A Small Matter of Enforcement


Just what is it with senators and the communications portfolio? Counting the number of IT experts who give Helen Coonan credit for much of anything needs only one hand, and even then there are plenty of digits to spare. On the other hand, even in her most inexplicable moments of befuddlement, Coonan did not stoop to the level presently occupied by her replacement, Stephen Conroy. Hot on the heels of its "think of the chiiildren!" policy, the Rudd Government has announced that it is seriously studying a "commonsense" proposal to target people who illegally download films and music.

Of the many things this policy isn’t, commonsense is high on the list. It is impractical, unreasonable, inexplicable and utterly unworkable. Conroy could do us all a huge favour by quietly dumping it now and saving a few hundred million bucks.

Let’s start with the basic stuff. First, the internet is quite large. Too large, in fact, to monitor with any degree of effectiveness. The number of places where people can now access copied media is already virtually incalculable. Previous attempts – notably in the US – have cherry-picked one significant avenue to monitor, such as Kazaa. But for every program you kill in this business, many are born. And given the rate of expansion and development of file-sharing networks, it seems a tad presumptuous to assume that we’ll be able to throw the sort of resources required to eliminate them – particularly given that the combined efforts of regulators worldwide have thus far conspicuously failed to do so.

A basic problem, as yet unresolved and unlikely to be, is that filtering systems are prone either to under- or over-block. The former means that the filter is failing in its primary aim and allowing through files which it shouldn’t; the latter means that it nabs a lot of false positives.

Filtering technology remains substantially flawed, and very difficult (some say impossible) to implement on a wide scale. For one thing, the cost to ISPs would be immense; for another, it would also require massive server power, and even this would not prevent a slowing of the entire network, which is dismal by international standards as it is. Many of the downloading mechanisms being targeted by Conroy are also introducing encryption, which allows them to get around all but the most determined deep packet inspection – basically a sophisticated type of firewall. There’s every chance the pendulum will continue to swing further away from regulators, too.

A superficially attractive option, then, might be to simply ban all peer-to-peer (P2P) traffic. It’s an option the Senator should dismiss out of hand, however, for it presents a veritable array of problems of its own, starting with the many legitimate uses of P2P. Skype, for instance, is totally P2P-based; Joost is set to evolve into a mainstream media alternative; a number of companies and websites also legitimately use BitTorrent to distribute large files, to save money on bandwidth.

The trend, moreover, is gathering momentum by the day. It isn’t hard to foresee an era when virtually all data-heavy distribution is enabled via P2P. Due to the size of files and the huge data costs (even more so for us in Australia – a country in our position should be embracing it with open arms), P2P has already started to become a far more feasible way of distribution. Getting users to share some of the data distribution costs means smaller players can stay in the game too – yet another point the Communications Minister might do well to consider before he launches a pointless blitzkrieg on users.

What all this amounts to is the reiteration of a simple point: there is no such thing as pirate-proof download prevention technology. And even if such a thing did exist, it would be a moot point. As a colleague observed, "Kill P2P in its present form today and it will be back before sunrise in a new form." There is a case that the growth of P2P parallels that of the mythical Hydra – every time an avenue is shut down, users move to more sophisticated programs, ensuring yet-faster advancement.

In addition to this imposing list, there’s the small matter of enforcement by ISPs, who in effect have to police the whole system. The ISPs themselves aren’t keen on this for a multitude of good reasons, of which the extra hassle is just the start. Enforcement by ISPs is akin to having Telstra listen in on every call you make, with the power to cut you off and alert the police if they don’t like what you’re saying. Oh, and all your conversations are recorded for later use. Fortunately, despite the best efforts of those involved in crafting the anti-terror laws, we’re not quite at such a stage (yet).

Perhaps the biggest worry, though, is the UK connection – Conroy has expressed "particular interest" in the UK’s proposals.

New Labour has, shall we say, something of a reputation for preferencing spin over substance. The combination of a trigger-happy finger on the spin-cycle button, alongside the expenditure of telephone number sums with no tangible results, worries me that, by default, we’re going to end up with a half-arsed setup which doesn’t do anything for anyone.

Yet perhaps the most frustrating thing is that this grandstanding comes at the expense of areas where Conroy could make a real difference. One particularly egregious example is the current debate over net neutrality. At present, the internet basically operates on a first-come, first-served basis – things get processed in the order in which they’re sent. Many of the big operators, such as AOL, aren’t too keen on this arrangement – they want the ability to stream certain types of traffic (for example, VoIP) faster, and others (such as P2P) slower. If the possibility is opened up for companies to pay to have their traffic moved faster, the impact on smaller operators will be devastating.

Ironically, this is an area where tightly-controlled regulation would be beneficial and effective. Instead, Conroy’s plan takes us a long way in the opposite direction. The proposal for ISPs to act as enforcers doesn’t just have surveillance implications – it has profound significance for the way the internet works in Australia. If not quite a direct proposition, it’s not hard to envisage a situation where ISPs take advantage of this leverage to extract such concessions.

As far back as 1993, web pioneer John Gilmore was quoted in Time as saying, "The net treats censorship as a defect and routes around it." Fifteen years of development has only served to strengthen this notion.

It’s a shame the Senator can’t see it too.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.