IN THE COMMUNITY
NTERNET
CENSORSHIP:
THE DEBATE RAGES ON
JANE LEVIN
While we recognise that the
computer and the internet
are a powerful source of
information and entertainment,
we must also recognise that
there is potential for malicious
behaviour and harmful effects.
- Senator Stephen Conroy
Election 07 Fact Sheef
46
T
HERE would be few who would disagree with this statement from Senator Stephen Conroy, who became Minister for Broadband, Commu-nications and the Digital Economy after Labor won the November 2007 federal election. Yet a fierce debate rages in Australia over the best way to tackle the problem of harm, both real and potential, from internet use. Leave the 'protection' of children to the supervision of parents and teachers? Make adoption of content filters voluntary? Use home-based filters or those at the internet service provider (ISP) level? Invest more in the policing of illegal activities (such as child pornography and identity theft)? Increase education programs for children, parents and teachers about online safety? A combination of these things? Nothing at all?The government's proposal, which Is outlined in detail below, is a controversial one. Rather than filtering all prohibited content for those homes with children (the plan in 2007), the filter is mandatory for all web users and only filters out some content that is currently prohibited under legislation. Either way, 2010 was meant to be the year of action on internet filtering. However, with a federal election now called for August, the government has announced that nothing will be done on the issue until 2011.
(ACMA) has the power to enforce restrictions on internet content hosted within Australia and to maintain a 'blacklist' of overseas websites - a list that it then makes available for use in commercially available filfering software. Content is considered 'prohibited' where it is (or in ACMA's judgement would likely be):
• refused classification, or classified as X 18+
• classified R 18+, and nof protected by an adult verifica-tion system
• classified MA 15+ and not protected by an adult verificafion system, where the user has paid to access fhe content.
ACMA can also alert the relevant law enforcemenf agencies to material that is actually illegal (such as child pornography).^ Currently, internet content is only reviewed in Australia when a complaint is lodged with ACMA. ACMA then applies to the Classification Board for the content to be classified. Content that is refused classification (RC) altogether is discussed further below.
The Suicide Related Materials Offences Act 2006 makes it illegal fo use fhe internet to promote suicide or self-harm. There is also some legislation relating to copyright protec-tion, and some state governments have legislation banning the transmission of maferial unsuitable for minors.
What is being proposed?
In 2003, after conducting some research into the online viewing habits of feenagers and fhe dangers posed by access to pornography on the internet, prominent think tank The Australia Institute proposed the idea of a manda-tory internet filfer for children (wifh some opf-ouf abilifies for adults).^ This sparked some serious debate both in the media and in parliament.
At that time, the Labor Party (in opposition) opposed filtering at the ISP level, with Senator Kate Lundy remarking:
Unfortunately, such a short memory regarding the debate in 1999 about internet content has led the coalition to already offer support for greater censorship by actively considering proposals for unworkable, quick fixes that involve filtering the internet at the ISP level."
However, what is being proposed now by Minister Conroy (the third version of fhe ALP's policy since the release of its 2007 'Plan for Cyber-safefy') includes a mandafory ISP-level filter. The government has committed $125.8 million^ over four years to the development of a program that is essentially a two-tiered filter system, backed by other supporting
cies). The second tier of the filfer system is a series of grants to encourage ISPs to offer a filfer for additional content, such as X-rated pornography and gambling sites; this will not be mandatory (either for the ISP to offer or for a household to implement). The government is also providing increased funding fo law enforcemenf agencies, research-ers, working groups and education programs for children, parenfs and schools.'^
The mandatory eiement is an iSP-ievel
filter for all households, based on
a new 'blacklist' of RC websites (still
maintained by ACMA and still based
on public complaints, and which will
be added to by international agencies).
The current plan is certainly very different to what was originally proposed in 2007, where homes with children would have a 'clean feed' - in ofher words, the Web that is viewed on your monitor would be free of prohibited material:
[The government] will require ISPs to offer a clean feed internet service to aii homes, schools and public internet points accessible by chiidren, such as pubiic libraries.
Labor's ISP policy will prevent Australian children from accessing any content that has been identified as prohibited by ACMA, including sites such as those containing chiid pornography and X-rated material.^
Now there is a lack of opt-out for households wifhout children and the scope of confent included is narrower - only RC content, rather than the broader concept of 'prohibited material' (which includes X-rated material).
What's all the fuss about?
• it degrades free speech; it's censorship, not protection
Speaking about the government's proposed mandatory filter, Suzanne Dvorak of the Save the Children Fund says that 'Curbing freedom of speech will not prevent the exploitation of children.'^
The RC maferial being caughf in the filfer may contain informafion on topics about which adults, and even
IN THE COMMUNITY
48
such as euthanasia, safe injecting procedures, abortion or even graftiti. These are the grey areas in what may be considered banned material (such as instructions in self-harm or a crime).^ Many opponents (from individuals posting on discussion sites and senior citizen groups attending lectures on how to bypass the filter to organised protest groups such as Stop the Clean Feed, Libertus.net and No Clean Feed) consider this a potential attack on free speech. However, it is worth remembering that there is no legislation to protect a right to free speech in Australia (other than parliamentary privilege). Australia is the only liberal democracy in the world without formal overarching human rights protection.
Opponents of the mandatory filter also believe that Minister Conroy has been using the 'protect children from pornogra-phy' line to lull Australians into believing that this will be the end result of the filter Instead, it is argued, it is really a means for ACMA to eftectively decide what adults should and shouldn't see, because a mandatory filter aftects everyone in a household, even if there are no children. Moreover, it bans material that it is not illegal for adults to view in other formats simply because the material is on the Web. It also doesn't ban a lot of the material that parents wouldn't want their children to see.
Some of the more conservative supporters of the govern-ment's plan, such as Jim Wallace of the Australian Christian Lobby, point to a belief that the Web (and the internet) was not set up to become some kind of free-for-all.'" Indeed, when Tim Berners-Lee (and others) invented the World Wide Web just over twenty years ago (the technology of the internet itself being 'born' decades earlier), it was to share research information. Berners-Lee's larger vision, however, was for it to be a social medium, not a technical one: a medium where people could create and share information, not just look at it. And Berners-Lee is an advocate for an open Web. When asked about the issue of child pornogra-phy on the internet during an address to the US Congress in 2007, Berners-Lee stated: 'Every powerful tool can be used for good or evil. Those things are illegal with or without the Web.'"
• It will block legitimate and legal content
It's not self-evident what is refused classification and what is not, and any regime that attempts to impose this sort of broad and relatively nebulous concept upon something like the internet will inevitably block material which is valuable as well as material that other most people generally consider to be harmful.
- Dr David Lindsay, Monash Law School'^
A document purporting to be the ACMA secret blacklist was leaked in March 2010. Approximately half of the websites listed were not related to child pornography. There were various poker websites, YouTube links, regular porn websites, Wikipedia entries, euthanasia websites, websites of
While the concept of the objective
'reasonable person' is used
throughout our legal system
-for example, to determine whether
someone's specific conduct has
breached the law - the concept
of what is 'offensive' to someone's
'morality' is a much more loaded
and subjective question.
fringe religions, Christian websites, the website of a tour operator and even the website of a Queensland dentist.'^ Minister Conroy issued a statement claiming that the list was not the ACMA list and many websites on it had never been part of any ACMA investigation."
Even so, the concept of RC content is an interesting one, both for the material it won't protect children from and the information consenting adults won't be able to view. What constitutes RC content is contained within several legisla-tive instruments'^ and is interpreted by ACMA ofticials. In very short summary, it includes imagery of child sexual abuse, bestiality or sexual violence; detailed instruction in crime, violence or drug use; and/or material that advocates committing a terrorist act (as contained in films, publica-tions and computer games).'^ Importantly, it also includes material relating to sex, drug misuse or addiction, crime, cruelty or violence, or the depiction of a child who is, or appears to be, under 18 (whether engaged in sex or not) that may cause oftence to a reasonable adult or offend against reasonable standards of morality and decency." But who is a 'reasonable adult' and what causes 'offence'? While the concept of the objective 'reasonable person' is
the iaw - the concept of what is 'offensive' to someone's 'morality' is a much more loaded and subjective question. It also needs to be noted that in many cases, it is not illegal for adults to possess or privately view RC material in other formats in most states (except for child pornography).'^
• It won't actually achieve what it sets out to
While Senator Conroy has remarked on a number of occasions that the government knows it is not a silver bullet, in fact, it would be a blank.
' I [ - Libertus.nef'
I
Obviously, child pornography is not commonly distributed openly via websites (although websites may be hijacked for fhis purpose). Child pornographers often use ofher infernet tools, such as FTP, instant messaging, chat rooms, Usenet groups and peer-to-peer networks, none of which are cov-ered by fhe filfer The filter will also nof monifor high-traffic websites such as YouTube (because that would essentially prevent the whole system from working), nor will if monitor proxy servers (a common way for those in the know -including school children - to bypass blocking systems).
Added to this is the fact that ISPs will not be required to block adults-only material such as X-rated or R-rated por-nography or prohibited content (which is banned under the existing rules) and will not pro-actively search for RC sites (via keyword filfers or ofher mefhods). This would seem to take much of the sting out of the 'protecting children' argu-ment outlined in Labor's 2007 election policy and beyond.
It seems the filter will do nothing to protect children from what parents are really concerned about, dangers like
said that, the other measures relating to funding for educa-tion on cybersafety and more funding for policing of these issues are surely a welcome move.
• The filter itself is flawed
According to anti-filfer websife Stop the Clean Feed, trials of the filter blocked as many as 7.8 per cenf of legitimate websites (close fo one in ten); as much as 13 per cent of maferial that should have been blocked was still accessible.^"
The government released reports from fhe lafesf friáis by Enex and Telsfra, both of which raised concerns abouf the ease with which anyone who wishes to will be able to circumvent the filfer using proxy websites and virtual private networks. Enex tested thirty-seven differenf circumvenfion methods and virtually all of fhem worked.^' Bofh Enex and Telsfra reporfed that the filtering/blocking systems trialled were incapable of prevenfing circumven-tion/bypassing of fhe blocking systems.^^
In response to criticism that the filters will be relatively easy to circumvent. Minister Conroy has argued that there are other laws that are relatively easy to get around, like those that deal with under-age smoking, speeding, drinking and driving, and that this does not serve as an argument for nof having fhese laws. He also adds fhat the filfer is only one parf of fhe sfrafegy: increased federal police, educafion and some funding for broader opt-in filfers are part of what is a multi-pronged approach.^^ However, in their 2007 policy. Labor criticised the Howard government's filter on exactly the same basis.^''
Professor Clive Hamilfon, a long-time supporter of Internet filtering, has made this point on many occasions:
I
IN THE COMMUNITY
50
Too often the global nature of the internet has been used to argue that nothing can be done about the problem of pornography. We disagree and propose a strategy with
three components: a schools-based educationai program, an opt-out system of ISP-filtering and some additional measures to protect children from exposure.^''
The major difference now, however, is that the govern-ment's proposal has no opt-out for adults.
• It creates a false sense of security and is paternalistic The Save the Children Fund believes that the proposed filter will lull parents into a false sense of security, that they may become less vigilant because of a false belief that the fiiter will absolutely protect their children.^^
Many see supervised internet use, including the use of voluntary home-based filters (even those like the Howard government's NetAlert system, now discontinued), as the best way to protect children. Indeed, the Internet Industry Association's Peter Coreónos has stated that home-based filters are a more flexible way to protect children than the government's proposed system:
If it is your intent to provide families with customisable solutions and you want to accord to famiiies the right to determine what their children can and can't see, then you're far better off to implement those user solutions at the user end ... You couldn 't possibly impose that level of control atan ISP end without significantiy degrading the network for all users.^^
Almost every other Western countries that have some form of internet filtering (such as the United Kingdom, Norway, Sweden, New Zealand, France and Canada) implement it on a voluntary basis.^° In the UK, for example, ISPs voluntarily agree to block URLs that are on the Internet Watch Founda-tion's 'secret black list' (these sites are apparently mainly those that contain images of child pornography). The technology used to block the sites is up to the particular ISP. It is believed that up to 95 per cent of UK households have their content filtered (because many of the larger providers have agreed to use filtering). However, even this system (though voluntary) has had its share of controversy, espe-cially in relation to the unintentional filtering of inoffensive content and the limited ability of filters to actually properly filter out the content they intend to. There are similar issues plaguing the government's proposal here.
Where to from here?
The idea that the internet is this scary place that parents don't understand, that everybody needs protection from, isn't a view that's heid by most of society. What it actually is is a scary piace that poiiticians don't understand, that politicians need protection from and that's why we're having this debate now.
