12 November 2004
Ultimately the decisions we make now about privacy and whether or not we truly value it will shape the kind of society our children will inherit in the future. As an agency charged with protecting privacy, we must confront those who would trade away individual rights, for the promise of national security or privacy invasive technologies.
Jennifer Stoddart, Canadian Privacy Commissioner, Annual Report, Nov 2004
On behalf of the board, I am pleased to report on EFA's activities for the past year. As has been the case for the last few years, much of our activity this year has been concerned with defending individual privacy, but we have also been active in promoting fair use rights for the users of copyright material, an issue that will become increasingly critical in the future as Australia moves into full swing with the Free Trade Agreement with the USA.
Two years ago, EFA made a submission to the Department of Communications, Information Technology and the Arts ("DCITA") Review of the Operation of Schedule 5 to the Broadcasting Services Act 1992. This review finally made its appearance in May 2004, and basically recommended no changes to the existing co-regulatory scheme.
However, groups in the community who promote mandatory ISP-based filtering, e.g. the Australia Institute, have been getting media attention, and at the recent Federal Election we saw the Family First Party win a Senate seat (albeit with 1.8% of the primary vote) on a policy that included introduction of mandatory filtering. The recent arrests of several hundred people in Australia on child pornography offences has gained extensive media coverage, and pro-censorship groups are happy to leverage the resulting public outrage to promote blanket censorship as a solution.
EFA maintains a liaison with most political parties about this issue, and provided a speaker on the topic of Internet Regulation for an ALP IT Committee seminar in Sydney in May 2004. We are continuing to research technical developments and social policy in this area, and will campaign against any attempts by government to treat the entire adult population as if they were children or criminals.
The Commonwealth Government's has made three attempts since early 2002 to amend the Telecommunications (Interception) Act 1979 ("the TI Act") in relation to email, SMS and voice mail messages. Under current law, an interception warrant is required to access the contents of email, SMS and voice mail messages that are temporarily delayed and stored during passage over the telecommunications system, (e.g. stored on an ISP's or telephone service provider's equipment pending delivery to the intended recipient), the same as is required to intercept a telephone call.
The 2002 Bill attempted to clarify the issues surrounding law enforcement obligations to obtain a warrant to intercept non-voice communications by virtually abandoning the need for an interception warrant. This part of the legislation was withdrawn when it became obvious that it would not pass in the Senate.
In March this year, the government introduced the Telecommunications (Interception) Amendment Bill 2004 which sought to increase the protection accorded to delayed access messages. EFA made a written submission and presented oral testimony to the Senate Legal and Constitutional Legislation Committee inquiry into the provisions of the this Bill. Those provisions were subsequently deleted from the Bill due to disagreement between the Attorney-General's Department (relying on the opinion of the Solicitor-General) and the Australian Federal Police (relying on the opinion of the Commonwealth Director of Public Prosecutions) concerning the correct interpretation of the law.
In May 2004, the government introduced the Telecommunications (Interception) Amendment (Stored Communications) Bill 2004. The stored communications provisions of this Bill are substantially the same as the proposed and rejected provisions of the TI Bill 2002. Moreover, this Bill is even more objectionable than the 2002 proposal because it completely removes email, SMS and voice mail messages (stored communications) from the scope of the protection of the TI Act.
EFA made a written submission and presented oral testimony to the Senate Legal & Constitutional Legislation Committee Inquiry into the provisions of the Bill, and also provided a supplementary submission in response to a Question on Notice from the Committee.
This Bill lapsed when Parliament was dissolved prior to the Federal election. However, it appears likely that it will be passed by the new Parliament, even before the Coalition gains full control of the Senate on July 2005. The ALP has announced that it will support the Bill, subject to amendments recommended by the Senate Committee. These amendments call for a definite 12 month review of the Telecommunications Interception law in the light of today's technology and competitive environment. While EFA opposes the provisions of the Bill, we strongly support the need for a complete review of the legislation, which has become almost incomprehensible when applied to today's communications technologies.
