s313 Website Blocking – the Plot Thickens

Under intense questioning from Greens Senator Scott Ludlam at Senate Estimates hearings this week, the Department of Broadband, Communications and the Digital Environment has revealed that there are three agencies that have used section 313 of the Telecommunications Act to block websites.

These agencies are ASIC, as publicised recently, the Australian Federal Police, who the Communications Minister announced last year would be using this power to block ‘the worst of the worst’ websites containing child exploitation material, and ‘one agency within the Attorney-General’s Department’.

Communications Minister Stephen Conroy refused to name this third agency and referred Senators to the Attorney-General’s Department. DBCDE officials advised that they had hosted a meeting last week which included a variety of Federal Government agencies to discuss the use of s313 for website blocking. Having listed the entities represented at the meeting, it was only very reluctantly revealed that ASIO had also attended the meeting.

At a later session, with the Attorney-General’s Department and Australian Federal Police present, Senator Ludlam took up Minister Conroy’s invitation to ask the Department who this third agency is. The Departmental officials responded with ‘we don’t comment on National Security issues’ and refused to elaborate. It is reasonable to conclude therefore that this third agency is ASIO. ASIO’s Director-General David Irvine later refused to confirm nor deny whether they were this agency but did confirm that they have the power to do so. He stated that if ASIO was to use this power, it would only be in a case where there was a ‘significant and probably relatively immediate threat to lives’.

We are unlikely to ever hear much, if anything, about ASIO’s use of this power, if they are in fact the ‘third agency’, so we must be hopeful that the Inspector General of Intelligence and Security exercises their oversight powers to ensure this power is not being used inappropriately.

The Federal Police Deputy Commissioner Michael Phelan advised the Senate that the first time they used s313 to block websites listed on the Interpol ‘worst of the worst’ list was 24th June 2011, which was some five months before Communications Minister Conroy announced that this power would be used in this way, in lieu of the government’s decision to finally abandon its proposed mandatory internet filter. Where sites are blocked in this context, users are redirected to the Interpol website.

Deputy Commissioner Phelan did however confirm that the AFP does not currently use s313 to block website content for any other purpose, noting that it is “far more valuable to get in contact with those that are hosting the material and block the content at its source…and working with the various companies and countries that actually own the domains and that’s a far more useful method than to try and block from here.”

It is somewhat reassuring to see that the AFP, at least, are using this power within the scope that has been publicly announced and that they recognise the limited effectiveness of website blocking as a means for preventing access to allegedly harmful content.

Meanwhile, ASIC chairman, Greg Medcraft, in response to his organisation’s recent blunder in blocking over 1,200 websites (including over 90 websites using .au domain names), yesterday told a stockbrokers conference that “We are reviewing our procedures to ensure that this does not happen again” but also indicated that they are not about to stop using this power to block sites, saying, “we don’t apologise for blocking the sites of criminal fraudsters and we will continue to take action to prevent scammers ripping off Australians.”

EFA remains deeply concerned about the scope for government agencies to take unilateral action to block websites. Though there is no evidence available to suggest that any State government agencies have also used this power, it would appear to be possible for them to do so under the current interpretation of s313 of the Telecommunications Act. As Senator Ludlam raised in his questioning of the AFP, it is possible that local councils may also be able to use this power, using the justification of ‘protecting public revenue’.

It is clearly a totally unacceptable situation to have dozens, if not hundreds, of individual government entities with the power to unilaterally block websites. Minister Conroy has called for and is understood to be taking action to ensure ‘greater transparency’ in the use of this power, and while this is an important first step, EFA believes more needs to be done.

Clear guidelines and constraints need to be placed around the use of this power, and EFA believes that judicial warrants should be required for its use. A review and potential amendment of this part of the Telecommunications Act is therefore required to ensure that Australians can have confidence that a mandatory internet filtering regime is not being implemented by stealth.