13 November 2005
Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.
Ayn Rand (1905-1982)
`On behalf of the board, I am pleased to report on EFA’s activities for the past year. Two years ago the EFA Annual Report said “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”. Two years on, it seems that little has changed, although many more people are now openly sceptical of government moves to limit freedom in the name of preserving freedom. EFA recognises that the criminal law needs to be effective, and that law enforcement needs appropriate powers of investigation, but we remain unconvinced about legislative proposals that too readily sweep aside hard-won freedoms and fall on the wrong side of that fine balance between liberty and oppression.
The last year’s activities have been largely concerned with two main areas, privacy and intellectual property, the latter focussing increasingly on combating excessive zealotry by the music industry in pursuing its copyright claims through the courts.
Intellectual Property
The High Court of Australia recently handed down its decision in Stevens v Sony Computer Entertainment, more popularly known as the “Playstation mod-chipping case”. This decision was a victory for consumers, holding that legal protection for Technological Protection Measures (also known as “TPM”, “Digital Rights Management” or “copy protection”) extends only to TPM which prevent *copying* of protected material, not *access* to protected material.
Unfortunately, this case was decided on the basis of the law as it stood in March 2001, and the law has since been changed by the Australia – United States Free Trade Agreement.
The FTA entered into force on the first of January 2005. Legislation implementing many objectionable provisions of the FTA also took effect from that date, including technical changes to the Copyright Act which have rendered moot important portions of the judgment in Stevens v Sony, and an extension of the term of copyright in Australia by 20 years.
The worst, however, has yet to come. Many other equally objectionable provisions of the FTA have yet to be implemented. The FTA requires Australia by the end of 2006 to extend legal protection to TPM which controls *access* to protected material. This change will render ineffective the existing exceptions in the Copyright Act for purposes such as “fair dealing”, and making backup copies of computer software.
During the year, the Commonwealth Attorney-General conducted a review of these exceptions to copyright, and examined whether new exceptions should be granted. EFA made a written submission arguing for new exceptions to cover time-shifting and format-shifting, and for the replacement of the existing overly restrictive “fair dealing” exception with an open-ended exception modelled on the “fair use” exception which exists in the United States. The outcome of this review has yet to be announced.
The House of Representatives Standing Committee on Legal and Constitutional Affairs is conducting an inquiry as to what exceptions to the TPM protections under the FTA should be granted. EFA made a written submission to this inquiry, and EFA board members Dale Clapperton and Andrew Pam will be giving oral testimony before the committee at public hearings in Melbourne.
In Universal Music v Cooper, the Federal Court held that a Brisbane webmaster, his hosting provider, and both a director and a technical support employee of the hosting provider were liable for authorising copyright infringements allegedly committed by Internet users who were alleged to have downloaded sound recordings which the webmaster had hyperlinked to.
In Universal Music v Sharman, the Federal Court held that Sharman, through its conduct and distribution of the Kazaa peer-to-peer software, had similarly authorised infringement of copyright by users of the Kazaa software. EFA, in conjunction with other interested groups, and with the assistance of the Communications Law Centre, made submissions to the court as amicus curiae in this case.
Appeal proceedings are under way in Universal Music v Sharman, and are likely in Universal Music v Cooper.
Extensive information on all of these issues is available on EFA’s Intellectual Property Online pages.
Privacy Issues
EFA’s Executive Director was an active participant in the Privacy Consultative Group convened by the Federal Privacy Commissioner in relation to the OFPC review of the Commonwealth Privacy Act 1988.
