cent of respondents supported the availability of R classified films and videos. Source: ABA On-line Services Investigation Final Report, 1996. http://www.aba.gov.au/what/online/olsfin4.htm
An AGB McNair poll showed 83 per cent of Australians thought
non-violent sexually explicit X-rated videos should be legally available. Source: The Age, 25 Apr 97
In the explanatory memorandum (http://www.multiline.com.au/~kheit/explan.html) accompanying the Bill we find:
At one point the memorandum says: The definition of "Internet content" excludes information transmitted in the form of a broadcasting service. So it appears that Internet content has to be regulated as strictly as broadcasting even though broadcasting services are excluded from the category.
Access to online content is certainly far more discretionary than access to television or radio.
The only extent to which web access is not discretionary is in the choice of start-up page, which is typically configured by the computer administrator or vendor, or defaults to the browsers default page. The browser default pages are innocuous, as are the default pages of major computer vendors.
Broadcasting is the distribution method for only a tiny fraction of Internet content. It is not, therefore, reasonable to regulate all Internet content as a form of broadcasting.
Application of the Film and Video classification scheme to Internet content is totally ludicrous.
Most Australian content-providers are not large corporations. They are individuals, non-profit organisations, and small businesses. It is important to keep this in mind. When reading "content-provider" in what follows, you should picture an individual (perhaps a teenager) with their own home page, a group of friends running a small online magazine (perhaps for fan-fiction), or a small organisation (perhaps providing resources and advice for the unemployed). There are hundreds if not thousands of such content-providers for every Ninemsn or Fairfax.
Until the ABA releases specifications for access control systems, all R-rated material will be "prohibited content". It's not entirely clear what "restricted access systems" will be considered acceptable. Elsewhere there are references to "adult verification procedures", however, and the obvious interpretation is that systems such as AdultCheck, currently used on many pornography sites, are what is envisaged.
Unfortunately forcing sites to install such systems creates several problems:
The net effect of this is to effectively cripple any site using adult verification. Content-providers are not trained in censorship law. Most have little or no understanding of the censorship system, let alone the skills and background necessary to apply a classification system designed for films and videos to web pages. The boundaries between classifications are convoluted and difficult to ascertain, even for trained censors. This is why the OFLC charges some $4000 for a G/PG/M/MA/R/X/RC classification.
Moreover, it is not clear that content-providers will be able to ask the OFLC to classify material for them, even if they can afford it. It appears that only the ABA will be able to request that Internet Content be classified by the OFLC -- and the ABA will only act in response to complaints, not concerns by content publishers. So the result of this legislation will be widespread uncertainty, even among those not publishing R-rated content. Between the actual effects of access control systems and the general uncertainty created by application of censorship to such a range of of materials, including ones distributed without controls in print, this legislation will, if actually implemented, push content providers out of Australia. Users and businesses will opt to host their content overseas, where they simply don't have to worry about such problems. Moreover, the legislation provides no controls at all on overseas R-rated content, so the imposition of access control systems on Australian R-rated sites will have no effect on the unrestricted availability of R-rated material to minors. The only result will be the creation of barriers in the online content industry that affect only Australians, in a bizarre kind of reverse tariff.
Even if complaints were made about only one percent of, say, three million sites, it would make the ABA and the OFLC very busy. Unless the OFLC is to be a solution to the unemployment problem, or converted to a work for the dole scheme, it is difficult to see how they could intelligently classify 30,000 sites in a year.
EFA notes that in the 1997/98 year the OFLC classified a total of 6304 items: films (345), videotapes (3087), computer games (591) and publications (2281)
In 1997/98, the OFLC had 46 staff and the 'Net Cost of Services - Expenses - Employees' in the financial accounts is $2,262,321. It would seem that the OFLC will need to employ many more staff, and the ABA will need additional funding of more than the proposed $1.5 million (as stated in the explanatory memorandum) to cover OFLC classification costs.
Even supposing this target could be achieved, the blocking of a mere 1% of the material objected to by the government would have no real affect on the availability of material that would be rated X or RC.
Moreover even if this 1% were to be blocked, it is likely that a substantial portion of it would change location within days, requiring it to be blocked again.
