These comments on "Consultation Paper on the Regulation of On-line
Information Services" were written by the ACS/EFA Joint Task Force
(JTF).  They are being publicly released so that others may use them
as background in developing their own submissions.

>   CONSULTATION PAPER ON THE REGULATION OF ON-LINE INFORMATION SERVICES

Note: the quoted text (lines starting >) is, except where noted, from
<http://www.dca.gov.au/paper_2.html>.  EFA has been granted permission
to redistribute the consultation paper provided its source is acknowledged.

>   7 JULY 1995

The Government's decision to consult the community is welcome.
Particularly welcome is the decision to make the consultation paper
available on-line and accept comments by e-mail.

>     INTRODUCTION
>
>    There is community concern over the availability of offensive material
>    from on- line information systems such as computer bulletin boards
>    (BBS) and the Internet. In November 1993 the Minister for
>    Communications and the Arts and the Attorney-General established the
>    Computer Bulletin Board Task Force to examine the regulatory options

It is not proven that regulation is the answer.  Given the terms of
reference of the BBS Task Force, they were constrained to come up with
a regulatory solution.  However since the group behind this
consultation paper (Information and Communications Services Policy
Group) don't have any terms of reference, the JTF strongly suggests
that the Policy Group look at other solutions.

>    for BBS. This consultation paper proposes a framework that builds on
>    the work of the Task Force while recognising the need to address the
>    problems in relation to a wider range of services.

Unfortunately the BBS TF proposals for BBS regulation are not
appropriate for Internet services since such regulation of the Internet
will not work.

The community concern cannot be addressed by regulation.  Policing of
any sanctions beyond the current criminal law will prove impractical.
Education and public training through schools and TAFE colleges, and
government encouragement of wider community access to the Internet will
assist the Australian public to better use the resources available.

>    Recent Government initiatives in communications are directed at
>    ensuring Australia is positioned to take advantage of the
>    opportunities provided by the new on-line services. On 6 April 1995
>    the Prime Minister, Mr Keating, announced the Government's decision to
>    implement a national strategy aimed at the adoption of new information
>    and communications services and technologies. Issues concerned with
>    the content of these new services, including those issues of
>    censorship, are being considered in that context.
>
>    Many of the concerns arising from the BBS context are also relevant to
>    other on- line services such as the Internet. There is a clear need
>    for a consistent approach in the regulation of content that is
>    available through various media sources.

The comparison between BBS operations and Internet access providers make
a consistent approach technically naive.  A BBS is typically operated at
one site containing all data and programs available to users.  An
internet access provider operates a gateway for users to explore a world
of information, arriving into Australia at a speed which defies preview.

The differences in the technology involved mean that while the type of
regulation proposed in the paper could work for traditional type BBS it
just won't work for the Internet.

The comparison between Television, Video, CD, Radio and magazine
regulation and an Internet access provider's obligations is fallacious.
The Internet is a multi-cast network, with transmission of information
occurring simultaneously from any number of sites.  No one site is
responsible for the material that may be accessed through it, and the
site operator does not have any knowledge of what material the user is
obtaining as a matter of course.

>    The regulatory regime to be applied to these new services should be

It is important to realise that in the case of the Internet the new
services provide access, not content.  The content comes from all over
the world.  Most of the content available via the Internet is outside
the control of anyone in Australia.

>    able to meet a number of potentially competing objectives. These
>    include:
>      * protecting freedom of expression, especially with regard to
>        private communication between adults;

The JTF applauds this objective.

>      * limiting children's exposure to harmful or unsuitable material;

Given the nature of the technology involved this can not be done at a
national level, but can be done at the point of access to the Internet.
This objective should be the responsibility of parents and teachers, not
of the state.  The role of government should be limited to providing
advice.

>      * supporting the development of new services that enhance
>        Australia's competitiveness;

The JTF applauds this objective, but points out that the type of regulation
proposed in this paper will actively hinder the development of new
services.

There is a parallel with another embryonic industry that well meaning
censorship attempts by Australian Government effectively killed, the
FILM Industry.  Is it not possible that with the current Multimedia $M
budgets the left had has lost sight of the right here?

Censorship CAN and HAS ensured Australia not only missed the boat BUT
exported its best and brightest to work in the field but under other
flags.  Then paid others for imports to see that which regulation
prohibited from being made in Australia.  The same CAN happen again.

