Internet Censorship

This was the year that the Federal Government sacrificed the future of Australian e-commerce and its reputation as an Internet early-adopter by attempting to censor the Internet from the bunkers in Canberra. The Broadcasting Services (Online Services) Act 1999 was a transparent inducement to Senator Brian Harradine to pass the Government’s GST and Telstra legislation, the Government feigning a sudden interest in “adult” material online. It failed to achieve its political purpose – Harradine voted against both bills, and milder legislation later passed with the support of the Australian Democrats. However, the Government, and Senator Richard Alston in particular, were so captured by their own rhetoric that the censorship bill proceeded into law as an exercise in political muscle. Last-minute amendments urged on the Government by the Internet Industry Association have made an unworkable law even more uncertain, arbitrary and unfit for its stated purpose of protecting children from unsuitable material.

EFA campaigned strongly against the Bill during 1999, and it is not for want of trying that the Bill became law. At the outset, the Government had public support and the general approval of all political parties to enact suitable legislation to more clearly delineate the obligations of Internet Service Providers. While existing laws did make effectively illegal all crimes committed using Internet access, it was unclear as to whether State or Federal obscenity laws applied and the Federal Government could have chosen to establish a national prosecution policy. Instead, the Federal Government has criminalised “adult” material and has tried to force ISPs to somehow censor the Internet, under threat of massive fines or Federal Court orders to shut down. EFA’s campaign against the Bill, including a national series of marches and demonstrations, alerted the public and the Opposition parties to the failings of the proposed laws. While the Bill passed when the Government applied the guillotine in Parliament, its deficiencies and manifest unfairness will emerge from January 1, 2000 and EFA will continue to campaign for its early repeal. Attempts by Senator Alston to smear EFA under parliamentary privilege resulted in the Privileges Committee granting to EFA a right of reply, which was incorporated into Hansard.

The preferred tool of censorship is proxy-filter software, which deprives end-users of the ability to choose for themselves. The software is notoriously unreliable, failing to block what it should and often blocking what it should not. EFA strongly condemns the use of filter software to regulate the Internet, given the current products available and mindful of the rights of all people under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Australia is a signatory to the ICCPR and has incorporated it into the Human Rights and Equal Opportunity Commission Act. Censorship by Governments is a tragedy, censorship by computers is a travesty. EFA has demonstrated, for example in its review of Clairview Internet Sheriff, that whether or not censorship is desirable, the tools available are not up to the task.

In September, I attended the Munich Internet Content Summit organised by the Bertelsmann Foundation. Lawmakers and lobbyists from around the world debated content regulation and the options for Governments. The presence of online activists, including members of the Global Internet Liberty Campaign, resulted in the conference resiling from the pro-regulation consensus urged in the Memorandum and a widespread endorsement of GILC’s position statement. A report of my observations of the conference is online.

Since 1994, EFA has made many submissions to Governments around Australia urging a considered approach to Internet censorship, based on technical feasibility, industry “best practice” and an understanding of the need to develop the online economy in Australia. Reasoned debate as to the appropriate regulatory policies have been hampered by an all-but-universal ignorance about the Internet by politicians, many professing pride at not understanding the Internet or computers. Fortunately the emergence of net-savvy politicians such as Senators Stott-Despoja and Lundy and the greater public awareness of Internet issues is turning the tide, and whatever the end fate of the Online Services law there is now a much more informed public debate.

The Federal censorship law, in criminalising X-rated material, is out of step with the laws in the States and Territories relating to online content. There is pressure being brought upon the States and Territories to pass censorious “matching” legislation, since the Federal laws will be even more of a mockery if the laws relating to users, content providers and content hosts are not uniform. EFA has made a submission in relation to the draft “model” legislation, and it is encouraging that media reports indicate that the States and Territories will not agree to censor material legal in print or on video.

The “restricted access system” requirement for R-rated web sites, or at least those remaining on Australian web servers, has been the subject of a consultation paper issued by the Australian Broadcasting Authority. The proposed regulations would require adults wishing to view material considered “restricted” by the ABA to register personal identity details with the website owner, verified either by credit card transaction or corroborated evidence of identity, such as a passport or birth certificate. These proposals have been strongly criticised by EFA, the Internet Society of Australia, the WA Internet Association, the South Australian Internet Association, the Internet Industry Association and the Australian Computer Society – principally because the regulations would require registration of identity rather than proof of age. EFA has submitted a comprehensive response to the consultation paper and will be monitoring closely the implementation of this legislative folly.

