The Australian Government is introducing legislation to install a  mandatory network level internet filtering system on Australia’s internet; a secretive and automated form of real-time internet censorship.

As discussed in the section on content regulation, the ACMA has little control over internet content which originates from overseas which constitutes the bulk of content in Australia. Sch 5 and 7 of the Broadcasting Services Act 1992 (BSA) prescribes a complaints based take down system for local material or links. When receiving a complaint the Australian Communications and Media Authority decides whether, in its opinion, the Classification Board would, were the content in question to be classified by the Board, be likely to be given a particular classification from RC to certain MA15+

If the content originates from an Australian host, the ACMA can issue a take down or service cessation notice. If the content is accessible via a link on an Australian site, the ACMA can issue a link deletion notice. Within Australia the ACMA has broad powers and internet content hosts have little choice but to respond to notices issued by the ACMA, however very little control over internet material emanating from overseas.

The lack of control over internet content hosted overseas was the inspiration for the mandatory internet filter. Whilst there is universal consensus that child pornography and other harmful material emanating from overseas should be regulated, the important question is will the proposed regime be effective?

The reforms are intended to cover material which extends beyond pornography, however it is a commonly used tactic for a Government to use popular moral outrage tactics relating to child pornography to further hidden agendas.   The problem is that the mandatory internet filter will have little impact on child pornography and has very little to do with child pornography.

The danger is that once the legislation is introduced, the technology could serve as a form of intrusive surveillance and censorship, in addition to serving as a backdoor way of disconnecting suspected copyright violators.  A combination of automated filtering and tougher anti-consumer copyright laws poses a frightening spectre.

Under proposals being introduced into Parliament, the Australian Government is effectively attempting to remotely control the internet.  The proposals, in their present form, could leave Australia with a Government mandated system which monitors every single user search query against a secret list of blacklisted URLs.

The scheme has been introduced under the pretext of  harmonising the content classification regime and protecting Australians from distasteful and harmful content.

Nobody would disagree that child pornography needs to be banned, however even if the Government’s intentions were pure, the proposed regime is flawed.

The justification for regulating internet content differently is that it is a communications medium that deserves special treatment.   However the argument breaks down as we all know we can read newspapers and/or magazines on the internet. Similarly, we can  listen to audio or watch video. In this respect it is similar to any other broadcast or publishing medium.  

The argument that we need to treat the internet as we would any other broadcaster and harmonise censorship laws across all media is misguided.

TV stations, book publishers and movie corporations operate within domestic Australian legal frameworks, and produce a finite amount of content.  By contrast internet content is largely user generated, and those users are engaged in a range of activities such as writing emails, blogging, making videos and publishing in online forums.  If engaging in this activity make us broadcasters, the reasoning is that it also makes us editors, publishers and content hosts.

In one sense internet publishers are not unlike journalists and movie producers, however any attempt to try to fit the architecture of the internet  into the same mould as other publishing mediums risks irreversibly altering it.

When you carefully examine arguments for regulating the internet, it is clear that they are just attempts to regulate what citizens say online. That may be perfectly justified under certain circumstances, however the question is who should be regulating this activity?  Who can be trusted to maintain the system of regulation it once implemented?  Should it be an elected Government or the Judiciary?

The legal  justification for having standards for material on the internet regulated by Governments is questionable.  The rationale for regulating what is broadcast through our airwaves relates to the public nature of the resource.  The internet is not a public resource because it is not limited or finite. The issue of scarcity of spectrum therefore doesn’t arise. The  bandwidth of the airways are limited, which gives the Government a justification for regulating it.

Admittedly the internet, just like print and radio, is a medium of communication.  However it is more analogous to a post office than a newspaper or television station. It is global and instantaneous, a feature which makes it so dynamic, powerful and transformative in nature.

We could enact laws to the effect that the Government open every piece of mail at the post office,  scan it and have a program run through it to determine whether it contains anything prohibited,  distasteful or offensive.  However this is neither desirable or practically feasible. Digital material is produced on an infinitely larger scale than offline material.

Whilst the Government claims 80% of the electorate are in favour of the proposal, there is skepticism about the accuracy of this statistic. The Minister for Communications recently made a startling claim to the effect that trials of the filtering technology proved it was 100% accurate and effective.  Mr Stephen Conroy’s claims to  flawlessness seem a little exaggerated, particularly when Internet Service Providers admit their own scanners are not 100% accurate.  The only way of achieving such a rate of accuracy would be to have a human being manually check and rate each and every webpage.

There is a lack of clarification about what type of content will be blocked or blacklisted under the proposals.  The Minister has assured the public that websites ‘debating‘ issues as opposed to those promoting issues won’t be censored.  The question is how you do you differentiate between a website engaged in debate and one engaged in promotion?   For instance, will informational websites which don’t contain any ongoing debate or instruction about a controversial issue be automatically deemed promotional and be banned?