>      * ensuring that emerging service industries are not burdened with
>        unnecessary costs; and

And again the JTF applauds this objective.

>      * aligning censorship regimes for new services with the regimes that
>        have been adopted for other media.

If there is to be regulation and regulation were possible the JTF would
agree.  However the technology is such that the state can not regulate
it effectively, but individuals can.  This objective is also at odds
with all of the others except "limiting children's exposure".  However
no amount of Australian regulation is going to limit children's exposure
on the Internet since some 99% of harmful and unsuitable material is
located outside Australia.

>    To achieve these objectives a self-regulatory scheme for on-line
>    information services is proposed, reinforced by an education program
>    and legislative sanctions to enhance its effectiveness. This strategy
>    will incorporate:
>      * an effective self-regulatory scheme including a code of practice
>        and complaints procedure;

Self-regulation for whom?  Access providers? - there is nothing
effective they can do to control what people have access to.  Content
providers? - Australian content is perhaps 1% of the content that is
available on the Internet.

This strategy has not been funded and has not been the subject of any
attempts by government to develop.  While the strategy may have merit,
the absence of genuine consultation makes it appear designed to be a
failure.

>      * a comprehensive education strategy; and

The JTF is strongly in favour of such a strategy, provided it is focused on
giving parents and teachers the ability to control what children in
their care have access to.

However no funding has been provided for education, and there is no
discussion of whether adult education, public access or parental
control are to be part of the "comprehensive" education strategy.

The range of proposals above are inevitably going to lead to the blunt
instrument of the criminal law as the governments of Australia's only
response to the Internet.

>      * the introduction of appropriate offence provisions.
>
>    In the future, it is likely that consideration will be given to
>    applying the proposed regulation system, or some adaptation of it, to
>    other services. The ongoing development of new technologies,
>    particularly in relation to broadband services, will provide the
>    capability to deliver to consumers content in a form (eg full motion

Such thinking ("deliver to consumers") will strangle broad band at
birth.

>    video) that at present is only available through the broadcasting
>    medium. Some of the issues that exist in the regulation of broadcast
>    content will also become relevant as on-line information services
>    develop. The concerns relating to content regulation for on-line
>    computer-based information services should not be seen in isolation.
>
>    The final report of the Government's Broadband Services Expert Group,
>    Networking Australia's Future

The printed version of the paper says at this point:

>    (available on the Department of Communications and Art's home page:
>    http://www.doc.gov.au),

Such a site does not exist.  What hope have we if the authors of the
paper can't even get the URL for their own home page right?  It should
be <http://www.dca.gov.au>.

>    pointed out that as communications and
>    information networks become more sophisticated, we can expect complex
>    channels to develop for the circulation for information and for
>    interpersonal communication. Such developments will increase the cost
>    of comprehensive regulation of the flow of information as virtual
>    gateways and outlets proliferate in response to greater
>    interconnectivity. It will be difficult to restrict users' access to
>    sites with contentious material, especially when sites are outside
>    Australia (p69).

The JTF applauds the authors for acknowledging this point.  It is for
this very reason that Australian regulation of the Internet will not
limit children's exposure to harmful or unsuitable material.  The
difficulties are such that short of pulling the plug, it will be
impossible to restrict access by regulation, but simple using next
generation net access clients under users or parents control.

>    Networking Australia's Future recommended that existing classification
>    systems be applied to equivalent material commercially available on
>    the new (broadband) networks. While on-line computer-based information
>    systems will encompass both broadband and narrowband services, the
>    application of existing classification systems should be as consistent
>    as practicable. The rapidly changing structure of information networks
>    and service industries also suggests that a technologically specific
>    approach to the problem is likely to be quickly out of date.
>
>    Submissions on the proposed strategy are invited not only on the
>    application of the proposed scheme to BBS, but also whether it is an
>    appropriate system for application to the wider range of on-line
>    information services.

In a word "no" it is not appropriate for application to other networks.
See below for the JTF's comments on the term "on-line information services".

>   BACKGROUND
>
>     Bulletin Board Task Force Report
>
>    This paper should be read in the context of the Report of the Bulletin
>    Board Systems Task Force, Regulation of Computer Bulletin Board
>    Systems ('the Report'), which was made public on 5 October 1994.

The printed version says at this point:

>    A copy of the Report is available throught the Australian
>    Government Bookshops and on the Internet at http://www.doc.gov.au.

