15 November 2007

The most dangerous man to any government is the man who is able to think things out for himself,
without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the
conclusion that the government he lives under is dishonest, insane and intolerable, and so, if
he is romantic, he tries to change it. And even if he is not romantic personally he is very apt
to spread discontent among those who are.

– H L Mencken

On behalf of the board, I am pleased to present the EFA Annual Report for 2007. This report is a brief snapshot of some of EFA’s activities this year. Please browse the EFA website for additional information about the issues discussed here and feel free to contact the Board with your feedback on any matters that you believe are important. In particular, copies of submissions made by EFA to various inquiries and regulatory bodies may be found in the Publications area of the website.

2007 has been another busy year for EFA. As previously announced to our members, the position of Executive Director of EFA was discontinued earlier this year due to insufficient funding, and EFA has returned to being a purely volunteer-run organisation. EFA’s long-time Executive Director, Irene Graham, has done excellent work for EFA over the years and her presence is sorely missed.

Privacy

The ‘Access Card’

During the last year, the Commonwealth government has pressed ahead with an ill-conceived billion-dollar project to replace the current Medicare card and a number of other benefit and concession cards with a single smartcard-based Access Card, with a globally unique identifier for each person enrolled in the scheme, and using facial biometric identification methods. EFA has been consulted by the Access Card Consumer and Privacy Taskforce, the Department of Human Services, and a Senate Committee of Inquiry, and has participated in meetings with these bodies and with other privacy advocacy groups. We have made several submissions to the Taskforce, the Senate Finance and Public Administration Standing Committee, and to the Department during the year, focusing particularly on areas within EFA’s expertise. The government stumbled badly with its attempt to introduce the first tranche of the Access Card into Parliament early in 2007. The Senate Committee inquiry into the legislation heard evidence from a number of witnesses including EFA, and delivered a scathing report on the legislation such that the government was forced to withdraw it. Despite repeated claims from the Minister that new legislation would be introduced by mid-year, only an exposure draft had appeared before the election was called. EFA was involved in consultation meetings with senior Departmental staff about the exposure draft, and submitted a strong critique of the draft legislation in August 2007. EFA has strong objections to many aspects of the Access Card proposal, in particular the mandatory requirement for a photo on the surface of the card and the risks, dangers and privacy problems with the facial biometrics proposals. At present the Access Card legislation is in limbo pending the outcome of the Federal election. The ALP has pledged to scrap the Access Card proposal if elected to government but will undertake an overhaul of the Medicare Card.

ALRC review

In October 2006, the Australian Law Reform Commission (ALRC) released a discussion paper pursuant to a government reference for review of the Privacy Act and related legislation. EFA made a comprehensive submission in response to the discussion paper, focusing particularly on flaws with the existing exemptions under the Privacy Act, and on problems with telecommunications privacy and interception regimes. EFA subsequently had a meeting with an ALRC Commissioner in March this year which further explored these issues. The review is ongoing and the the Commission is due to report in March 2008.

Copyright

Despite vocal criticism from EFA and other groups, the Copyright Amendment Bill 2006 was enacted in late 2006 while still containing inexcusably broad criminal and anti-circumvention provisions. The best that can be said for these provisions is that so far they seem to have had little use; the scope of the anti-circumvention provisions will not be clear until they are judicially considered. The new criminal provisions seem to have not been used, except for the well-publicised case where a Sydney man who recorded the Simpsons movie in a cinema using his mobile phone was charged with two counts of criminal copyright infringement — one for making the copy, one for possessing the phone which made it.

The ‘infringement notice’ provisions also seem to have not yet been used. The Commonwealth Attorney General’s Department recently released a draft of the enforcement guidelines for the infringement notice scheme. EFA regards the guidelines as seriously deficient and made a submission to the AG’s Department detailing our concerns.

Censorship

Communications Legislation Amendment (Content Services) Bill 2007

EFA has been involved in the Internet censorship debate since the mid-1990s, and protested vigorously against the notorious amendments to the Broadcasting Services Act in 1999 which introduced censorship of online material hosted in Australia. In late 2002, EFA lodged a submission to the Review of the Operation of Schedule 5 to the Broadcasting Services Act 1992 conducted by the Department of Communications, Information Technology and the Arts (“DCITA”), and the DCITA report was eventually tabled in Parliament in May 2004. In May 2007, the government introduced the Communications Legislation Amendment (Content Services) Bill 2007, which extended the legislation to cover “convergent (mobile) devices”.