Furthermore how do you define promotion particularly when it comes to promoting crime and drug used. The Government doesn’t appear to wish to engage in any concrete debate as to how these kinds of questions will be resolved, or how the decision as to what is offensive content will be made.

Will material published for the purpose of merely discussing issues be banned? It wouldn’t be difficult for a publisher to credibly argue that a discussion contains an element of debate.   There is no realistic way of making a bright line distinction between promotion and debate, as in all material  invariably contains an element of social commentary embedded in it.

There has been almost universal condemnation of Australia’s proposed mandatory ISP level filtering system across the world. However the Government seems to have been unresponsive to advice from both industry experts and other Governments concerned about the filter leading to further balkanisation of the internet.

The Australian Government’s attempt to introduce an ISP level filter is something that no other western democracy has ever done, despite claims by the Minister for Communication to the contrary. Filters  in other western democracies have been of an opt-in nature.   The only other countries which have a mandatory filter of the same kind Australia is trying to introduce are Iran, Saudi Arabia and China.

There is also a danger is that mandatory filtering by Australia will be seen as legitimate and acceptable by other countries. Australia could unintentionally become a model for repressive Governments with poor human rights records to start deploying filters to control their citizens.

There is a better case for regulation books and movies in that the standards used are clearly identified by the Classifications Board and are available for everyone to view and evaluate.  This won’t be the case with respect to the material that is subject to the mandatory filter.  The contents will remain secretive.

A non-transparent system is susceptible to abuse, and abuse is likely to go undetected when decisions are made secretly. Decisions will be made selectively and arbitrarily without scrutiny. There is a good argument for functional neutrality when it comes to regulating the internet, but we have to acknowledge that the internet introduces a new dimension to communications in a way no other technology has ever done.

The Government’s proposal involves Internet Service Providers filtering out content
that is identified as prohibited by the Australian Communications and Media Authority (ACMA).  Prohibited content is almost always exclusively about material that is ‘refused classification‘, however there are also additional categories of material that would be subject to filtering.

Many Australians have expressed concern as to who will be deciding what appears on the internet blacklist, who will be monitoring the blacklist, and whether it will ever be made available for public scrutiny.  Concerns have also been voiced regarding how long it might take to have a URL removed from a list.

We all find child pornography abhorrent.  However child pornography is illegal and criminal in nature. Paedophiles and child pornographers don’t routinely submit their ‘works of authorship’  to an Australian classifications board for their stamp of approval.  This reality reveals that there is a lot of propaganda which is blurring the lines between classification which falls into the category of ‘Refused Classification (RC)’ and criminal material. The packaging and promotion of the reforms is part of a strategy to make them more appealing to the electorate.

Concerns have already been raised about innocuous material being accidentally blocked. A list has already been leaked including websites which were put on the blacklist which were innocuous in nature. For instance a Queensland dentist’s website was on the blacklist, along with an Australian tour operator’s website, a boarding kennel website and an anti-abortion website.  The Government continues to insist it’s filter is beyond reproach and doesn’t result in the blocking of harmless websites or websites which are just politically contentious.

The installation of the mandatory internet filter poses a threat to democracy given that there are no assurances against political censorship by future governments.  The availability and maintenance of an unfiltered internet for investigative journalists, reporters and concerned citizens is critical.

The decision to block access to an ‘inappropriate’ content will not be one which is subject to judicial review.  Decisions will be made administratively by a Government agency.  Content will be classified on a clandestine basis, resulting in the  compilation of a website blacklist.  The blacklist will be comprised of a list of static URLs and the decision as to which URLs appear on it would be made unilaterally by an administrative decision making body which is unassailable.  The procedure needs to have some form of review or judicial oversight to satisfy minimum requirements of law.

The Minister says there is a need for greater transparency in decision making as to how internet content will be blocked, but steadfastly refuses to publish the blacklist.
The reason for not publishing the blacklist is that it might provide people with access to the banned material.  If the internet filtering is 100% effective, why would there be a concern about publishing the list of URLs banned? After all, people wouldn’t be able to gain access to the URLs because the filter wouldn’t allow them to. Is there an unspoken concession that the internet filter is therefore not as effective as the Government is claiming it is if the real concern is that people with access to the list might be able to gain access to the banned URLs if it were published?

Combatting harmful cyberthreats by applying a filter to a dynamic medium
such as the internet is analogous to trying to stop intruders entering your home by locking the front door but leaving all the windows open.

The proposal involves filtering a static list of domain name addresses which ignores the fact that the internet is a dynamic medium. It will also slow down internet speed, as the filter will have an impact above 8 bits per second.