Again there's that non existent web site!  The correct URL for the BBS
TF report is <http://www.doc.gov.au/bulletin_board/report.htm>.

The ACS, EFA and other bodies have previously requested that the BBS TF
Report be made available on-line.  It is good to see the Government
responding, if somewhat belatedly.

>    The Task Force's Terms of Reference, which were confined to developing
>    a system of regulation for BBS, are set out at attachment A.
>
>    The Report identified a number of options to regulate the content of
>    material distributed by BBS. These included:
>      * development and adoption of guidelines by the BBS community with a
>        complaints based system of enforcement;
>
>      * application of partial classification to BBS by prohibiting
>        material which would be 'refused classification' and developing
>        formal guidelines for dealing with 'restricted classification'
>        material. No compulsory classification would be required;
>
>      * application of partial classification together with a legal
>        obligation on BBS operators regarding 'restricted classification'
>        material; and,
>
>      * application of full classification to BBS including compulsory
>        classification;

Given the extent to which regulation is seen as the answer it is
interesting to note that the only option from the BBS TF report that is
missing from the above list is the "Do nothing" option.  In terms of
regulation, do nothing is the only sensible alternative.  Approaches
other than regulation should be used.

>    The Task Force also set out possible offence provisions for the
>    partial application of the existing classification scheme.
>
>     Consideration of the Task Force Report
>
>    The options in the Task Force Report have been considered by
>    Commonwealth, State and Territory Censorship Ministers. Ministers have
>    requested that further consultation take place with industry and the
>    community with regard to the Task Force proposals for dealing with
>    BBS. The following proposal is put forward as part of the consultative
>    process in relation to a wider range of services but is not intended
>    to preclude comment on other means of dealing with the problem or on
>    specific technologies and services.

This is welcome.  The JTF points out that other approaches must be
considered because regulation will not achive the desired results.

>     It is stressed that no Government, Commonwealth, State or Territory
>    has made a decision on the matter or on the proposals that follow.
>    They are put forward for consultation purposes only.

This is welcome news.  Nontheless, more than two State governments have
announced that legislation will be introduced before the responses to
this consultation paper could even be collated.

EFA will be working to ensure that the argument that regulation won't
work is put often and well by many, many people.

>     Censorship in Australia
>
>    The proposed regulatory regime relies on the application of the
>    classification scheme that currently applies to computer games, films
>    and publications, to material transmitted through, or available from,
>    on-line information services.

This is nonsense in a multicast medium. Virtually all of the material
"transmitted through" online information services comes from sites
overseas and entirely beyond the reach of such a scheme.  Material
produced in Australia is mostly text messages, but still at a volume
incapable of being read by any number of censors.

>    Censorship of publications, films and computer games in Australia is a
>    co- operative scheme involving the Commonwealth, States and
>    Territories. The current legislative scheme is being extensively
>    revised and the Commonwealth's contribution to the new scheme, the
>    Classification (Publications, Films and Computer Games) Act 1995, has
>    recently been passed by the Federal Parliament.
>
>    Under the current scheme, the Commonwealth, through the Censorship
>    Board and the Office of Film and Literature Classification, classifies
>    publications (with certain exceptions), films and computer games on
>    behalf of the States and Territories. Classification decisions are
>    made in accordance with legislative criteria and guidelines agreed to
>    by Commonwealth, State and Territory Censorship Ministers. Further,
>    classification decisions are to give effect, as far as possible, to
>    the following principles:
>
>    (a) adults should be able to read, hear and see what they want;
>
>    (b) minors should be protected from material likely to harm or disturb
>    them;
>
>    (c) everyone should be protected from exposure to unsolicited material
>    that they find offensive; and
>
>    (d) the need to take account of community concerns about:
>
>     1. depictions that condone or incite violence, particularly sexual
>        violence; and
>     2. the portrayal of persons in a demeaning manner.
>
>    Under the Commonwealth, State and Territory scheme, State and
>    Territory legislation contains offences for the possession of refused
>    classification material for the purposes of publication, sale or hire
>    and possession of child pornography. There are also offences relating
>    to publication of restricted material contrary to the conditions
>    attached to the classification accorded to that material.
>
>    While publications, films and computers are the subject of a formal
>    legislative structure, the system is also drawn upon to determine
>    classifications given to material in other media. The classification
>    guidelines are the basis for the classification codes for free to air
>    television and also apply to Pay TV. The aim of this approach has been
>    to achieve consistency in the classification of similar material
>    across different media. The method of achieving this end, however,
>    varies according to the media involved. Consistent with this approach,
>    the question arises as to how the current system can be utilised in
>    relation to on-line information services.

