26th October 2008
No government is ever really in favor of so-called civil rights. It always tries to whittle them down.
They are preserved under all governments, insofar as they survive at all, by special classes of fanatics,
often highly dubious. - H L Mencken
On behalf of the board, I am pleased to present the EFA Annual Report for 2008. It is a necessarily abridged version of EFA's major activities of the last 12 months. Further information can be found on the EFA website.
Less than a fortnight after the previous EFA Annual Report was finalised, the 2007 Australian federal election removed the Coalition from power, after 11 long years. This change in government has been, at best, a mixed blessing: although Labor fulfilled their pre-election commitment to abandon the Coalition's ill-conceived Access Card scheme, they appear determined to fulfill another pre-election commitment - the introduction of mandatory, ISP-based filtering of every Internet connection in Australia, to block material deemed 'inappropriate' or 'harmful to children'. Controversy over Labor's so-called 'Clean Feed' scheme has been simmering since they took power, and will likely reach boiling point in the coming year.
The 'Access Card'
As mentioned, Labor delivered on their pre-election commitment to abandon the Coalition's 'Access Card' scheme - a billion-dollar project to replace the current Medicare card and a number of other benefit and concession cards with a single smartcard-based 'health and social services access card' with a globally unique identifier, using facial biometric identification.
The idea of a national identification card can be traced back to the 'Australia Card' of the mid 1980's. This particular implementation of the idea may be dead, but the idea will almost certainly rear its head again in the future.
The Australian Government Online Services Portal (AGOSP) is a Government initiative to provide single sign-on access to Government services through the australia.gov.au web portal. EFA is not opposed to this initiative but has consulted on several occasions with the Government to ensure that the privacy of citizens is protected. In line with EFA recommendations, providing name and address information on the portal will be optional and it will not be possible to correlate user information from one Government database with another. EFA continues to monitor the progress of the Privacy Impact Assessments of this project. We have been involved in briefing sessions and are committed to providing the Australian Department of Foreign Affairs and Trade with appropriate input and feedback to the negotiating process as more information becomes available.
In March 2008, EFA lodged a submission to the Commonwealth Attorney-General’s Department (AGD), arguing that Australian consumers be given the right to make digital copies of their films, photographs, and computer and video games for their private use. The submission was made in response to the AGD’s review of sections 47J and 110AA of the Copyright Act 1968 (Cth), which currently only permit certain forms of analog to digital and digital to analog copying. For example, the current law allows Australians to digitise a purchased photo once, or to print a purchased digital photo once, or to make a DVD copy of a VHS tape. Unfortunately, the final report recommended that no change be made to Australian private copying exceptions. EFA has been invited, however, to participate in ongoing consultation with the Attorney-General's Department about future developments in the market and technology which may require legislative response.
Anti-Counterfeiting Trade Agreement
June 2008 saw the leaking of some preliminary details of the Anti-Counterfeiting Trade Agreement (ACTA), a secretive multi-lateral international treaty which could see Australia once again pressured to alter its copyright laws in favour of the powerful US copyright lobby. EFA publicly condemned the secretive manner in which negotiations were taking place, arguing that the Australian public has a right to be involved in the development of international agreements which could significantly alter the copyright balance. We were also very concerned about the potential content of such a treaty, which could divert resources of federal police officers and customs officials to enforce civil copyrights. We continue to watch the development of ACTA very closely, and we are very concerned about the possibility that the Australian Government will be pressured into putting the interests of Australian users and creators behind those of US copyright holders. We have been involved in briefing sessions and are committed to providing the Australian Department of Foreign Affairs and Trade with appropriate input and feedback to the negotiating process as more information becomes available.
No Clean Feed
Since its election, the Rudd Government has been pursuing its “Cyber-Safety” policy, the main plank of which is a mandatory “Clean Feed” Internet for all Australian homes and schools. EFA strongly opposes this proposal, which would insert some form of Government censorship between every Australian and the Internet at large. Since January 2008 EFA has been actively organizing opposition to this scheme. EFA has made representations to politicians, appeared in print, radio and online media, and started the nocleanfeed.com campaign website to rally Australian Internet users to the cause. So far we have had much success in raising public awareness, but plan to maintain pressure on the Government by campaigning, working with ISPs, concerned individuals and other activist groups.
R18+ for Computer Games
This year saw EFA renew calls for an R18+ rating for computer games. At least four high profile games were refused classification in 2008, and Australian adults continue to be denied access to legitimate forms of entertainment and artistic expression. The issue has been before the Standing Committee of Attorneys-General (SCAG) several times this year, but little progress has been made so far. With recent studies showing that the average age of Australian gamers is 28, the current regime, which prohibits any games rated above MA15+, is clearly out of touch with reality. This is hurting both adult gamers and the Australian gaming industry, and EFA is calling upon the Commonwealth and State Attorneys-General to remedy the situation by introducing an R18+ rating for video games as soon as possible.