The regulatory regime established by the Online Services legislation includes a hidden censorship through the registration of an industry Code of Practice required under the law. The Code, which will require Internet Service Providers to censor content, may also require ISPs to stop their users accessing material prohibited under Australian law. EFA has issued responses to two versions of the Internet Industry Association’s Code of Practice, and remains opposed to the policy of ISPs being required to censor content.

Cryptography and the ASIO Bill

The tide turned, also, in relation to cryptography policy. After EFA’s coup in exposing the Walsh report in 1997, we were able to place online this year the censored text and deletions from the version released by the Government. The source of this “leak” was a library, since the Government printer had apparently neglected to recall library distribution of the Walsh report following the Government’s decision to suppress the report. Indeed the Government was embarrassed for more reason than one – the deletions showed a paranoid mentality rampant within an international environment over which it could exert little influence and no control. Cryptography software has proliferated beyond the ability of any Government to constrain or control, so this year even the American and European governments bowed to the inevitable and relaxed restrictions on the use and export of cryptography software.

The Wassenaar campaign, in which EFA played a key role leading to a GILC Statement, also deserves mention, as does the crypto campaign we conducted in Australia, and the publication of the crypto FAQ.

While the Walsh report’s recommendations against cryptography restrictions were accepted by the Australian Government, so too were the recommendations to update ASIO’s powers to tap into cyberspace. EFA made a submission strongly opposing the unregulated new powers for ASIO and others to break into computers, alter data and spy on individuals without the checks and balances needed to prevent politicising and corruption of the officers involved.

Civil Rights

During the year, privacy policy became a contentious issue, as the Internet Industry Association and the Australian Direct Marketing Association released industry codes of practice concerning “spam” and data mining, and the Federal Government grappled with privacy legislation. Draft legislation released by the Government was condemned as inadequate by privacy advocates, and EFA joined with others in the Campaign For Fair Privacy Laws to pressure the Government to enact meaningful protections against invasion of privacy through data matching and third-party disclosure. This will be an ongoing campaign, and an important issue for the digital age.

As always, EFA was involved in a number of civil rights cases within Australia. We pointedly established that the Rabelais judgement was able to be published, notwithstanding that the case report contains the article that led to the student newspaper editors being prosecuted for distribution of refused-classification material. We supported the rights of Holocaust Revisionist Dr Frederick Toben to publish his views from his Adelaide web site without being in breach of German laws – a viewpoint upheld by the trial judge. We were consulted by people prosecuted by Optus for merely viewing a web page mistakenly left readable by Optus. EFA endorsed and supported an Adelaide businessman whose website business was closed down because the name was considered offensive. EFA has submitted several Freedom of Information requests (to the OFLC and to the Queensland Government) on censorship issues.

EFA Board members and staff answered hundreds of requests for advice and comment during the year, and it’s fair comment that EFA is now widely recognised as a voice for user rights and online liberties. During the year, EFA was twice elected to the Board of the Australian Domain Name Authority (“auDA”), an acknowledgement that EFA is a trusted advocate for online freedoms and a respected participant in the Australian Internet community. EFA Board members chaired and attended a number of conferences and were keynote speakers and lecturers in Australia and overseas during the year, developing a high profile as experts in Internet policy and current issues. EFA has issued a number of media releases during the year and Board members are active in Internet mailing lists and newsgroups including aus.org.efa..

Acknowledgements

I’d like to thank members of the Board for their contribution to the work of EFA during the year, and our sponsors and subscribers for their continued support. During the year EFA was able to afford a staff member for the first time, and with the number and range of issues before us it is necessary for the volunteer Board to have the assistance of a secretariat. Thanks to founding Chairman Michael Baker, EFA is now issuing regular updates to supporters and our international colleagues within GILC. The forthcoming year will be important for Internet policy within Australia, as the Online Services law comes into force and the Internet industry must abide by a new Code of Practice. It’s highly unfortunate that other necessary legislative reforms, such as e-commerce enabling laws, copyright law, defamation law and digital signatures remain of low priority to this Government. EFA will be active in ensuring that Australians continue to have access to the global Internet with all of its diversity and freedom of expression, and to monitor attempts by State and Territorial Governments to limit freedom of expression under local laws. I welcome to the Board new members Jeremy Malcolm, Powen Huang and Dale Clapperton and look forward to a productive year ahead.

Kimberley Heitman, B.Juris, Llb, AACS
Chairman, Electronic Frontiers Australia Inc.,
November 1999.