Calling electronic networks "on-line information services" is like
calling a telephone network an "audio information service" because one
can access 0055 numbers using the network.  In terms of the question
"how can the current system be utilised"?  It can't since most of the
content available comes from outside this jurisdiction.

>   PROPOSED STRATEGY FOR REGULATION
>
>    Outline
>
>    The proposed strategy has three key elements:
>      * a self-regulatory framework incorporating a code of practice and a
>        complaints handling procedure,
>
>      * an education component that could use services such as the
>        Education Network Australian initiative(EdNA) to assist parents
>        and teachers in protecting children from unsuitable material, and

Very good!  However as the answer must lie with parents and teachers, much
more that three lines needs to be said on this.

>      * the introduction of offence provisions to provide sanctions
>        against persons who deliberately breach community standards.

Who's community standards?  Australian?  Saudi?  Tennesee?  If we are
going to live in a global information village we are going to have to
live with a wide diversity of "community standards".

>     Self-regulation
>
>    Regard for prevailing community standards, through self-regulation,
>    will be encouraged through the voluntary application of classification
>    standards, codes of practice and the introduction of a complaints
>    process. This approach will be consistent with the classification
>    framework that currently exists in Australia.
>
>    The development of self-regulation will mean that there will not be a
>    need for compulsory or formal classification of material on on-line
>    information services by the Office of Film and Literature
>    Classification. Instead, a code of practice will include guidelines
>    developed in consultation with industry and the community.

The idea that there is material on "on-line information services" which
could be classified in Australia betrays a fundamental lack of
understanding of what the Internet is.  What material is being talked of
here?  In the future it is likely that less that 1% of material
accessible will be material that is in Australia and subject to
Australian regulation.

>    These guidelines would apply to material corresponding to the refused
>    classification category and the restricted classification category
>    (eg. the <R> classification for films) with provision for sanctions
>    for non-compliance with the code. A sanction could be, for example,
>    cancellation of membership of the relevant organisation or the removal
>    of industry accreditation, if an accreditation scheme is introduced.
>    Submissions are encouraged to address the point of what sanctions
>    would be appropriate and effective to deal with non-compliance with
>    guidelines.

No sanctions would be effective.  All they would do would be to drive
operators offshore.  Even if all Australian content were regulated out
of existence there would still be orders of magnitude more content
outside of Australia that is beyond the reach of Australian regulation.

>    To provide an incentive for self-regulation, the proposed offence
>    provisions will recognise adherence to an approved code of practice as
>    evidence that a person has taken all reasonable steps to control the
>    existence or transmission of objectionable material. This will
>    encourage on-line information service providers, and their
>    representative bodies, to develop and implement appropriate procedures
>    under a code of practice.

There are no reasonable steps that can be taken to control the
transmission of objectionable material over the Internet.

>    The proposed establishment of a single and independent complaints
>    handling body will be an important part of an effective self
>    regulatory framework. This body would handle complaints that had
>    failed to be resolved following a direct approach to a service
>    provider or system operator. The level of industry and government
>    support for the complaints handling body will need to be determined,
>    in consultation with the relevant industry and community groups.
>
>    The objective of the complaints mechanism will be to resolve
>    complaints about material available through the networks before
>    resorting to any offence provision. It is proposed that the complaints
>    handling body would operate as an independent body to ensure public
>    acceptance and confidence. There will also be a need to ensure
>    standards applied by the complaints handling body reflect prevailing
>    community standards as recognised in the classification standards
>    applied by the Office of Film and Literature Classification for film
>    and video and codes of practice in force for television.

This is just so parochial that it is hard to believe.  This approach
will place unnecessary burdens on service provicers, deflect
responsibility from individuals and parents and will not restrict
access to "objectionable material" which will still be available from
overseas.

In an era of "privitisation" this proposal is really bizzar.  There are
technical solutions which will soon allow individuals and parents to
subscribe to the rating agency of their choice.  Infact such technology
could also be applied to television, both free to air and cable.

>     Education strategy
>
>    The education strategy will address the major concern of access by
>    children to inappropriate material. The development of advice to
>    schools and parents on the measures that are available to manage

Yes, this is all that is needed and all that will be effective.  The
only effect that the regulatory proposals will have is to harm
Australian interests.