Additionally, a considerable amount of RC- and X-rated content is distributed away from the World Wide Web, and instead is found in file transfer archives and IRC chat channels. It is extremely difficult to block selected material available from such sources.
Technology to evade censorship is readily available, such as the Anti-Censorship Proxy (available free) described by Bennett Haselton and Brian Ristuccia in their paper Technology for Circumventing Internet Censorship http://www.cfp99.org/program/papers/haselton.htm.
Other technology to evade censorship includes:
"Whenever you visit a Website unprotected, you not only expose yourself to risk of invasion, you provide information about yourself, that can include your viewing habits, your search terms, your geographical location, your address, phone number, employment details, your credit card numbers, and more. Many of these Websites keep logs of this information compiling dossiers on their users as well. Even if you trust the intent and integrity of the people behind the site you're visiting, in most cases, your information is still at risk to security invasion."
Zero Knowledge Freedom: http://www.zeroknowledge.com/
"FreedomTM is easy-to-use software designed to give you total privacy while on the Internet. This driver-level software runs in conjunction with all your current Internet software, ensuring your privacy in a totally transparent, unobtrusive way. Freedom uses high-grade public key cryptography to encrypt the contents of any Internet transmission, including e-mail, chat room, web browsing and newsgroups. It also protects the source and destination of all Internet traffic. "
"The Lucent Personalized Web Assistant (LPWA) is a tool that lets you enjoy personalized Web services while providing privacy, convenience and account security. It also gives you an effective way to combat junk email. LPWA is useful even while browsing sites that do not provide personalized services, since it blocks websites' ability to track your movements. A brief overview introduces you to the main features of LPWA. "
"The approach is based on the idea of "blending into a crowd", i.e., hiding one's actions within the actions of many others. To execute web transactions in this model, a user first joins a crowd of other users. The user's initial request to a web server is first passed to a random member of the crowd. That member can either submit the request directly to the end server or forward it to another randomly chosen member, and in the latter case the next member independently chooses to forward or submit the request. When the request is eventually submitted, it is submitted by a random member, thus preventing the end server from identifying its true initiator. Even crowd members cannot identify the initiator of the request, since the initiator is indistinguishable from a member that simply passed on a request from another. "
"The Onion Routing research project is attempting to build an Internet based system that is strongly resistant to traffic analysis, eavesdropping, and other attacks by both outsiders outside the network) and insiders (within the network). As such, it gives the sender, and sometimes the recipient, anonymity from the transport medium (i.e, the network simply CANNOT know who is talking to whom - it knows communication is taking place, but not the parties communicating nor the contents of that communication). "
"Welcome to the MagusNet Public Proxy Server"
The Bill will not make the Net safe for children, since it can't hope to affect access to more than a tiny fraction of the adult material available online.
Even in Malaysia, which is not known for its liberalism, government gave up attempts to censor the Internet because it was ineffective and above all damaging to their information economy.
C/net (http://hongkong1.cnet.com/briefs/news/asia/19990322bl.html) reported, 22/3/1999, that:
The Australian carried a similar report (http://technology.news.com.au/techno/4346944.htm) on 19 March:
'JUST days after the Prime Minister Mahathir Mohamad complained that people were using the Internet to spread lies, the Malaysian Government has announced that users of the World Wide Web will be free from any form of censorship.
Othman Yeop Abdullah, executive chairman of the Multimedia Development Corporation, which oversees Malaysia's burgeoning Multimedia Super Corridor, said that at the direction of Dr Mahathir, all existing curbs would be removed, including a requirement introduced in December for cybercafes to register all users. The move reflects Malaysian concern over the impact on potential investors in the MSC of signs of creeping censorship, such as the cybercafe plan and a statement by the Deputy Home Minister, Mohamad Tajol Rosli Ghazali, that police would "check every bit of information and leaflet" posted on the Internet.
His remark followed the arrest and prosecution of four people for spreading rumours on the Internet.
Mr Othman announced the government decision at a press conference called to counter a disparaging cover story on the MSC in BusinessWeek, entitled Mahathir's High-Tech Folly.