IT and industry experts are aware that those involved in pornography are very sophisticated. They change domains within hours, and have become extremely adept in avoiding detection. The blacklist will probably end up being comprised of a list of parked and dormant domains.  A few hundred URLs will be blocked which can be easily bypassed.  The filter will be able to be circumvented by the use of using proxies and  relays by technically savvy users of the internet.

Controversial or contentious websites which operate at the fringe risk getting caught up in the filter and being blacklisted.

High traffic volume websites will remain untouched if excluded from the list.  Offensive youTube material will remain unblocked in the absence of some other agreement to have material taken down.

The truth is that the filter will not target X-rated pornography, the very material which  poses the most danger to children.  Neither will the filter have any efficacy in educating children about other very serious dangers online such as cyberstalking,  cyberbullying, and online predators who engage in internet grooming and prey on the vulnerability of children in internet chatrooms and social networking sites. Nor will the filter address malicious code, viruses, spam, identity theft or other forms of cybercrime.

The only thing this filter is likely to do is to confer a false sense of security upon parents,  which could reduce them monitoring their children’s online activities.  It won’t do anything to educate or protect children from divulging information to online predators or how to protect themselves from cyberbullying or other harmful practices online. The amount of money to be spent on education in the form of useful educational initiatives by the ACMA is slightly less than under the previous proposal. It would be preferable for more money on education than installing a mandatory filter.

There are viable alternatives to the Government’s mandatory filtering proposal.  Client-side filters are more effective than filtering at the ISP level and are available free of charge.  The client-side filters’ technical flaws could be addressed by allowing people to sign up with their ISP for a filtered or unfiltered internet feed. The opt-in filter could still operate at the ISP level but it wouldn’t be mandatory.

Submissions in support of the regime express a preference that the technology remain opt-in.   A dynamic PC based variable scope filter is a superior alternative to the present proposal.

The money invested in the filter could be better spent on  education programs and law enforcement measures, rather than the Government imposing upon the country a government mandated “clean feed”  internet service.

Where a webpage is filtered, no technical system will be able to accurately detect whether it is ‘unacceptable’. This begs the question whether the Government will be maintaining an unfiltered feed to check webpages. It wouldn’t be illogical to assume there may be one internet for the Government and one for everyone else.

The internet,  as a global communications tool,  is for practical purposes becoming something of the past. The internet is becoming a collection of nation state networks,  linked by internet protocols.

Australia’s mandatory internet filter will represent  yet another contribution to the growing phenomenon of balkanisation on the internet.

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  2. Thanks for your encouraging comments. It isn’t intended to be authoritative and is very much still in the nature of a raw unfinished ‘work in progress’….

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  4. pacelegal says:

    Thanks for your very flattering remarks. I am still very much a beginner at this…..However it is an important issue.

    Nobody would disagree with blocking child pornography, but client side blocking technology gives people a choice. There is the further question of all the other types of risks that are posed to kids online.

    The US case of Janet Reno v ACLU discussed a lot of the technical issues regarding blocking as well as the wider philosophical issues. Although it concerned the validity of the Communications Decency Act in the US, it provides a useful discussion of the issues at stake.

    I believe that any form of internet censorship or ‘filtering’ should be a joint exercise involving parental control. There are many other threats out there in cyberspace that can’t be resolved simply by blocking a list of static URLs. Of course the values of the coder will always be expressed within the software solution. I agree that a lot of the serious threats come from spam, viruses, and predators who engage in grooming behaviour in internet chat rooms.

    I’d be interested to know how you decide upon what is inappropriate from a technical point of view. There is a massive amount of information out there on the web, being added to by the day. The logistics of it must be difficult.

    Thanks again

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  7. What I wouldnt give to have a debate with you about this.  You just say so many things that come from nowhere that Im pretty sure Id have a fair shot.  Your blog is great visually, I mean people wont be bored.  But others who can see past the videos and the layout wont be so impressed with your generic understanding of this topic.

  8. pacelegal says:

    Thanks for your comments. I invite debate especially from informed people stating their opinion. What I am write, as you point out, are merely my opinions. I try to support my arguments with authority and don’t just seek to put controversial opinions forward. If you have specific disagreements on issues pertaining to mandatory filtering or anything else, by all means put them forward. I am not too fussed with layouts of websites or look and feel so I am not aiming for anything special, only something comfortable to read. I don’t have videos. Think you might have my site mixed up with another. I look forward to hearing your views.

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    I hope you find what you want for your search terms, although be careful in the online world of credit lending.

  12. Bud Peschel says:

    You made some good points there. I did a search on the topic and found most people will agree with your blog.

  13. pacelegal says:

    Hi Bud,

    Thanks for your comments. It appears that most people who have thought about the issues and understand the technicalities are against the idea of a mandatory internet filter. This initiative won’t do anything to stop child pornography, and resources to fight it are better spent elsewhere. All of the evidence suggests it doesn’t make sense from any perspective.

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