>    access to on-line services, and the implementation of safeguards by
>    Government education agencies will provide an effective approach to
>    the problem.
>
>    In relation to the need for regulation of educational material, it
>    might be appropriate that the Ministerial Council of Employment,
>    Education, Training and Youth Affairs (MCEETYA) consider supporting
>    measures to develop advice to schools and parents on mechanisms to
>    manage access to on-line services.
>
>    A possible approach might be the development of an accreditation
>    scheme for organisations and businesses providing properly monitored
>    information services to schools. Accreditation would provide an
>    effective mechanism for schools to identify service providers that
>    meet their specific education requirements. This information could
>    also be useful to parents in meeting the entertainment requirements of
>    their children.
>
>    It may be possible to design computer network systems servicing the
>    education sector to give educational institutions the choice of
>    limiting the kinds of material students can access. This will be an
>    important issue in considering services to be provided by the proposed
>    Education Network Australia (EdNA) initiative. The issue of control of
>    unsuitable material will be an important issue to be considered by the
>    governing body of the network.
>
>     Offence provisions
>
>    The proposed offence provisions do not introduce liability for
>    operators of on-line information services for all material that passes
>    through their systems. However, to avoid liability in circumstances
>    where objectionable material has been found and is available for
>    access through the telecommunications network, operators of on-line
>    information services would need to be able to show that they took
>    reasonable steps to avoid a contravention of the offence provisions.
>
>    These steps may include compliance with a code of practice in relation
>    to procedures for dealing with objectionable material.
>
>    The emphasis of the proposal is on self-regulation to harness the self
>    regulatory ethos already evident from the conduct of many of the
>    participants in the new technologies. However, in recognition that in
>    some cases a person may not abide by the rules, the ultimate sanction
>    of an offence provision is included. This approach is consistent with
>    that adopted for other media. The inclusion of offence provisions
>    reflects the view that, notwithstanding practical enforcement
>    difficulties, authorities still need to have a means to ensure
>    compliance with community standards by those who deliberately set out
>    to abuse the system. See attachment B for the proposed offence
>    provisions and further commentary on their operation.

The proposed regulatory system will be sidesteped by those it is amied
at, and will harm those it is not aimed at.

It is unfortunate to see so empty a reason to make unenforceable laws in
an official document.  If the "rules" are nonsense, they will not be
made less so by imprisoning a representaive site operator every so
often.  More importantly, legislation which prima facie makes a site
operator liable to prison for offences outside his or her control will
destroy the Australian industry, with consequent loss of user access,
technical know-how and jobs.

>   SCOPE OF THE NEW SCHEME
>
>    A definition of 'an on-line information service' is included in the
>    offence provisions set out at attachment B. The definition is in the
>    following terms: 'an on-line information service' means a system of
>    stored information accessed by computer through the use of a
>    telecommunications network which allows a bi-directional transfer of
>    files or messages between the user and the system'.

Such as a Coles' cash register. In attempting to have a definition which
encompasses both the amateur BBS and commercial internet providers, the
context has been lost. By all means regulate file transfers from BBSs or
overseas web page access from Australian internet sites, but the two
must be treated differently. There is a wide range of online services,
with different levels of control by operators, and different potential
abuses.

>    It should be noted that the proposed offence provisions in the Task
>    force report applied to 'computer bulletin boards'.  Subsequent to the
>    release of the report the focus of community concern has shifted to a
>    wider range of on-line information services. The consultation paper
>    adopts the term 'on-line information service' in place of the more
>    narrow term BBS.
>
>    Despite this change in terminology there is still an issue whether the
>    scope of the definition is appropriate. Questions arise as to whether
>    there are other systems that should also be specifically excluded or
>    included and, if so, what are they? If systems are to be exempted or
>    included, what are the justifications for doing so?
>
>    The proposed offence provisions are set out at Attachment B.
>
>    It is recognised that there are a number of practical concerns about
>    the introduction of offence provisions, specifically:
>      * that system operators and users will be liable for objectionable
>        material that is passing through or stored on their equipment
>        without their knowledge or intent; and
>
>      * that offence provisions will be difficult to enforce.
>
>    The offence provisions that are proposed in this consultation paper
>    will address these concerns by ensuring system operators will not be
>    liable:
>      * where they follow the guidelines or code of practice developed for
>        the management of objectionable material or restricted material on
>        their system; or
>
>      * where they take reasonable steps to avoid a contravention.

