19 November 2006
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."
- H L Mencken
On behalf of the board, I am pleased to present the EFA Annual Report for 2006. This report is a brief snapshot of some of EFA's activities this year. Please browse the EFA website for additional information and feel free to contact the Board with your feedback on any matters that you believe are important.
It has been a busy year for EFA, with heavy demands upon our limited resources. Considerable thanks are due to our Executive Director, Irene Graham, who is responsible for preparing most of EFA's submissions to Parliamentary Committees and government bodies, representing EFA at Committee hearings, and dealing with frequent media enquiries. EFA continues to enjoy a high profile in government and the media, and our views on online issues are sought after and respected.
I also extend particular thanks to EFA's Vice-Chair, Dale Clapperton, who has devoted time and effort to addressing copyright issues on behalf of EFA. With the Commonwealth Government continuing to push through ill-conceived copyright law amendments that damage the rights and freedoms of consumers and creators, this is an area that will continue to require our attention.
The 'Access Card'
The Commonwealth Government's proposal for a so-called 'Access Card' smart card linked to a centralised database containing identification and other information about almost every adult Australian and Australian resident is, of course, of deep concern. EFA's position on use of smartcards depends on the particular model, after taking into consideration a range of matters including whether or not the model is appropriately adapted to serve a legitimate and justified purpose. The currently planned Access Card system does not pass this test. All indications are that the card will also be, or be extremely likely to become, a national identity card.
EFA has made written submissions to the Access Card Consumer and Privacy Taskforce and our Executive Director has met directly with Taskforce representatives regarding the Access Card. This is an issue on which EFA will continue to take a strong stand.
The Department of Communications, Information Technology and the Arts conducted a review of the Spam Act 2003. EFA's submission questioned the effectiveness of the spam laws in reducing receipt of unwanted commercial electronic messages from Australian businesses. While some types of spam have been outlawed and reduced, other types have been legalised and have increased. The Government insists that this spam law is serving Australia well, but EFA will continue to advocate for improvements.
To date, only one prosecution under the Spam Act has been undertaken. The Federal Court held in October 2006 that Clarity1 Pty Ltd had sent over 213 million spam emails in contravention of the Act. Clarity1 Pty Ltd was fined $4.5 million dollars, and Mr Wayne Mansfield was fined $1 million dollars for his involvement in the contravening conduct of Clarity1.
2006, like the preceding year, has been an exceptionally busy one for EFA in the area of intellectual property.
The Copyright Amendment Bill 2006 is currently before the Senate, and if passed in its current form, will have an immense adverse effect on copyright in Australia.
The most objectionable amendments contained in the Bill are to the criminal offences in the Copyright Act. These amendments will extend the operation of the current criminal provisions by creating new criminal offences with lower standards of proof.
These new offences include offences of strict liability. So far as we are aware, no other common-law country in the world has strict liability offences relating to copyright, or is considering their introduction. These changes are not required by the Australia-United States FTA and are, in our opinion, completely unwarranted.
These strict liability offences will be coupled with an "infringement notice" scheme, which will allow police officers to issue "on the spot" fines for alleged contraventions. Recent public statements by the "Australian Federation Against Copyright Theft" tend to suggest that these new criminal provisions are designed to be and will be enforced against every-day Australians for engaging in relatively minor infringing activity, such as making an infringing copy for a friend or workmate.
Despite repeated statements from the Attorney-General's department and other groups representing copyright holders that these criminal laws are targeted at people engaging in commercial-scale infringements (such as selling counterfeit DVDs or computer software at flea markets), the same groups have vehemently opposed narrowing the scope of these provisions so that they will not catch relatively minor infringements which are not carried out for profit.
The Bill is being rushed through Parliament and committee review in a timeframe designed to prevent meaningful public participation and proper consideration of the Bill.
EFA made a written submission to the Senate Legal and Constitutional Affairs Committee on the Bill, and recommended (in part) that the provisions of the Bill which are not required to be passed this year (including the criminal amendments) be deferred until next year to allow adequate time to investigate their effect. While the Labor and Democrats Senators on the Committee also recommended that the criminal provisions be deferred, the Committee as a whole (in which the Liberal-National coalition have a majority) did not recommend deferral of the criminal amendments.
The absurdity of these provisions is evident when you consider that every Australian who possesses a "device" (which would include a PC, an MP3 player, a VCR machine, a photocopier, an iPod, etc) with intent to make an infringing copy is guilty of a criminal offence punishable by up to 5 years jail - even if making the infringing copy is not itself a criminal offence!
We urge you to write to the Senators in your state immediately and ask them to defer the criminal provisions of the Bill until next year. There is still time in which to stop these changes, but you must act now. The Senate will resume sitting on Monday the 27th of November and we expect the Bill to be passed shortly afterwards.