Following the Privacy Commissioner’s review in Dec 2004, an Inquiry into the Privacy Act was conducted by the Senate Legal and Constitutional References Committee (Feb 2005). EFA was active in both these inquiries, preparing comprehensive submissions and also presenting oral testimony to the Senate Committee. The Senate Committee report The real Big Brother: Inquiry into the Privacy Act 1988 was tabled in June 2005. The report found that the Privacy Act was not proving to be an effective or appropriate mechanism to protect the privacy of Australians, and it recommended that the Australian Law Reform Commission conduct a review of privacy for Australians in the 21st century that included “a stock take of emerging technologies and their privacy implications, and ways in which privacy regulation could be improved to deal with these technologies”. While not all of EFA’s recommendations were taken up by the Committee, we support the Report’s recommendations. The Government has yet to respond to the Report.
In June 2005, EFA sent a submission to the Department of Communications, Information Technology and the Arts (DCITA) public consultation on Spyware. It is not yet known what DCITA’s plans are in relation to dealing with this menace but the government’s official position is that no new laws are required.
EFA made a submission in July 2005 to the Australian Communications and Media Authority in response to the Draft Telecommunications Industry Standard (Use of Integrated Public Number Database). There have been a number of apparent abuses of the IPND and EFA supports measures by the regulator to improve industry performance. We have urged ACMA to finalise and implement an initial version of the Standard and also to pursue Government consideration of relevant policy issues with the objective of appropriate legislative change and/or the incorporation of relevant provisions in a future version of the Standard.
In October 2005, EFA sent a submission in response to Discussion Paper: Unauthorised Photographs on the Internet and Ancillary Privacy Issues issued by the Standing Committee of Attorneys-General. This issue has been given a lot of media attention recently and it presents a challenge in finding the appropriate balance between privacy and freedom of expression. This area is a State Government responsibility and it is pleasing to see that governments are moving to enact appropriately balanced legislation that reflects the recommendations made by EFA. An example is the amendment to the Qld Criminal Code through the Justice and Other Legislation Amendment Bill 2005 (Clauses 52-55) tabled in the Qld Parliament in November 2005. These amendments provide penalties for observations or recordings in breach of privacy and distributing prohibited visual recordings of a private nature.
Surveillance and Telecommunications Interception
The Federal Government has had three attempts since 2002 to amend the Telecommunications (Interception) Act 1979 (“the TI Act”) to deal with email interception. EFA has been an active participant in the many inquiries held over that period and has strongly opposed moves to relax the warrant requirements. The government finally passed a Bill in December 2004 which allowed police to access stored text messages and emails without obtaining a separate telecommunications interception warrant. Unfortunately this Bill was even more objectionable than the original 2002 proposal because it completely removes email, SMS and voicemail messages (stored communications) from the scope of the protection of the TI Act. The government effectively acknowledged that this was a stopgap measure by including a 12-month sunset clause in the Bill and appointing Tony Blunn, former Secretary of the Attorney-General’s Department, to conduct a review of the TI Act. EFA made a comprehensive submission to this review in May 2005, and Mr Blunn’s Report of the Review of the Regulation of Access to Communications was tabled in Parliament in September. The report was welcomed by EFA as its recommendations are a major improvement over the current situation and they address many of the concerns we raised.
At the same time the government introduced a Bill to extend the sunset clause for the stored communications clauses of the Act for a further 6 months, to June 2006. The government’s stated reason for this extension was to give them adequate time to consider the ‘complex issues’ raised in the report. While EFA is not particularly happy about the extension to the sunset clause, we would prefer that the government properly consider Blunn’s recommendations and hopefully prepare balanced legislative amendments rather than introduce another rushed Bill this year. We anticipate yet another stoush over this issue, because it is unlikely that law enforcement agencies will support all of the recommendations.
In March 2005, EFA presented oral testimony before the Senate Standing Committee for the Scrutiny of Bills in relation to their Inquiry into Entry, Search and Seizure Provisions in Commonwealth Legislation, following our submission lodged last year. EFA made recommendations concerning a number of Acts and in relation to the use of Search Warrants and Anton Piller Orders to obtain information stored on computer equipment. It remains to be seen what effect the outcome of this inquiry will have on future legislative changes.