Will this then make them libable in other respects?  What if a user
libels someone else.  Will it be possible to take the provider to the
cleaners because they were exercising some level of editorial control
over the content?  If this is so then the effect of this regulation will
be to drive many access providers out of the market, force up prices to
the consumer, and still not achieve its objective of preventing minors
from gaining access to objectionable material.

>    Systems operators and users will not be liable where:
>      * they reasonably believed that the material in question was not
>        objectionable material as defined; or
>
>      * they reasonably believed that the material in question was
>        restricted material that fell within a certain level of
>        classification and they took reasonable steps to deal with the
>        material as required for that level of classification.
>
>    The aim of the proposed offence provisions is not to make system
>    operators or service providers liable for objectionable material that
>    has passed through their service or their data base where it can be
>    demonstrated that they have taken all reasonable precautions to
>    prevent that occurring. For example, compliance with an approved code
>    of practice would be evidence of the taking of such reasonable
>    precautions. The code would be determined in consultation with the
>    community and the industry and taking into account any relevant
>    research.

Accordingly, the failure of any government to consult with the industry
as to whether such a strategy is desirable or to conduct any research
into whether the perceived abuses are widespread enough to justify
regulation makes the above an empty platitude.

The damage caused by ill-conceived legislation will not be reduced by
the sentiments of reluctance expressed on its passing, given the other
options proposed will fail unless funded.

>    The development of a self regulatory framework and the establishment
>    of complaints handling procedures to manage the less serious breaches
>    of the code will allow law enforcement agencies to direct their
>    efforts at the more serious offenders who are deliberately providing
>    offensive material to the general community, particularly children.

What offenders?  If there were no code the police would not have to be
involved in policing it and could devote all their time to chasing real
criminals.

>    Comments on the above and related issues are particularly welcome.
>
>   SUBMISSIONS INVITED

The comments on each point below are in brief.  For EFA's full comments
see EFA's submission.

>    Comments are sought on any of the matters raised on the Consultation
>    Paper and on all or any of the following points:
>      * whether the overall scheme is appropriate for regulating on-line
>        information services;

No.  Regulation is the wrong approach.  Community education, adequately
funded, is the only desirable response.

>      * if it is not appropriate, any other available means for regulation
>        of BBS;

Regulation is the wrong approach.  The existing criminal law has proved
quite sufficient to deal with serious breaches by BBSs.

>      * whether the definition of "on-line information service" is too
>        narrow or too broad;

The definition is technically incompetant.

>      * the role of the education strategy in informing parents, teachers
>        and children about on-line information services and the ways of
>        addressing possible problems;

Yes, but must go futher in developing this one.  The US government has
produced pamphlets. Australian governments have yet to demonstrate even
that level of commitment to education.

>      * non-criminal sanctions that could be applied for non-compliance
>        with a code of practice;

Market forces.  A service provider prepared to warrant that there is no
objectionable material available through his or her system would enjoy a
considerable market advantage.  Given that regulation won't work, a code
of practice is not needed.

>      * a complaints mechanism and possible establishment of an
>        independent complaints handling body;

Unless fully funded, this strategy cannot make any impact.  Most BBSs
are amateur and have little to gain from industry affiliation.  The
volume of complaints for non-compliance with a code by amateur BBS and
hobbyist internet systems would be huge, although the actual harm done
by such systems would be minimal.

>      * issues arising from the practical implementation of the proposed
>        offence provisions; and

What "practical"?  It's impractical, unworkable, won't achive its
desired result, and will have many adverse consequences.

>      * any other matters that may be relevant.

The consultation paper is ten years behind the times.  By the time the
proposals could be implemented, technical solutions will emerge to both
circumvent any legislation and provide parents with more control over
the material their child can access.

The desired result of protecting children can be achieved by empowering
parents and teachers.  Such an approach will be effective, regulation
will not.  Such an approach will not have adverse consequences,
regulation will.

"The Internet treats censorship like damage, and automatically routes
around it".

If the government wishes to reduce abuse of online services, it needs
merely to encourage more people to use them. Community standards are
more likely to apply in a medium to which the whole of the community has
informed access.