Other provisions of the Bill are also of great concern. The commonwealth Attorney-General's department appears to have backflipped on the drafting of the Technological Protection Measures provisions since the first exposure draft of the Bill was released.
This change in position did not go unnoticed by the Committee, who recommended that the wording of key definitions be changed to more closely resemble the exposure draft, which would also comply with the recommendations of the House of Reps Legal and Constitutional Affairs Committee who previously examined the issue of the TPM provisions.
To briefly update important litigation from last year, EFA in conjunction with the Australian Consumers Association and with assistance from the Communications Law Centre intervened in the Universal Music v Sharman appeal (the Kazaa case). Unfortunately, the parties reached a settlement before the Full Federal Court could deliver their decision on the appeal, leaving the issues raised by EFA undecided. Also, an appeal was heard in Universal Music v Cooper and the judgment is expected late this year.
Back in March 2006, Kim Beazley (Leader of the Federal Opposition) announced in a media release that, if elected, his Government would require all Internet Service Providers to implement a mandatory Internet filtering/blocking system. Apparently, 'everything old is new again', as the proposal looked very much like a hijacking of the Coalition's abandoned policy.
EFA's detailed analysis shows why mandatory ISP filtering would not be effective in protecting children, even if technically feasible and practical. Of course, even if the many practical problems could be overcome to make such a system effective, it raises many questions related to censorship and civil rights. Whilst the Government has so far responded in a sensible fashion, EFA will continue to monitor the issue closely.
The Australian classification system received some attention this year when a computer game dealing with graffiti was banned. EFA once again called for reform of the Australian censorship regime to bring it into line with community expectations. Under current censorship laws, the highest level rating that a computer game may receive is MA15+, whereas films may be classified R18+. This means that films deemed suitable only for adults can be legally sold in Australia, whilst computer games of a similar nature will be banned.
In addition EFA believes that this case illustrates that computer games are held to very different standards than other media not only in law, but in the ratings process, and this indicates a problem with current OFLC handling of computer games, as the a crime such as graffiti would be less likely to merit a rating of MA15+ in other media.
The Commonwealth government's new regime for stored communications warrants has now commenced this year. The new rules governing interception of communications such as email and SMS are not perfect, but they are a big improvement over the previous situation.
EFA has invested a significant amount of effort into advocating for reform in this area and continues to do so. In September this year, the Federal Attorney-General's Department contacted EFA with an invitation to provide EFA's views in relation to implementation of other recommendations in the Blunn Report about regulation of law enforcement access to telecommunications data. EFA's views were subsequently provided. We understand the Government is intending to introduce further legislative amendments this year or early next year, but we do not know what these will be.
The Do Not Call Register Act 2006 was also passed by the Commonwealth Government this year. It will establish a Do Not Call Register, to be administered by the Australian Communications and Media Authority. The Register should be operational in early 2007.
Of course, the establishment of a Do Not Call Register will not of itself adequately arrest the level of level of dissatisfaction within the community about telemarketing activities. EFA has also made submissions on the issue of developing an Industry Standard for the making of telemarketing calls.
With the convergence of telephony and data communications, and advances in Voice-over-IP technology, this is an area which EFA will continue to monitor.
This year saw the introduction of the Telecommunications Amendment (Integrated Public Number Database) Bill 2006 into Federal Parliament. This Bill will improve privacy protection for telephone subscriber information stored in the IPND and will implement a situation substantially similar to that advocated in EFA's July 2005 submission to the ACMA.
Unfortunately however the Government has not addressed a related issue raised in EFA's and other privacy/consumer advocacy groups' submissions. As Sensis does not collect telephone subscriber information for the White Pages from the IPND, but directly from carriers, the Bill will not result in adequate regulation of the use and disclosure of personal information by Sensis and the organisations to which Sensis sells its directory related services/products, nor will it result in a level playing field applicable to public directory producers. EFA considers Sensis should be required to comply with the same rules as any other public directory producer.
EFA relies entirely on membership fees and donations for its income. We have been fortunate in having the backing of a number of donors and we thank them for their support. Funding remains, however, an ongoing challenge and EFA will need to identify further sources of income in order to maintain the level of professional representation that we have enjoyed in recent years.
EFA also relies heavily upon volunteers to carry out its work. These 'pro bono' efforts can be challenging, but also rewarding. There is the satisfaction of making an important contribution and the opportunity to work with high-caliber people on issues that are at the front line of the fight to protect civil liberties.
And finally, thank you to all EFA members for your continuing support.
Chair, Electronic Frontiers Australia Inc
19 November 2006