Censorship
In April 2005 EFA made a written submission and presented oral testimony to the Senate Legal & Constitutional Legislation Committee’s Inquiry into the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005. This Bill proposed new criminal offences prohibiting accessing and publishing “suicide related material”. It threatened freedom of political communication, freedom of the press and rational adults’ right to have access to information. The Bill was described by EFA as poorly constructed law and a gross infringement of fundamental human rights of communication. Unfortunately this Bill was passed into law by the Parliament in June 2005.
The battles over Internet censorship that we fought five years ago have become a distant memory. However, from time to time various interests and members of Parliament rake over this old ground with proposals for mandatory filtering. The Family First party has mandatory filtering as policy, but it would seem that the government has little interest in the matter. Mandatory library filtering has been canvassed by Religious Right groups in recent months, and a proposal for mandatory Tier-1 filtering has been put forward by Senator Guy Barnett. While EFA does not believe there are any serious threats in these proposals, we maintain an active watching brief over the matter.
ePassports
EFA has been actively involved in the debate over the Australian ePassport, which the Australian government released in October 2005 in conformance with ICAO standards. Early proposals for these passports, which contain an inductively-coupled “RFID” chip, had a number of serious flaws and privacy and security experts worldwide expressed legitimate concerns to governments. Fortunately, government agencies took these concerns on board and modified the designs to overcome the problems raised. EFA is currently of the view, based on researched material and information made available by DFAT, that the new controls have been implemented with better security than other remote identifiers and in keeping with prevailing privacy standards. We are continuing to monitor the issue.
Telemarketing
The Department of Communications, Information Technology and the Arts has recently released a discussion paper concerning the introduction of a possible do-not-call register to control telemarketing. Although this matter does not relate directly to online issues, the convergence of telephony and data communications, and advances in Voice-over-IP technology suggest that it is a matter in which EFA should take a stand.
Defamation
EFA is pleased to note that all Australian States have enacted or agreed to enact uniform defamation laws. Several jurisdictions have recently introduced Bills and announced that the uniform laws are expected to commence operation on 1 January 2006. The States and Territories have agreed to enter an intergovernmental agreement to maintain uniformity in making future reforms. This means that rather than eight distinct laws, there will be one uniform law in all states. The main changes have been to establish truth as a defence and to remove the right of large corporations to sue, thus addressing current community concerns that large companies could use defamation action to stifle legitimate public debate. The uniform legislation also aims to shift the focus away from costly court trials, by encouraging parties to resolve disputes in a non-litigious manner through an ‘offer of amends’ process. The changes do not have the support of the Federal Attorney-General, who wanted to retain the right of corporations (and deceased persons) to sue.
EFA Funding
EFA’s funding position has improved somewhat due to some welcome large donations during the year. However, we will need to seek other sources of funding in the years ahead if we are to maintain the level of professional representation that we have enjoyed in recent years.
Acknowledgments
It has not been possible to cover all of EFA’s activities this year in this report, and I would encourage all members to consult the EFA website for additional information. We also welcome feedback from members on any of the issues covered in this report, or indeed on any other matters that you believe should receive the Board’s attention.
It has been another busy year for EFA, and considerable thanks are due to our Executive Director, Irene Graham, who is responsible for preparing most of EFA’s submissions to Parliamentary Committees and government bodies, representing EFA at Committee hearings, and dealing with frequent media enquiries. EFA now enjoys a high profile in government and the media, and our views on online issues are sought after and respected.
Thanks are also due my fellow board members for freely giving their time and expertise throughout the year. I would like to pay particular tribute to Dale Clapperton and Matt Black, who have been largely responsible for considerably lifting EFA’s profile this year in relation to copyright issues.
EFA will continue to confront the challenges that lie ahead, particularly as the Howard Government seems intent on using its Senate majority to push through poorly-conceived legislation without adequate scrutiny.
I thank all EFA members for your continuing support.
Greg Taylor
Chair, Electronic Frontiers Australia Inc
12 November 2005