2004 has seen more involvement by EFA in Intellectual Property areas than any previous year, as powerful IP stakeholders have lobbied and litigated for broader protection and harsher punishments. The anti-consumer effects of these changes will be powerful and long-lasting.
Two copyright cases are currently underway, which are likely to shape the face of copyright law in Australia as it applies to the Internet. In Universal Music v Cooper, the music industry argues that hyperlinking is an infringement of copyright. Should the court accept this argument, the consequences to Australian publishers of any web sites would be catastrophic. Publishers would have to seek permission prior to linking to any other site on the Internet, or risk a lawsuit for infringing the copyright in the site to which they link. Dale Clapperton, an EFA board member and convenor of the IP committee attended the first week of the trial in this case, which is scheduled to resume in February of 2005.
In Universal Music v Sharman, the music industry argues that a software vendor can be held responsable for the copyright infringements of the users of their software, much as they are trying to achieve in the US with the proposed "INDUCE" Act. If they are successful, the entertainment industry will effectively have veto power over the development of any new product or technology which is capable of infringing copyright. EFA has applied to the court to make an amicus curiae submission in this case.
The controversial Free Trade Agreement with the United States threatens to import into Australian the worst features of US copyright law, including the much maligned Digital Millenium Copyright Act (DMCA). Simply put, the FTA requires Australia to adopt all the parts of US copyright law which are good for copyright holders, and none of the parts which are good for consumers. Australian consumers will not gain any of the "fair use" rights currently enjoyed by Americans, but instead will suffer new offences and dramatically increased penalties (including imprisonment), under an archaic and out-dated model of Copyright under which they cannot legally tape a program off TV to watch at a later date, or copy a CD they have purchased onto any other medium for their own personal use.
EFA has lobbied against the Intellectual Property provisions of the FTA, making a written submission to the Joint Standing Committee on Treaties inquiry into the Australia-United States of America Free Trade Agreement, in April 2004. We also made a written submission to the Senate Select Committee inquiring into the FTA and Board members Dale Clapperton and Matt Black travelled to Canberra to give oral testimony before the Committee.
In a sign of things to come under the FTA, an Australian open source software developer received a "take down" notice from the US based Motion Picture Association of America. The notice, probably auto-generated in a keyword search of the Internet, claimed that two small free software source packages were infringing copies of movies. The notice demanded that the developer's internet account be disabled and referred to criminal offences under the Crimes Act and the Copyright Act. Although in this case the MPAA later admitted it was wrong, in a post-FTA environment, the developer's website would have been shut down for over three weeks, and the developer would have no legal recourse against the MPAA for their mistake. EFA is continuing to follow up every possible avenue of redress.
A raft of new and amended criminal offences involving use of the Internet were passed by Federal Parliament mid this year in the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004. While EFA remains concerned about some components of the Bill, we were successful in achieving significant improvements to the proposed laws before the Bill reached Parliament. In a welcome change to the way in which Internet-related laws are often developed, the Attorney-General's Department issued a draft Bill for public comment. Senior representatives of the Department readily agreed to meet with EFA's Executive Director to discuss issues and answer questions prior to EFA sending a written submission on the exposure draft in April 2004.
When the Bill was tabled in Parliament in June, we were pleased to see that the A-G's Department had taken on board a number of EFA's recommendations and also made other changes that appear to satisfactorily resolve some concerns raised by EFA. These involved Internet users' rights and criminal justice; necessary defences for ISPs regarding use of their services by other people; requirement to consider matters such as literary, artistic or educational merit etc in determining whether material is "offensive", and clarification of intent being necessary to determine guilt.
EFA continues to be highly concerned by the new offence criminalising accessing or making available material on Web pages etc that is menacing, harassing or 'offensive'. Although the final Bill included some improvements to those offences recommended by EFA, they are insufficient to resolve our concerns. Among other things, it appears these offences may be used to, at the least, harass political activists, for example people involved in organising anti-WTO demonstrations etc. More detailed information about aspects of ongoing concern is in EFA's submission to the Senate Legal and Constitutional Legislation Committee that conducted an enquiry into the legislation in August 2004.