EFA’s submission to the Senate Senate Environment, Communications, Information Technology and the Arts Committee Inquiry into the 2007 Bill opposed the proposed changes, and recommended that the entire Internet censorship scheme be scrapped. Regrettably, the legislation was passed largely without amendment.

Australia still stands alone amongst Western nations in its futile attempt to censor the Internet and the Australian Internet censorship scheme remains today an illogical bureaucratic curiosity in the context of the global Internet. It has almost negligible effect on the material that is available to Australian Internet users and must on any rational grounds be regarded as an expensive policy failure. It is quite astounding that the government expanded this failed scheme to cover newly emerging media delivery systems such as mobile phones.

While Australian governments will no doubt continue attempts to hoodwink the public, EFA believes that the increasing number of Australian adults who use the Internet means that fewer parents are being lulled into a false sense of security by the government’s claims. The government cannot make the global Internet safe, or even ‘safer’, for children, and the best form of protection is a combination of parental supervision and effective PC-based filters.

Internet Filtering

In August this year, during a speech to conservative Christian groups, the Prime Minister announced that all Australian ISPs will be required to offer a filtered Internet service to customers who request it. Despite the announcement being a transparent attempt to play the ‘save the children’ card in the leadup to the election, this proposal, if implemented, would threaten to increase the cost and decrease the speed of Internet access for all Australians.

Federal police censorship order powers

On the last sitting day of the Senate before the federal election, the government introduced a Bill which would give sweeping powers to senior members of the Australian Federal Police to block access to Internet content by decree, based merely on what they ‘believed’ the content’s purpose or effect might be. These orders are independent of classification of the content by the OFLC, could be used against content which is not prohibited under the national classification guidelines, would be made in secret and not disclosed even to the operator of the website targeted, and have no mechanisms for review of a decision to issue such an order.

Thankfully this ill-concieved Bill lapsed upon the dissolution of federal parliament in preparation for the election.

Private lawsuits against forum operators

2007 saw at least four lawsuits in Australia against persons who operated or moderated Internet forums:

• An incorporated religious school sued the moderator of an Internet forum for defamation, because of criticisms of the school and the religious group;
• A New South Wales local government authority sued the site owner, hosting provider, and moderator of an Internet forum, because of allegedly confidential council information which was discussed in the forum. EFA arranged legal representation for the moderator, and the council later abandoned their claims against the moderator, and were ordered to pay his legal costs;
• An individual sued the operator of an Internet forum because of racially vilifying comments posted in the forum by a third party. EFA Chairperson Dale Clapperton represented the forum operator in the Federal Court. The case against the forum operator was dismissed and the applicant was ordered to pay the out-of-pocket costs of the forum operator
• An accounting software vendor sued the owner of whirlpool.net.au for ‘injurious falsehood’ because of criticisms of their software that were posted on Whirlpool. EFA issued a press release on this issue and did substantial work with the media to publicise the lawsuit. The software vendor shortly thereafter announced they were abandoning the lawsuit.

These lawsuits demonstrate the unsatisfactory state of the law in Australia in this area. EFA will be making representations to whichever party forms the government after the forthcoming federal election on this issue.

Material that advocates terrorist acts

EFA made a submission to an Attorney-General’s paper proposing changes to the national classification scheme to allow “material that advocates terrorist acts” to be refused classification. The proposal used sweeping definitions and would have banned material that only indirectly praised terrorist acts. EFA argued that instruction in or incitement to terrorism was already covered by the existing classification scheme, and that detailed justification needed to be given for changes that risked major collateral damage.

