Big Brother is watching you. There was of course no way
of knowing whether you were being watched at any given moment…
You had to live in the assumption that every sound you made
was overheard … every movement scrutinized.
– George Orwell, Nineteen Eighty-Four
Today’s world isn’t quite the Stalin-inspired, totalitarian nightmare imagined by Orwell but it seems that almost every day we are presented with some new threat to our cherished freedoms, some new intrusion into our personal privacy. While EFA acknowledges that the world has changed in recent years, the actions of over-zealous governments need greater vigilance now than ever before, lest they exploit the anxieties of the population to introduce draconian, ineffective laws in the name of national security. Notwithstanding the exhortations of the Australian government’s bizarre fridge magnet campaign, we contend that there is a need to be both alert and alarmed about threats to privacy.
On behalf of the board, I am pleased to report on EFA’s activities for the past year. Unsurprisingly, given the current political climate in Australia, much of our activity has been focussed on privacy issues.
Censorship
Twelve months ago, EFA made a submission to the Department of Communications, Information Technology and the Arts (“DCITA”) Review of the Operation of Schedule 5 to the Broadcasting Services Act 1992. Nothing more has been seen of this review, notwithstanding that it was required by a resolution of the Senate.
It is a matter of record that Senator Richard Alston, the Minister responsible for this portfolio until the recent Ministerial reshuffle, was no admirer of EFA. On several occasions, he attempted to discredit us in the Parliament, and during debate on the Communications Legislation Amendment Bill both he and Senator Brian Harradine made non-factual statements and allegations about EFA’s policies and motives under Parliamentary privilege. This forced us, for the second time in recent years, to rebut the allegations in a complaint to the President of the Senate. We are pleased that the Senate Privileges Committee resolved to table our rebuttal in the Senate and have it incorporated in Senate Hansard.
When Senators and Ministers resort to false allegations to discredit EFA, we must be making an impact. Additionally, the Communications Legislation Amendment Bill was a direct response to EFA’s attempts to obtain information about the government’s Internet censorship regime. It included amendments to the Freedom of Information Act 1982 designed to further prevent public scrutiny (and potential criticism) of the operation and administration of the censorship regime following EFA’s unsuccessful FOI application on the Australian Broadcasting Authority that was eventually turned down by the Administrative Appeals Tribunal last year.
We now have a new Minister responsible for the Department, former Attorney-General Daryl Williams. He has yet to make a significant mark on the portfolio, but EFA was often at odds with previous government policy that came within his area of responsibility as Attorney-General, particularly the weak privacy legislation introduced in 2000, and recent legislation giving additional powers to ASIO. We reserve judgment but we are not optimistic.
In August this year the government announced a proposal to introduce publishing laws applicable to Internet users, which to date have been considered to be within the powers of the States and Territories. This proposal appears to be a response to the use of the Internet by WTO protest organisers.
Given the breadth of existing censorship law, which the government apparently deems inadequate, the proposed new offence seems likely to have the effect of prohibiting political speech. The Howard government has further demonstrated its censorship agenda through its attempted muzzling of the media in relation to the Iraq war coverage and the recent refugee controversy on Melville Island. Needless to say, EFA will continue to oppose censorship in all its forms.
Privacy
EFA this year has again played a leading role in publicising practices concerning disclosure of silent and other blocked calling number information by telephone call carriers to Internet Access Providers/Internet Service Providers (“ISPs”).
In July 2003, EFA’s Executive Director, Irene Graham, was instrumental in coordinating representative complaints which were sent by three individuals to the Federal Privacy Commissioner and the Australian Communications Authority under the relevant provisions of the Privacy Act 1988 and Telecommunications Act 1997, alleging breaches of the law in regard to CNI disclosure. The ACA is currently conducting an investigation into the matters raised.
Earlier in 2003, EFA made a submission to and appeared before the Parliamentary Joint Committee on the Australian Crime Commission which was conducting an inquiry into recent trends in practices and methods of cybercrime. The submission called on the Committee to ensure that any proposed legislative amendments that would change the long-established balance between individuals’ right to privacy and legitimate law enforcement needs should be carefully scrutinised with regard to clear justification of need and whether the benefits are clear and are achievable by the measures proposed.
Subsequently, EFA responded to the Internet Industry Association’s draft Cybercrime Code of Practice, criticising many of the proposals in the Code as failing to recognise the privacy rights of Internet users. We will continue to closely follow both government and industry moves in this area.
In October 2003, EFA made a submission to and appeared before the Senate Environment, Communications, Information Technology and the Arts Legislation Committee which was conducting an inquiry into the Spam Bills 2003. EFA recognises the need to address the significant problems caused by the proliferation of the spam menace, but we considered that changes to the Bill were necessary in order to make the proposed legislation acceptable and workable. At one stage we were confident that the Opposition would support many of EFA’s proposed amendments in the Senate, but it now seems that political pragmatism will prevail to see the legislation pass without amendment.
EFA has also been active in pushing the privacy cause in relation to the ENUM protocol proposals. We are participating in the ENUM Privacy and Security Working Group convened by the Australian Communications Authority.
Irene Graham attended the 25th International Conference of Data and Privacy Commissioners held in Sydney in September this year, as well as speaking at the Surveillance and Privacy 2003: Terrorists and Watchdogs’ Conference and participating on the judging panel of the Big Brother Awards organised by the Australian Privacy Foundation.
Copyright
EFA responded to the “Digital Agenda” amendments to the Copyright Act in response to the call for submissions made by Phillips Fox in its interpretation of the Terms of Reference issued by the Government. EFA is of the view that the rule-based analysis and terms of reference shy away from the fundamental public interest in maintaining consumer rights under a barrage of litigation and unfair licensing schemes by copyright owners.
EFA members will be well aware of the litigation campaign that is being orchestrated by copyright owners worldwide against individuals and ISPs for alleged music piracy. EFA has recently expressed strong concern about heavy-handed action against an Australian website publisher and his ISP in what is shaping up as a major test case that may well define the boundaries of copyright law.
Acknowledgments
It has been a busy year for EFA, and the passionate and tireless efforts of our Executive Director, Irene Graham, deserve our acclamation and appreciation. Irene has been instrumental in elevating the profile of EFA in the media and in the political arena in recent years, to the extent that EFA is now regularly consulted by both media commentators and politicians on Internet issues.
It has not been possible to cover all of EFA’s activities this year in this brief report, and I would encourage all members to consult the EFA website for additional information. The website was substantially redesigned by Irene Graham at the beginning of this year, paying particular attention to accessibility guidelines. It is now a substantial resource on civil liberties issues in Australia.
I would like to acknowledge Kim Heitman’s strong advocacy on behalf of EFA as Chair for the last 7 years. Fortunately, Kim remains on the board and his extensive legal knowledge and experience are still available to us.
May I also thank my fellow board members for freely giving their time and expertise throughout the year. We currently have a particularly strong board covering a wide spectrum of industry knowledge and experience and it has been a privilege to work with them on the many issues facing EFA. The board will be further strengthened in the coming year with the addition of two new members and I welcome them to the board.
EFA is well placed to face the challenges that continue to confront us and we all look forward to continuing to be a strong voice for advocacy of free speech and privacy in the coming year.
Greg Taylor
Chairperson, Electronic Frontiers Australia Inc
16 November 2003
