Board Report – 2000 Annual General Meeting
“The whole drift of our law is toward the absolute prohibition of all ideas that diverge in the slightest form from the accepted platitudes, and behind that drift of law there is a far more potent force of growing custom, and under that custom there is a natural philosophy which erects conformity into the noblest of virtues and the free functioning of personality into a capital crime against society.”
— H.L. Mencken 1880-1956
This year has seen the implementation of the Broadcasting Services (Online Services) Act 2000, the long-threatened Federal Government censorship of the Australian online community. The Government has trumpeted that the critics of the proposed law have been proved false – online discussion is alive and well, few sites have been closed down and the community is pleased to have a complaints mechanism in place.
It is EFA’s view that this puts a political spin on the failure of the legislation to satisfy its proponents and the fact that the Government has reserved to itself the right to close down any web page it chooses. The measure of a free nation includes public knowledge of censorship processes, but this Government has set in place a secret, unaccountable process that is arbitrary and politicised.
EFA has obtained, under Freedom Of Information legislation, details of the Australian Broadcasting Authority’s censorship processes. The processes are flawed technically, and inconsistency has flourished under a “dob-in” regime. EFA has submitted a detailed criticism of the IIA Industry Code, which adds further requirements to subscribers’ terms and conditions of Internet access, and the ABA proposals for restricting access to online material which must be screened against minors under the new regime. EFA also submitted to the Senate Legislation Committee in relation to classification guidelines on the narrowing of the X-rating across various media and the consequent banning of material controversially, but historically, in that classification.
It’s apparent that censorship of X-rated materials, obnoxious as it may be at the end of the 20th century, is a symptom of Governments across Australia striving to retain control over a global medium. Child pornography is prosecuted world-wide on a similar, though less than uniform, basis. The trade in photographic evidence of child sexual abuse is under international ban. However, the extent to which a Government feels compelled to suppress explicit or unconventional sex-related materials is a barometer of its attitudes to unpopular expression or radical art.
To smear critics of the online censorship as being in some way supporters of child pornography is a false claim, and counter-intuitive insofar as limited Government and police resources are being spent harassing web sites that are legal in other jurisdictions. EFA obtained a right of reply against claims made in Parliament by Senator Alston as to our motivations and credentials, and since January 2000 it has become apparent that the new laws are ineffective and costly. A conference at Curtin University heard criticism of the new laws from a variety of commentators; and in forums on filtering technologies, current legal issues and online censorship, EFA has been vocal in urging the repeal of those laws.
As predicted in the censorship debate last year, the focus on Internet legislation now shifts to State and Territory Governments. The passage of the Federal law has cast doubt on the applicability of State and Territory legislation relating to conduct by ISPs and carriers, however users and content hosts may still be liable under State and Territory law for possession and transmission offences. EFA submitted a response to Draft Model Legislation, pointing out that among other flaws the legislation blurred the distinction between films and Internet content, to the detriment of free expression and publication norms. The South Australian Government has recently announced an intention to press ahead with this flawed model, and EFA will be campaigning against the draft Bill.
The preoccupation of the legislators with what their fellow Australians are reading online extends to the Governments’ failure to legislate for online privacy. Thankfully, after several years of pretending by security agencies, widespread use of strong encryption has been decriminalised worldwide, and is available for the online marketplace. But the “light-touch” legislation proposed by the Federal Government invites industry to set its own privacy standards, with loopholes for existing privacy abuses. Novice users of the Net have no protections against exploitations of their privacy online beyond default Microsoft settings and a weak Privacy Commission.
Although it is true that in some cases the Privacy Bill creates legal rights where none previously existed, the pale embodiment of fundamental rights and the absence of effective enforcement mechanism leads EFA to urge for the rejection of this Bill by the Senate. In some cases, existing common-law rights of confidentiality and actions in defamation offer speedier legal remedies and greater rights to retraction and compensation than the current Bill.
EFA has been consistently urging Federal Parliament to toughen the Privacy Commissioner’s powers of audit, prosecution and direction; and in submissions to the Senate Information Technologies Committee and the Senate Legislation Committee, urged a rethinking of the needs of the Internet community in drafting privacy rules for the digital age.
The long-awaited amendments to the Copyright Act, the so-called “Digital Agenda” amendments passed Federal Parliament this year to muted praise and some concerns as to whether the “reverse-engineering” provisions would be used to stifle innovation and ban, for example, the DeCSS project. There is no doubt that the Copyright Act has the potential to entrench market dominance and silence free expression, and EFA will remain available to advise defendants charged with technical violations of the Act without financial gain.