>    Submissions should be forwarded to:
>
>    Information and Communications Services Policy Group
>    Department of Communications and the Arts
>    PO Box 2154
>    CANBERRA ACT 2601
>
>    or, by email, to consult@dca.gov.au

The JTF applauds the Policy Group for providing an email address for
submissions.

>    Submissions are requested by 1 September 1995.
>
>     Attachment A
>
>   TASK FORCE TERMS OF REFERENCE
>
>    The Task Force was directed to consider options for developing a
>    system of regulation of BBS that would:
>      * allow users, parents and guardians to make informed entertainment
>        choices for themselves and those in their care; and
>
>      * provide adequate protection to children from material that might
>        otherwise harm or disturb.
>
>    The Task Force was also directed to examine the adequacy of existing
>    laws to deal with the misuse of the technology. Specifically, it was
>    to assess whether:
>      * existing Commonwealth offences covering the misuse of computers
>        and telecommunications services are adequate to deal with BBS
>        abuse;
>
>      * import/export restrictions are capable of controlling the
>        international trafficking and subsequent copying and distribution
>        of otherwise banned material;
>
>      * State and Territory laws, such as those dealing with the misuse of
>        computers and possession of child pornography, are adequate to
>        deal with BBS;
>
>      * current law enforcement tools are adequate to deal with the new
>        technology; and
>
>      * specific offences ought to be enacted, for example, in relation to
>        the use of BBS by paedophiles or for other unlawful purposes.
>
>     Attachment B
>
>
>
>   COMMENTARY ON POSSIBLE OFFENCES RELATING TO USE OF AN ON-LINE INFORMATION
>   SERVICE
>
>    Before reading the offence provisions it is important to note there is
>    no intention to prosecute operators who act in good faith and maintain
>    an adequate system for dealing with objectionable or restricted
>    material. Operators who conduct their systems responsibly and with a
>    sufficient number of internal controls (determined, for example, by
>    reference to the code of practice or prevailing standards and
>    technology) should not be liable to criminal sanction. Criminal
>    sanctions are aimed at those people, both operators and users, who
>    culpably breach the standards that are set regarding material that
>    they transmit or advertise, or those who fail or refuse to exercise
>    any effective controls over material that is publicly available
>    through their information services.

It is good to see an acknowledgement that operators should not be held
liable for that over which they have no control.  However the way this
is worded will still make them liable becuase they have to have an
adequate system for dealing with objectionable material.  If there is no
adequate way of doing it they will be inbreach of the requirement and
will be liable.

>    Readers should also note that the defences provided are broad. A
>    defendant who had objectionable material placed on his or her board
>    without his or her knowledge and consent could, for example, argue
>    that he or she is not liable as he or she had obtained undertakings
>    from users that certain types of material would not be posted or
>    posted inappropriately. The defendant may also be able to demonstrate
>    that they had conducted random checks of material available through
>    their information service.

Will such random checks amount to editorial control?  If so they will be
making them selves liable in other ways.

>    Readers should refer to section 7 at the end of this document for the
>    definitions of an on-line information service and of objectionable
>    material and restricted material.
>
>
>
>   OUTLINE OF POSSIBLE OFFENCES RELATING TO USE OF AN ON- LINE INFORMATION
>   SERVICE
>
>     Objectionable material
>
>    Section 1 - No transmission or advertising of objectionable material
>     1. A person must not use an on-line information service to:
>
>        (a) transmit objectionable material; or
>
>        (b) advertise objectionable material as being available for
>        transmission.
>
>     2. It is a defence to a prosecution for an offence against subsection
>        (1) to prove that the defendant believed on reasonable grounds
>        that the material was not objectionable material.

"Transmit" is far wider than "publish". No site operator can know on
reasonable grounds whether or not the material accessable through the
site is objectionable or not. No site operator can stop users from
accessing objectionable material if they are determined to do so.

>    Section 2 - Objectionable material not to be made available to other
>    persons
>     1. A person must not have objectionable material on an on-line
>        information service under his or her control if that material is
>        available to other persons for access and retrieval from that
>        service.

Many parts of a system are under "his or her control" but not written to
or viewed by the operator. These include web and memory caches, email
and users' directories and a newsgroups news spool.

