27 October 2009

On behalf of the Board, I am pleased to present the EFA Annual Report for 2009. This report highlights some of EFA’s major activities over the last twelve months; more information can always be found on our website.

I would like to take this opportunity to thank all members of the EFA Board for their contributions this year. I wish to especially thank David Basden and Dan Svantesson, who are both standing down this year. I also wish to thank Dale Clapperton, our previous Chair, for his continued efforts on EFA’s behalf; and Greg Taylor, our previous Treasurer, for his generous help in developing custom infrastructure and ensuring that the transition to our new treasurer went smoothly. Finally, I would like to extend my deep gratitude to Danny Yee, who stands down this year after over thirteen years of service on the EFA Board. We wish Danny well on his future endeavours.

This year has proved to be a very interesting for all of us at EFA. Our biggest campaign, on mandatory ISP filtering, has kept us busy, and we have grown in profile and size. Our media exposure continues to grow, and the public events in which we have been involved over the last year have been very successful. Our membership numbers are up by approximately 50 per cent, and our financial status is very healthy. I would like to thank all of our members and non-member donors for their continued support.

Mandatory Internet Filtering Campaign Update

Over the last 12 months EFA has taken a leading role in speaking out against the Government’s mandatory Internet filtering plan. With the leak of the ACMA blacklist to the media early in 2009, we had a particularly powerful tool to highlight the perils of the new scheme. This year EFA has appeared in dozens of newspapers, written op-ed pieces, given dozens of radio interviews, and appeared on TV to debate the Minister. We have communicated with experts overseas, written to every sitting member of Parliament (see below), and have supplied valuable ammunition to Senator Conroy’s political opponents to use against him in the Senate.

The future of the filter is uncertain, but the Minister continues to push its merits when forced to. Due to embarrassment caused by the leaked ACMA blacklist (compounded by the lobbying of EFA and others), Senator Conroy’s most recent statements on the filtering scheme have talked about a hypothetical “RC-only” blacklist that would contain “almost exclusively” material that is or would be refused classification by the Classification Board. Although this represents a slight narrowing of the scope of the scheme, it does not address any of the fundamental problems. The list will certainly include legal material and its scope is bound to expand in future.

The results of the pilot trials of ISP-level filtering are expected to be made available in the next few months. EFA expects that the results will show that ISP blacklisting is by and large technically feasible, but that “child-safe” dynamic filtering is not. When this happens, EFA intends to ratchet up our campaign highlighting the ineffectiveness and dangerous nature of mandatory filtering.

Fact Sheets to Politicians

At the start of the year, we produced a set of fact sheets on the proposed internet filter, and they look fantastic. We sent these out to every sitting Federal member and Senator, and have received some encouraging feedback from some of our elected representatives. The fact sheets cover the following six areas:

1. Overview: What is the scheme, how did it come about?
2. Cyber-safety: Will the filter protect children and how?
3. Technical issues: How will the filter work and what are the technical difficulties?
4. Filtering overseas: How does this scheme compare to those in other democracies?
5. Combating illegal material: Will the filter crack down on the distribution of child abuse material online?
6. Filtering and free speech: Does the scheme pose a threat to our democratic freedoms?

You can get the print quality PDFs on our website at http://efa.org.au/mandatory-internet-filtering-fact-sheets/. We encourage you to to reuse these as you see fit – they’re good for providing a solid background about why the proposed filter is bad policy.

Appeal to the AAT against ACMA’s Link Deletion Notice

At the beginning of May, our hosting provider received a Link Deletion Notice from ACMA, requiring them to remove a link from our site to a site on the ACMA blacklist. We had originally linked to the prohibited site in order to demonstrate that the ACMA blacklist contained material that was political speech. We believe that doing this ourselves was political speech, and should be protected under the Australian Constitution. More importantly, we believe that such takedown notices ought to be addressed to the operators of websites, not their hosts. We believe that a system that places liability on the hosts and removes any avenue of appeal from website owners risks unjustifiably threatening freedom of speech. Accordingly, while we removed the link (rather than expose our provider to fines of up $11,000 / day!), we have been working with our hosting provider, who have lodged an appeal with the Administrative Appeals Tribunal to contest the takedown notice. Among other arguments, our provider contends that the content to which we linked and the context in which it was presented gave it explicit protection as political speech. (The linked-to content, of course, is not illegal to possess or view.)