The magazine said Malaysia's "grand plan" was not working. It said Dr Mahathir's behaviour had set back the MSC by several years and it had failed to get significant investments from high-technology companies.
Mr Othman said the article was grossly unfair, malicious and an example of "sensationalism in its worst form".
He said it would seem that the article "was written with a hidden agenda". Mr Othman said the MSC had already managed to attract 29 world-class companies, more than half the 50 it was targeting by 2003. He said 139 companies were in operation with an investment totalling $M1.139 billion ($470 million). He said the Multimedia Development Corporation did not plan to take legal action against BusinessWeek but it would "have to do a great deal of damage control". The bar on censorship and the lifting of the regulation affecting cybercafes in particular were clearly moves in this direction.
"Many people in the industry see the requirement to register cybercafe users as a form of Internet censorship," Mr Othman said.
He warned that people would still be subjected to existing laws if they downloaded and disseminated unlawful material.
Dr Mahathir had promised freedom from censorship on the Internet when launching the MSC but the increasing spread of anti-government Web sites among supporters of the ousted deputy prime minister Anwar Ibrahim caused misgivings among many ministers.
When he announced the new regulations for cybercafes the Housing and Local Government Minister, Ting Chew Peh, said there was a need "to exercise tighter control and supervision" over users.
Last week, rumours circulated on the Internet that the chief ministers of Kedah and Perlis were being replaced because of poor performance. At the weekend, Dr Mahathir denied that any leadership changes were planned for the two States. "I thought the people would use the Internet to express their ideas but now it seems that it is being used to spread lies," he said.
But Dr Mahathir has made the MSC his personal project - part of his vision to build Malaysia into a technologically advanced nation with fully developed status by 2020. If it can only succeed on a no-censorship basis, curbs must go.
This is likely to result both in a 'content drain' overseas and the export of bandwidth. Australian content providers are likely to arrange for their material to be hosted overseas. Moreover material which could previously have been obtained from Australian sites will now need to be imported from overseas, resulting in an increase of inbound traffic to Australia.
At the moment Australian carriers buy content from US carriers, but must give Australian content to US carriers for nothing. A justification for this is that the traffic is approximately 70:30 in the US carriers favour. This ratio has been improving lately and there have been attempts to get the US carriers to accept a fairer interconnection regime, but an increase in traffic inbound to Australia will weaken the arguments of Australian carriers.
Interconnection payments are a fundamental part of the information economy, and this Bill is likely to inhibit the development of the information economy in Australia.
There is also the cost of administering the system which will be borne not only by the industry directly, but also by the ABA and the OFLC, which are a charge on the public purse.
24-hour takedown provision is onerous and costly for ISPs ISPs are to comply with take down orders as soon as possible, and in any event within 24 hours. This is an onerous requirement, particularly since small ISPs may be unattended on weekends.
Moreover the penalties for failure to comply within this period of time ( 250 penalty units in the case of a body corporate) could destroy small ISPs.
Anyone who has an email account, and keeps material on their computer (any material, not just email) is an Internet content host, since the material on their computer is available for 'access' via an Internet carriage service (in that it can be emailed to someone).
This comes about because access is defined to include 'access via push technology'. Since email is a form of push technology anyone with an email account, and material on their computer can be said to have material that is available for 'access'.
This Bill would do exactly that. The definition of prohibited content is too broad. It would not allow adults to access X rated material in Australia via the Web, when they are able to access it via other means (such as mail order). This treats one form of information distribution (the Web) differently from another analogous form (that is, mail order).
However clause 34 is impossible for ISPs to comply with, since they cannot guarantee that material passing through their systems is not "similar" to material that is already subject to a takedown notice. The ABA could ruin an ISP merely by issuing a clause 34 notice in generic terms. Equally, the ABA will certainly be swamped with complaints (it is expected that both civil libertarians and people in favour of censorship will automate complaints by extracting thousands of URLs from various sources) and it will be likely that the cost of rating millions of sites by the Classification Board will prove prohibitive. The ABA will have to bow to expediency and issue generic takedown and access prevention orders, and ISPs will be returned to the situation where they will be expected to exercise editorial judgements over material posted or hosted by their users.