Search and Seizure
In July 2004 EFA sent a submission to the Inquiry into Entry, Search and Seizure Provisions in Commonwealth Legislation which is being conducted by the Senate Standing Committee for the Scrutiny of Bills for report by March 2005. This inquiry is not examining new legislation, but is a general review of recent Commonwealth legislation in respect of the provisions that authorise the power to stop and search people, and provisions that authorise the seizure of material.
EFA recognises and supports the need to counter criminal use of the Internet. We also accept that in countering such use it may sometimes be necessary to examine private information held by or relating to law-abiding Internet users in order to isolate and identify criminal conduct by others and thereby secure the prosecution and conviction of guilty parties.
It is essential, however, that legislative provisions protect the privacy of law-abiding citizens to the maximum extent possible in the circumstances. We are highly concerned that insufficient attention is given in drafting and enacting legislation to ensuring an appropriate balance between individuals' right not to be "subjected to arbitrary interference with their privacy, family, home or correspondence" (*) and the legitimate needs of law enforcement agencies. (* Article 17 of Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986 (International Covenant on Civil and Political Rights) and Article 12 of the Universal Declaration of Human Rights.)
There is an urgent need for provisions governing the seizure, disclosure and use of information seized from computers, both under search warrant and under a court order, to protect privileged information and information that is irrelevant to alleged infringements of the law.
The extension of the law relating to Anton Piller orders in recent years gives rise to cause for alarm in relation to the protection of the privacy, and physical safety, of law-abiding citizens. There is an urgent need for either changes to court rules and practices, or amendment or enactment of relevant legislation.
Qld Smart Card Driver Licence
In late 2003, the Queensland Government announced a proposal to introduce a Smart Card Driver Licence in place of the existing photo licenses. Other states are likely to follow suit. While this issue is somewhat outside EFA's main areas of interest, it is of concern because of the potential for function creep and for its possible use as a general-purpose ID card.
In November 2003, EFA sent a submission in response to the Queensland Smart Card Driver Licence Proposal issued by Queensland Transport. Our Executive Director, Irene Graham, spoke at a public seminar hosted by the Queensland Council for Civil Liberties on this topic in July 2004. The Qld Government is determined to push ahead with this proposal, and EFA will continue to lobby for improved privacy protections.
In May 2004, EFA sent a submission to the Senate Legal & Constitutional Legislation Committee's inquiry into the provisions of the Surveillance Devices Bill 2004 This legislation has not yet passed, and is primarily directed at regulating police use of surveillance equipment.
In May 2004, EFA made a submission to the Australian Communications Authority ("ACA") in response to the ACA's discussion paper Who's Got Your Number?: Regulating the Use of Telecommunications Customer Information, 14 May 2004, and participated in public discussion forum hosted by the ACA. The ACA's objective is to prepare an industry standard in relation to the use of the Integrated Public Number Database (IPND), and the matter is now due for a second round of public consultation.
EFA has continued its involvement during the year with working committees of the Office of the Federal Privacy Commissioner and with the ENUM Privacy and Security Working Group convened by the Australian Communications Authority.
It has not been possible to cover all of EFA's activities this year in this report, and I would encourage all members to consult the EFA website for additional information.
It has been another busy year for EFA, and our Executive Director, Irene Graham, has again been pivotal to EFA's successful activism and networking amongst legislators, media representatives and industry regulators. Thanks are also due my fellow board members for freely giving their time and expertise throughout the year.
Regrettably, EFA does not have guaranteed funding to continue to employ an Executive Director beyond 2005. In the next 12 months the Board will need to focus on securing additional donations or develop a plan to maintain EFA's public profile and activism on a purely voluntary basis.
EFA will continue to confront the challenges that are thrown out by those in power who have little regard for personal freedom, and we look forward to responding strongly to such challenges in the year ahead.
I thank all EFA members for your continuing support.
Chairperson, Electronic Frontiers Australia Inc
12 November 2004