>     2. It is a defence to a prosecution for an offence against subsection
>        (1) to prove that:
>
>        (a) the defendant complied with a industry code of practice in
>        relation to procedures for dealing with objectionable material
>        posted on an on- line information service;
>
>        (b) the defendant, or the defendant's employee or agent (as the
>        case may be) took reasonable steps in the circumstances to avoid a
>        contravention of subsection (1); or
>
>        (c) the defendant believed on reasonable grounds that the material
>        was not objectionable material.
>
>     Restricted material
>
>    Section 3 - Restricted material not to be made available to certain
>    persons under 18
>
>    Restricted material which is unsuitable:
>
>    (a) for a person under 18 to see, read, or play must not be made
>    available to persons under 18; or
>
>    (b) for a person under 15 to see, read or play must not be made
>    available to a person who is under 15 years of age without the consent
>    of his or her parent or guardian.

System administrators are not the country's nannies.  They do not have
the resources to track the usage of every user, and the use of a user's
account must remain the responsibility of the user.

>    Section 4 - Offence of transmitting to or adverting restricted
>    material as available to certain persons under 18
>     1. A person must not use an on-line information service:
>
>        (a) to transmit restricted material; or
>
>        (b) to advertise restricted material as being available for
>        transmission in a manner which breaches section 3.
>
>     2. It is a defence to a prosecution for an offence against subsection
>        (1) to prove that the defendant, or the defendant's employee or
>        agent (as the case may be) believed on reasonable grounds that the
>        material fell within a level of classification and took reasonable
>        steps in the circumstances to ensure that the material was dealt
>        with in accordance with section 3.
>
>    Section 5 - Offence of making restricted material available to certain
>    persons under 18 on an on-line information service
>     1. A person must not have restricted material on an on-line
>        information service under this or her control if that material is
>        available to other persons for access and retrieval from that
>        service in a manner which breaches section 3.
>     2. It is a defence to a prosecution for an offence against subsection
>        (1) to prove that the defendant, or the defendant's employee or
>        agent (as the case may be):
>
>        (a) was unaware of the existence of the material and took all
>        reasonable steps in the circumstances to avoid a contravention of
>        section 3; or
>
>        (b) if applicable, complied with a code of practice in relation to
>        procedures for dealing with restricted material posted on an
>        on-line information service.
>
>     3. It is a defence to a prosecution for an offence against subsection
>        (1) to prove that:
>
>        (a) the material had been classified prior to the commission of
>        the alleged offence; and,
>
>        (b) the defendant, or the defendant's employee or agent (as the
>        case may be) took reasonable steps in the circumstances to ensure
>        that the material was dealt with in accordance with the conditions
>        attached to that level of classification.
>
>    Section 6 - Commencement of proceedings
>
>    Proceedings for an offence under subsections 1(1), 2(1), 4(1) or 5(1)
>    must not be commenced until the material has been classified.

The impracticality of this notion will be demonstrated once the ABA
inquiry reports in June 1996.

>     Section 7 - Definitions
>
>    For the purposes of this section:
>
>    'an on-line information service' means a system of stored information
>    accessed by computer through the use of a telecommunications network
>    which allows bi-directional transfer of files or messages between the
>    user and the system.
>
>    'a computer game' is a computer program and associated data capable of
>    generating a display on a computer monitor, television screen, liquid
>    crystal display or similar medium that allows the playing of 'an
>    interactive game' as defined by the Classification (Publication, Films
>    and Computer Games) Act 1995.
>
>    'objectionable material' means material that
>     1. depicts, expresses or otherwise deals with matters of sex, drug
>        misuse or addiction, crime, cruelty, violence or revolting or
>        abhorrent phenomena in such a way that it offends against the
>        standards of morality, decency and propriety generally accepted by
>        reasonable adults to the extent that the material should be
>        refused classification;
>     2. depicts in a way that is likely to cause offence to a reasonable
>        adult, a minor who is, or who appears to be, under 16 (whether or
>        not engaged in sexual activity);
>     3. promotes, incites or instructs in matters of crime or violence; or
>     4. if a computer game, is unsuitable for a minor to see or play.
>
>    Note: see the Classification (Publications, Films and Computer Games)
>    Act 1995 for descriptions of the classifications which may be given
>    to publications, films and computer games. Objectionable material as
>    defined corresponds to the refused classification category.
>
>    'restricted material' means material that:
>
>    (a) is unsuitable for a minor to see, read or play; or
>
>    (b) depicts, expresses or otherwise deals with sex, violence or coarse
>    language in such a manner as to be unsuitable for seeing, reading or
>    playing by persons under 15.
>