Similarly, different content hosts should be at liberty to develop differing Codes of Practice depending on the "niche" market they serve. EFA submits that it would be appropriate for content hosts in markets such as "Adult content", children's entertainment, education services, gambling sites or stockbroking (to name but a few) to develop different Codes of Practice to reflect the governance of different State and Federal legislation, and to permit professional standards to develop in the various "niche" markets. Of course, these could all be required to meet reasonable common standards, but multiple Codes would provide greater market responsibility.
It is commendable that the Prime Minister apparently favours freedom of expression, or did at the time of making that statement. Unfortunately, however, it appears the government is not listening. There is a disturbing trend towards an increasingly repressive censorship regime in all media in Australia. While such measures invariably claim "protecting the children" as an objective, they deny the rights of adult Australians to read, see and hear what they want and they deny parents' responsibility for safeguarding their children.
The proposed Internet censorship legislation is a primary example. It will not achieve the claimed aim of protecting children, but it will infringe adults' rights to freedom of speech and the legislated principle in Australian law that adults should be free to read, see and hear what they want.
EFA believes that the proposed legislation contravenes Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the "International Covenant on Civil and Political Rights(ICCPR).
Article 19 of the ICCPR states:
EFA draws to the Committee's attention that the proposed legislation will infringe the rights of Australian citizens under clause 19(2) and is not "necessary" as set out in clause 19(3).
While attempts to censor the Internet in the manner described in the Bill will restrict Australian's freedom of speech and inconvenience them in accessing content on the Internet, they will be wholly unsuccessful in terms of protection of "national security or of public order, or of public health or morals".
In fact, such attempts may have the reverse affect in preventing Australian citizens from accessing information necessary for protection of public health, given the type of information "guessing engines" are notorious for blocking (eg. information about safe sex and AIDS).
The Internet it a world-wide communication system which the Australian Government, like the Malaysian Government, must accept it cannot control.
The restrictions on freedom to seek, receive and impart information and ideas of all kinds will not be mitigated by the tiny quantity of information on a global network that the government's proposed censorship regime might successfully block.
EFA calls on the Committee, and the Government, to acknowledge and accept that the majority of Australian adults do not want more censorship. Arguably, they do not even want the level currently enforced.
Despite the claims of moral crusaders that there is "wide community concern" to support the heavy-handed censorship they favour, surveys of Australian adults since at least 1992 have consistently shown vast support for the availability of X-rated (67%-83%) and R-rated material (72%-82%) to adults. These studies have been carried out by respected organisations including the OFLC and the ABA. (For examples, see: http://www.libertus.net/censor/surveys.html)
The results of these surveys are supported by the community outrage evident during the Government's most recent attempts to ban X-rated videos and R-rated material on pay-TV. Several years passed before the results of the ABA survey in the latter regard were accepted as reflective of community views.
Insofar as the Internet is concerned, adults have the option of choosing to use blocking software if they fear clicking on a web page link which leads to material they find offensive, or which might disturb children under their supervision. It is therefore unquestionably inappropriate for the Government to mandate that ISPs use blocking technologies to restrict adults' freedom to choose to read what they want.
Although it is claimed that the Bill will make material illegal off-line illegal online, this is based on the premise that the Internet is like Pay-TV. It is not. The Internet is clearly not a broadcasting medium, as Senator Alston acknowledged in July 1996 (see Section 1 - Introduction).
In fact, the proposed legislation goes far beyond making what is illegal off-line, also illegal on-line. For example, it is not illegal for most adult Australians to request, receive and possess X-rated videos by mail order, so there is no justification for attempting to prevent adults from choosing to access X-rated material on-line. Similarly, it is not required that adults provide identification in order to view R-rated films at the cinema. However, on-line, adults will be required to provide identification - enhancing the ability of ISPs and web-site operators to watch and build profiles about users' interests and behaviour and potentially use such information for marketing and other purposes. It is disturbing that the Government intends to legislate that adults be required to identify themselves before being permitted to read adult content, particularly when there is no legislation protecting members of the public from privacy infringement by the private sector.
As Avedon Carol, of Feminists against Censorship UK, writes, in A Lie About the Dangers of Pornography: