The Labor Party’s "Plan for Cyber Safety" is much like the itsy bitsy spider trying to climb the water spout. It popped out on a sunny day five days prior to the Federal election, got washed away with the first drops of public criticism, and crawled back into its hole to regroup. Once the rain had cleared, it attempted the climb again.
Right now, public outrage is raining pretty hard on the proposed policy.
The original "Plan for Cyber Safety", released during last year’s election campaign, said that a Labor Government would:
"Provide a mandatory clean feed internet service for all homes, schools and public computers that are used by Australian children. Internet Service Providers (ISPs) will filter out content that is identified as prohibited by the Australian Communications and Media Authority (ACMA). The ACMA ‘blacklist’ will be made more comprehensive to ensure that children are protected from harmful and inappropriate online material."
When the Rudd Government came to power, Senator Stephen Conroy was appointed the super-human task of delivering this policy. Now, one year later, a thorough search of Conroy’s website reveals no mention of the plan.
The closest indication it is possible to get of the Government’s current thinking on "cyber safety" is in the transcript of the Estimates hearing of the Senate Standing Committee on the Environment Communication and the Arts from Monday 20 October, when Greens Senator Scott Ludlam questioned Conroy on the types of content that would be blocked by the system. This was what the Minister said:
"We are talking about mandatory blocking, where possible, of illegal material … we are enforcing current law and ACMA determine this based on existing law … so you can have a chat with them about how they go determining it. But the general sort of stuff that we are talking about is child porn and they are the sorts of sites we are targeting. We do not believe that you should be able to opt in to child porn. I am sure you do not either."
Child pornography has been the Minister’s default response whenever he has been challenged on the need for a mandatory filter. Of course, laws already exist against the production and use of child pornography. Expressing the frustration of many of the plan’s critics, Ludlam asked Conroy during the same hearing: "I am just wondering if I can put these questions to you without being accused of being pro-child pornography?"
Conroy’s response: "I was wondering if I could get the questions without being accused of being the Great Wall of China."
During question time on 11 September, Ludlam also managed to get this piece of information out of the Minister:
"The pilot will test filtering specifically against the ACMA blacklist of internet prohibited content, which is mostly child pornography, as well as filtering of other unwanted content" (my italics).
What then is "illegal" or "unwanted" content? What is currently on the ACMA blacklist and what may be put on the blacklist in the future?
The definition of what is illegal is dealt with under the Broadcasting Services Act by use of the terms "prohibited content" and "potential prohibited content".
On the internet, prohibited content is that which has been classified RC or X 18+ by the Classification Board; or content that has been classified R 18+ by the Classification Board but where access to the content is not subject to a "restricted access system" (that is, a site that you can access without being advised of its content and confirming by a click-through that you are over 18 years of age).
Potential prohibited content is content that has not been classified by the Classification Board but that if it were, there is a substantial likelihood that it would be prohibited content.
The next part of the puzzle that Senator Conroy seems reluctant to explain is that some significant changes were made to the Broadcasting Services Act (contained in the Communications Legislation Amendment (Content Services) Act 2007) that came into effect on 20 January 2008, which affect how prohibited content and potential prohibited content is dealt with for Australian-hosted sites versus those that are hosted overseas. The dark secret wrapped up in the Senator’s finely spun web is that the scope of illegal overseas-hosted content has significantly broadened.
Prior to 20 January, potential prohibited content hosted overseas was only content that was potentially RC and X18+ — it did not include content that was potentially R18+. So this means that in Senator Conroy’s terms "illegal", "unwanted" and most significantly "other unwanted content" to which mandatory ISP filtering may apply includes potentially R18+ content that is not subject to a restricted access system. We are talking here about R18+ content from overseas that is legal for adults in Australia offline but is termed prohibited content when on the internet.
Does the lack of any reference to these recent amendments on the Department’s or Senator Conroy’s websites indicate that they are oblivious to them — or are they just hoping no one will notice?
What is of equal concern is the lack of safeguards against how the ACMA will determine what in its reasonable opinion is likely to be RC, X18+ or R18+.
For content that is hosted in Australia, the mechanism for regulation by ACMA is through complaint and a take-down notice. If the person hosting the content disputes the notice they are entitled to apply to the Classification Board with rights of appeal to the Classification Review Board. The administration of this system by ACMA is conducted in strictest confidence and it is impossible to know precisely what has been taken down — but at least the person hosting that content gets a chance to argue their case.
Contrast the mechanism for dealing with overseas-hosted content, whereby ACMA refers it to the police if "sufficiently serious" and notifies the (currently voluntary) ISP filterers to update their filters to include this content. The person hosting the content will have no notice of it being filtered, however, and will not know it is being censored in Australia. In the case of child pornography this is fine, but we are dealing here with X18+, which is legal in the ACT in videos and magazines, and R18+ content that simply has no access system but which is otherwise legal for adults anywhere in Australia.
The question then of what Conroy means when he says he is considering mandatory filtering of "mostly child pornography as well as filtering of other unwanted content" needs to be urgently addressed.
Until we know more, it is safe to assume that Senator Conroy’s mandatory ISP filtering proposal will place the decision of what we see and hear into the hands of the employees of ACMA. We will not know who made the decision, what the content was that was deemed to be potentially prohibited, and no one other than ACMA and the ISP will have any right to know or right of review.
And yet he wonders why comparisons are made to the great (fire)wall of China.
My hope is that Conroy will wait until the report on ISP filtering tests comes out, bow his head in pragmatic resignation to the regrettable limits of technology, drop mandatory filtering entirely and begin again to ascend the political water spout.
My fear is that he will persist and attempt to apply substantial indiscriminate blocking of overseas content on the internet. The problem is that the course of action he takes is more likely to be driven by his reckoning of the numbers on the floor of the Senate than his reading of the report.
Nature has shown us it takes eight legs and as many eyes to build and manage a common garden web. Only Tim Berners Lee could know what it would take to manage the world wide web.
I have a feeling Senator Conroy is less concerned about the world wide web than about doing whatever he can to avoid getting caught in the web that he is spinning.
The author would like to thank Irene Graham for the substantial information on her website libertus.net and her assistance with this article.