R18+ Games

Australia’s lack of an R18+ rating for video games continues to raise public interest. Prominent stories have emerged about the potential for mandatory filtering to block websites that make available prohibited (or potentially prohibited) games, and recent banned games include the much-anticipated Left 4 Dead 2. We continue to await the release of a discussion paper on this issue by the Commonwealth. Following a cabinet reshuffle earlier this year, the Hon Brendan O’Connor has replaced the Hon Bob Debus in the position of Commonwealth Minister for Home Affairs, taking over the role of Commonwealth censorship minister. Minister O’Connor has made no announcement about the status of the discussion paper. We have sought information from the Minister and from the Attorney-General’s Department, but has not yet received a reply.

When the discussion paper is released, we will have a short period to draft a comprehensive submission to the Standing Committee of Attorneys-General. Preliminary work has started, but we need some help from the membership in order to create the best possible submission. If you are familiar with the debate, and especially if you have some expertise on the issues or the relevant research, we would very much appreciate your input. We are experimenting with a wiki drafting process for the submission. Final editorial responsibility will of course rest with the EFA Board, but we hope that our members can help us create a strong submission that advocates for the rights of Australian citizens and gamers. You can find the draft in progress on our wiki at http://wiki.efa.org.au/censorship/r18_games/submission_to_scag. Please contact [email protected] if you have questions, or add yourself to our working group mailing list at http://lists.efa.org.au/cgi-bin/mailman/listinfo/r18games.

Telecommunications (Interception and Access) Act 1979 (Cth) Network Security Amendments

In August, the Attorney-General’s Department released an exposure draft of the Telecommunications (Interception and Access) Amendment Bill 2009 (Cth). At that stage, EFA opposed the exposure draft, pointing out that it did not “provide sufficient clarity or adequate protections for the privacy of network users. ” The exposure draft allowed a very broad discretion to network operators to intercept communications in order to monitor compliance with any applicable contractual arrangements between the operator and their subscribers. The previous definition of ‘network protection duties’ in s 5(1) included monitoring of the content of communications in order to ascertain whether the network was being ‘appropriately used’. Because of the broad undefined nature of the term ‘appropriately used’ and the fact that many AUPs may contain restrictions not on protocols or services that internet users may use but upon the purpose for which those communications are being made, this provision opens the bulk of network communications to potential interception and continuing surveillance.

As the exposure draft was worded, it would have permitted network operators to intercept communications, for example, to determine whether peer-to-peer filesharing traffic was infringing a third party’s copyright interests, or to determine whether the network was being used for excessive personal use. This represented, in EFA’s view, an unacceptable threat to the privacy of internet users in Australia.

EFA is very pleased to report that the Bill, as introduced to the House of Representatives, addresses all of the EFA’s concerns that were raised in the submission to the exposure draft. EFA commends the Attorney-General’s Department on achieving a workable legislative exception to the prohibition on interception of telecommunications that allows network operators to perform legitimate network protection duties without unduly burdening the privacy of end users. Most importantly, the Bill now limits ‘network protection duties’ for all networks to duties relating to ‘the operation, protection or maintenance of the network’. The ability to intercept communications in order to determine whether a network is being ‘appropriately used’ is now expressly limited to operate only in relation to users of Commonwealth agencies, security authorities, or eligible State authorities.

EFA has made a submission to the Senate Legal and Constitutional Affairs Committee in October supporting the Bill in its current form but offering a few suggestions as to how the Bill could be improved by clarifying its operation.

ICANN

EFA was well represented at the July ICANN meeting in Sydney. We are heavily involved in ICANN’s Noncommercial Users Constituency (NCUC), which is the organisation for civil society organisations with ICANN. We are now taking on a leadership role, as EFA Secretary David Cake was recently elected as the representative for the Asia Region on the NCUC Executive Committee. The main issues within ICANN have been related to the upcoming expansion of the generic top-level domain system, particularly lobbying over proposed trademark protection rules for new top-level domains, which in the opinion of EFA and other NCUC members are too strong and potentially threaten free speech. There is also ongoing negotiations to ensure that non-commercial civil society organisations are given a stronger voice relative to commercial internet users in creating ICANN policy.

EFA also unsuccessfully ran a candidate in the annual elections for the board of auDA, which regulates the Australian .au domain name space, and continues to maintain an active interest in domain name issues.

Website redesign

Earlier this year, EFA’s website was redesigned to reflect our updated branding. We also intend to keep blogging about relevant issues in a slightly more informal style, so be sure to subscribe to our RSS feed and/or follow @efa_oz on Twitter.

ACTA

Negotiations continue on the proposed Anti-Counterfeiting Trade Agreement (ACTA). Current information suggests that negotiating parties hope to conclude the agreement in 2010. The next round of negotiations is scheduled for November, and it appears that the most controversial measures on Internet enforcement will be discussed then. We continue to communicate with the Department of Foreign Affairs and Trade (DFAT) about Australia’s position on ACTA, but very little new information is available. The US Trade Representative has made the Internet-related provisions available to a select group of industry bodies and NGOs, but details of the proposed provisions are not publicly available.

We remain highly concerned about the secrecy of ACTA negotiations, and we will continue to monitor the situation and keep you up to date. We are particularly concerned about the proposed internet distribution clauses; we fear that the ACTA may require members to introduce graduated response (three-strikes) regimes or introduce tougher criminal penalties for non-commercial copyright infringement. As more becomes available, we will keep you informed and respond to DFAT as appropriate.

iiNet litigation

We here at EFA, like most in the technology sector in Australia, are keenly following the pending litigation between iiNet and AFACT in the Federal Court. AFACT are alleging that iiNet are liable to copyright owners when their subscribers download infringing material, and that iiNet has a responsibility to terminate the accounts of those subscribers whom it alleges are ‘repeat infringers’. iiNet, on the other hand, argue that they are unable to lawfully monitor the activity of their subscribers, and should not be held responsible for their actions.

We are hesitant to comment on the merits of the case as it is currently under judicial consideration. We strongly believe, however, that this sort of uncertainty poses unacceptable costs to the Australian Internet industry and jeopardises investment in crucial infrastructure. We also believe that Australian Internet users deserve security and privacy in their use of the Internet, and that it is the proper role of the courts, not ISPs, to monitor and enforce allegations of copyright infringements. The Federal Court’s decision in this case has the potential to have a significant impact on the legal and policy landscape for ISPs and end users in Australia; we will, of course, update you as the case progresses.

Legal threats

We continue to receive a significant number of inquiries for legal advice from individuals and small organisations on technology, media, and IP law issues. EFA has a growing network of solicitors and barristers who are able to help give advice in these situations, whether for fee, pro-bono, or at a discount rate, as appropriate to the client and circumstances. Several issues this year have included a trade mark dispute over a non-commercial Australian rules football blog, a defamation suit against the owner of a micro web-hosting service, a defamation suit against the owners of an Australian Internet forum, and numerous copyright and privacy related inquiries.

If you are a practising solicitor or barrister and are available to help out in a for-fee, pro-bono or discounted capacity on issues like these, please contact [email protected]. We rely on volunteers to take referrals when issues like this do come up, and our volunteers have been able to make a huge difference in advising individuals or small organisations on technology law issues. Typically these individuals have little resources and would otherwise be unable to stand up for themselves, so we are very thankful for the involvement of volunteer layers in each of these cases.

Support EFA

There are a number of projects that we are asking for your help with in the near future. We continue to be heavily involved in the mandatory filtering debate, and welcome any new ideas that members may have about continuing to apply pressure on the Government’s proposed scheme. We still encourage you to write to your local member and the Commonwealth Minister, Stephen Conroy. See our campaign site at http://nocleanfeed.com/ for more information.

We also need some help on the R18+ games campaign. If you can contribute to a submission on the forthcoming discussion paper, please help us out. We also encourage you to write to your Attorney-General and voice your support for an R18+ rating. See our wiki site for more information.

Finally, we welcome your input on other areas within EFA’s mandate. EFA is a fully volunteer-run organisation. There are ten members on the EFA Board who make themselves available to handle the administration and a large proportion of the advocacy work, but we rely on our membership not only for funds but for their valuable help. If you feel you have the capacity and drive to donate some time to work on an issue you are passionate about, please contact us with your ideas. We need people who are able to communicate – writers, graphic designers and visual artists, filmmakers, journalists, bloggers, musicians, policy makers, and more – who are willing to donate some time to help on one of our numerous causes. In the future, we hope to grow our network of volunteers to enable us to reach more people and have a greater positive impact on civil liberties and technology policy in Australia.

Once again, I thank all of you for your ongoing support. EFA is fully funded by membership fees and donations, and we could not do any of this without the support of all of you.

Nicolas Suzor
Chair