EFA intends to launch a campaign in the near future to help Australian gamers to lobby their State Attorneys-General to introduce an R18+ rating.
Telecommunications Interception and Access
In April 2008, EFA made a submission to the Senate Legal and Constitutional Affairs Committee in relation to the Telecommunications (Interception and Access) Amendment Bill 2008. EFA believed that the Bill would allow blanket authorisation to ASIO and law enforcement agencies to engage in telecommunications interception without meaningful judicial oversight and without adequate safeguards for the privacy of members of the public. The provisions of the Bill were analogous to allowing ASIO and law enforcement agencies to obtain a search warrant which not only authorises them to search the premises identified in the warrant, but any other premises that the suspect is likely to use. The Committee made a number of positive recommendations and these were accepted by the government. When the Bill was debated in the Senate in May, the government deferred the Committee's recommendations relating to an alternative emergency warrant regime for further consideration, and removed the provisions allowing agencies to add devices to device based named person warrants. It is likely that further amendments will be made to this legislation in the near future.
eBay-PayPal Exclusive Dealing
In May 2008, EFA lodged a submission with the Australian Competition and Consumer Commission (ACCC), opposing a recently announced plan by online auction site eBay to require all Australian buyers and sellers to use PayPal for eBay purchases in most circumstances. We were subsequently invited by the ACCC to attend a pre-decision conference in Sydney.
Many eBay buyers and sellers have very valid reasons for preferring not to use PayPal. Their choice of payment method should not be overridden by eBay in the name of commercial expediency or increased profits. EFA believes that eBay’s proposed changes were without any substantive public benefits, and that any public benefits that may result would be outweighed by the harm to competition and consumers resulting from the changes. EFA further believes that eBay’s proposed changes would constitute a misuse of market power, contrary to s 46(1) of the Trade Practices Act 1974. The ACCC issued a draft revocation notice in June and eBay abandoned the proposal before the final notice could be issued. EFA will continue to watch any further moves by eBay which restrict buyer choice.
National Broadband Network
EFA lodged a submission on the National Broadband Network proposal in September 2008 and has been invited to a Senate Select Committee inquiry in Brisbane in November 2008. In our submission we argued that the proposed Fibre To The Node (FTTN) model would most likely grant further monopoly power to Telstra because it would require drastic modifications to Telstra's existing copper infrastructure through which most landline calls to domestic premises are currently carried, modifications which only Telstra would want to perform. We concluded that the benefits of a FTTN network do not outweigh the costs, and a FTTN network should not proceed. However, if an FTTN network is deployed, it is critical that its operator be structurally separated from the telecommunications carriers selling retail services.
Software Freedom Day
On Saturday 20 September 2008, EFA Board Member Colin Jacobs and EFA Chair Dale Clapperton spoke at the Software Freedom Day event Melbourne. Colin spoke on the Rudd government’s current ‘clean feed’ Internet censorship agenda, and presented a comparative analysis of ‘clean feed’ against other Internet censorship regimes around the world. Dale discussed legal and policy issues of importance to open software and open software developers, including copyright, contract, and competition law, including recent cases in Australia and the United States of America, and the development of the secretive and worrying ‘Anti-Counterfeiting Trade Agreement’ (ACTA).
After nearly 10 years involvement with EFA, I have made the difficult decision to stand down from the EFA board. I first became involved in EFA in early 1999, because the Howard-led Coalition government suffered persistent delusions that they could clean up the Internet with legislation and technology. After the Coalition implemented an expensive and ineffective (yet face-saving) censorship scheme, this issue lay largely dormant until resurrected by Labor and used as a relatively minor election commitment in the campaign which ousted Howard. The technology may have improved - somewhat - since 1999, but the bad ideas remain the same, as do the risks to the right of adult Australians to freely communicate over the Internet.
I want to pay special tribute to the efforts in the past year of Mr Colin Jacobs, one of the newest board members of EFA, who has been responsible for much of EFA's work opposing Labor's “clean feed” Internet censorship scheme.
I would also like to note the resignation of two other longstanding figures from the EFA Board: Mr Greg Taylor, our Treasurer, and Mr Kimberley Heitman. Over the year, Greg has undertaken significant changes to the administration procedures of EFA, greatly simplifying the financial and membership management processes and significantly easing our transition to a fully volunteer organisation. Greg was also responsible for migrating the EFA website to a CMS, a move which has allowed for much easier updating and increased participation from visitors. Both Greg and Kim have played longstanding leadership roles in EFA, both having served on the Board for more than a decade, including terms as Chair. Kim was EFA's Chair from 1995 to 2002, and has represented EFA's interests on the auDA board for several years. EFA owes a great debt to both these people, and their presence on the Board will be sorely missed.
I also thank the rest of the Board for their work on behalf of EFA over the past year.