EFA’s promotion of a draft acceptable use policy is designed to focus attention on a contentious, and largely undocumented, problem of defining acceptable use of Internet facilities in the workplace. With draconian penalties applied to alleged examples of workplace Internet abuse, it is important that employees and employers agree in advance what is considered to be unacceptable use of employers’ facilities.
EFA was re-elected to the board of the Australian Domain Administration (“auDA”) in late 1999, and faces re-election this year. Domain name policy is overdue for reform in Australia, and EFA’s representative Kim Heitman was a delegate to the ICANN meetings in Yokohama. At the Yokohama meetings, EFA participated in the formation of the Civil Society Internet Forum, an international organisation seeking greater democracy within ICANN. EFA submitted to the Senate Legislation Committee in relation to a proposal to give the ACA the power to take over or direct the operations of the Australian domain name registry, and will be making submissions in the forthcoming year to the auDA policy panels in relation to naming policy and competition policy.
EFA was an invited guest to the launch of NetAlert, the Federalism Forum and numerous radio and newspaper interviews. EFA and its Board members continue to be in demand as lecturers, commentators and advisors in relation to online matters and civil liberties issues. Apart from written submissions, EFA has twice this year given oral evidence to Senate Committees and faced questions in the Senate and the public domain over online policy. EFA is regularly consulted by those threatened with litigation or prosecution over online conduct or opinion, and our charter includes a role in defending civil liberties before the Courts.
This year has seen the appointment of Ms Irene Graham as EFA’s Executive Director and the retirement from the Board of one of EFA’s founding directors, Dr Michael Baker. Ms Graham is a long-time Board member and activist, and her online anti-censorship site Libertus Net is an authoritative resource. Since taking on the role of Executive Director, Ms Graham has managed the transition to the new tax system and the implementation of greater professionalism in EFA’s office administration. The greater number of EFA initiatives and activities this year has been due to her efforts and on behalf of the Board I express our appreciation. Ms Graham has been responsible for two major research projects, an analysis of Queensland’s restrictive publications laws and a critical analysis of the OFLC’s classification guidelines.
Dr Baker is retiring from the Board to pursue other interests, and on behalf of the Board I would like to thank him for his achievements in the establishing of EFA and his service as Founding Chairman and continuous Board member since 1994. Dr Baker drafted many early EFA submissions, and has recently reported to EFA on international matters and issued an online newsletter to members. His contribution will be sorely missed and I wish him well in his future endeavours.
I would like to thank Greg Taylor, EFA Vice-Chair for his work in maintaining the EFA web site and Michael Malone, Board Member, for our hosting and email facilities at iiNet. To retiring members of the Board Felipe Rodriquez and Powen Hwang, thanks for your contribution and good luck in your work overseas. EFA still needs an active Board, and continuing members will be active in the year ahead with new online issues within EFA’s brief.
For example, both the ACA and the ACCC have announced intention to require ISPs to keep records of users’ Internet access, to aid law enforcement and investigations. The Council of Europe’s draft “cyber-crime” treaty looms as an international law enforcement standard, and a gift to a Police State. In America, the FBI’s “Carnivore” system offers easy tapping of Internet traffic, but is still incapable of decyphering messages encrypted with Pretty Good Privacy. ASIC would like to regulate chat rooms’ discussions of stocks and shares, the Prime Minister wants to block online gambling and Australian Police Forces are seeking national standards for prosecutions of conduct committed or enabled online. As more Australians come online, each regulator in turn will have to grapple with the challenge of dealing with a global, anonymous environment and EFA will continue to urge agencies to open up online delivery of services based on planned security and privacy considerations.
Thank you, members, for your continued support of EFA and its activities. EFA is a volunteer organisation, and relies on the contributions of individual members to advance its charter. Please become involved in EFA campaigns and our efforts to preserve freedom online. While EFA is in a sound financial position and in a position to meet its commitments in the forthcoming year, the number and range of Government inquiries and agency draft policy papers require detailed responses and a national presence. I’d urge activists and friends of EFA to come forward on issues of concern to help us maintain an active and expert role in policy debate.
Kimberley Heitman, B.Juris, Llb, AACS
Chair, Electronic Frontiers Australia Inc