Telecommunications Interception and Access

Last year, EFA generally supported the stored communications provisions of the Telecommunications (Interception) Amendment Bill 2006. We were pleased to be able to do so after four years of efforts to deal with the vexed issue of stored communications in terms of implementing an appropriate balance between protecting the privacy of telecommunications users and meeting legitimate needs for access by security and law enforcement agencies. We had hoped that when a Bill was introduced to implement recommendations from the Report on the Review of the Regulation of Access to Communications (“the Blunn Report”) concerning agency access to “telecommunications data”, we would also be able to support it. Unfortunately, however, that was not the case. The Telecommunications (Interception and Access) Amendment Bill 2007 included new powers for security and law enforcement agencies and significantly changed the existing access framework. It contained provisions that were not recommended, nor mentioned, in the Blunn Report, and some provisions that were contrary to recommendations in the Blunn Report.

Under the provisions of the Bill, for example, Commonwealth and State criminal law enforcement agencies and ASIO would acquire a new “prospective” power to require mobile phone/device location information to be covertly sent to them by carriers, in “near real time”, for up to 45 and 90 days into the future without a warrant. Access to “prospective” location information enables not only identifying/tracking location but potentially real world, real time, surveillance of a tracked individual’s activities.

EFA made a submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Bill and appeared before the Committee at its sole hearing in July 2007. Regrettably, the Howard government’s control of the Senate has ensured that Senate Committees rarely do anything other than the government’s becking, and this Committee made only token recommendations for changes to the legislation. The issue remains a problematical and controversial aspect of law for any government, and EFA will continue to be involved in seeking genuine reform to telecommunications interception law.

Review of the structure and operation of the .au Internet domain

EFA has been competently represented on the auDA Board for several years by Kim Heitman, who is currently Deputy Chair of auDA. This gives EFA a voice in the important matter of .au domain administration. During the year, EFA made a submission to the Department of Communications, Information Technology and the Arts in response to the Discussion Paper Review of the structure and operation of the .au Internet domain. Thanks to a strong management and a board structure that represents a good cross-section of industry and community interests, the Australian part of the Internet addressing system is leading the world in accountability, security and reliability. Since 1999, hundreds of new registrar and reseller businesses have been opened servicing .au, and the cost of auDA functions to the end-user has been reduced by more than half. EFA’s submissions and policy statements as to the governance of the .au name space have been consistently focused on:

1. Freedom of expression;
2. Privacy for individuals;
3. High value assumed for the .au name space;
4. Transparency in decision-making;
5. Accountability in corporate governance;
6. Reducing costs to end users;
7. Evolving new second level domains within the .au space over time;
8. Promoting the auDA model as international best practice; and
9. Strong involvement in international forums including ICANN.

Integrated Public Number Database Scheme

EFA has been involved for some years in the debate surrounding the Integrated Public Number Database (IPND) and has consistently pushed to improve privacy protection for telephone subscriber information stored in the IPND. In March 2007, in a submission to the Australian Communications and Media Authority, EFA was pleased to be able to strongly support the scheme set out in the draft Telecommunications Integrated Public Number Database Scheme 2007 proposed to be established under section 295A of the Telecommunications Act 1997.

In our view the proposed Scheme contains the necessary components to enable ACMA to ensure that access to the IPND by data users is only authorised for the legislatively permitted purposes specified in the Telecommunications Act 1997 of:

• the publication and maintenance of a public number directory.
• the conduct of research in the public interest, as specified by the Minister in an instrument under subsection 285 (3) of the Act.

We noted that access to IPND data for the above purposes excluded access to unlisted numbers and information relating thereto.

Other matters – administration and the move to a wholly voluntary organisation

The loss of the position of Executive Director, and particularly the loss of Irene Graham’s contributions in that role, has been deeply felt by the EFA. Over the last year, we have had less resources to deal with important matters as they arise. There have been significant resourcing difficulties in the transition to a fully volunteer-run organisation.

We are hopeful that over the next year we will be able to more actively draw upon contributions from members. We need now, more than ever, to hear from members who are interested in helping to draft submissions and policy documents, in engaging in fundraising activities, and, for those members who are legally qualified, in occasionally providing pro bono representation to those individuals and organisations who have been targeted with lawsuits attacking their freedom of speech or seeking to impose liability for the speech of others.

We are optimistic that we, the Board, in collaboration with you, the members, will be able to continue EFA’s excellent tradition of critical advocacy on the important issues that face us in the near future. We look forward to hearing from members who are willing to become involved in this process.

Dale Clapperton
Chair, Electronic Frontiers Australia Inc
15 November 2007