- Mark Newton, ISP network engineer^'
When Clive Hamilton commissioned his research on access to child pornography by teenagers in 2003, 93 per cent of parents of teenage children said they would support a filter to prevent access to extreme and violent pornography.™ However, now that the details are available about what type of filter the government is actually proposing, some of the latest polls indicate a sharp turnaround in opinion. In a recent Fairfax Media online poll, 96 per cent (of 45,154 people who voted) said they did not support the proposed filtering policy.^'
Media coverage nationally and internationally has grown particularly negative, while search engine giant Google has also voiced its objections. Google Australia's head of policy, laria Flynn, has stated that 'The scope of RC is simply too broad and can raise genuine questions about restrictions on access to information.'^^
Google Australia's head of policy, laria
Flynn, has stated that The scope of
RC is simply too broad and can raise
genuine questions about restrictions
on access to information.'
It is understood that representatives of the US State Department have met with Australian government repre-sentatives to discuss the issue. And when discussing the internet censorship plan on the ABC's Q&A program, the US Ambassador to Australia, Jeffrey Bleich, said that
The internet needs to be free. It needs to be free the way we have said the skies have to be free, outer space has to be free, the polar caps have to be free, the oceans have to be free. They're shared resources ofali the peopie of the world. ^
As reporter Quentin McDermott concluded in his May 2010 report on the ABC's Four Corners program:
Kids wiii continue to access inappropriate content... and ... [people]... will continue to learn how to bypass the filter when it does eventually become law. One thing can be guaranteed. A debate which has poiarised the community will continue to rage.^'
Jane Levin is a freelance writer, editor, website producer and communications professions. A former iawyer, Jane also holds a degree in applied media. Jane's feature writing focuses on media, poiitics, law and the arts: <www.jeimedia. com.au>. •
^ Michael Flood & Clive Hamilton, 'Regulating Youth Access to Pornography', Discussion Paper no. 53, The Australia Institute, March 2003, p.10.
" Senator Kate Lundy quoted in Asher Moses, 'Web Censorship Plan Heads Towards a Dead End', The
Sydney Morning Heraid, 26 February 2009, <http:// i
www.smh.com.au/news/technology/biztech/web
-censorship-plan-heads-towards-a-dead-end/2009/02/26/1235237810486.html?page=fullpage>, accessed 23 June 2010.
•• Department of Broadband, Communications and the Digital Economy, Cybersafety Plan, <http://www.dbcde. gov.au/online_safety_and_security/cybersafety_plan>, accessed 25 June 2010.
'^ 'Measures to Improve Safety of the Internet for
Fami-lies', media release. Senator the Hon. Stephen Conroy, 15 December 2009, <http://www.ministerdbcde.gov. au/media/media_releases/2009/115>, accessed 23 June 2010.
' Senator Stephen Conroy, 'Labor's Plan for Cyber-safety', Election 07 Fact Sheet, 19 November 2007, p.5. ' Suzanne Dvorak, 'Conroy's Filter Will Not Make the
Internet Safe', The Drum Unleashed, 9 February 2010, <http://www.abc.net.au/unleashed/stories/s2813455. htm>, accessed 23 June 2010.
' Access Denied', Four Corners, ABC, 10 May 2010. '° Jim Wallace interviewed in 'Access Denied', op. cit. " Roy Mark, 'Berners-Lee Gets Technical on The Hill',
lnternetnews.com, 1 March 2007, <http://www. internetnews.com/bus-news/article.php/3663101/ Berners-Lee-Gets-Technical-on-The-Hill.htm>, accessed 24 June 2010.
'^ Dr David Lindsay, Monash Law School, interviewed in 'Access Denied', op. cit.
" Asher Moses, 'Internet Censorship Plan Gets the Green
Light', The Sydney Morning Heraid, 15 December 2009, <http://www.smh.com.au/technology/technology-news/ internet-censorship-plan-gets-the-green-light
-20091215-ktzc.html>, accessed 21 June 2010. '" Phil Sweeney, 'ACMA Blacklist Leaked to Wikileaks?',
Whirlpool, 19 March 2009, <http://whirlpool.net.au/ news/?id=1839>, accessed 25 June 2010.
'^ These are the Classification (Publications, Films and
Computer Games) Act 1995, the National Classification Code and the Guidelines for the Classification of Films and Computer Games 2005.
'* Department of Broadband, Communications and the Digital Economy website, ISP Filtering FAOs, <http:// www.dbcde.gov.au/funding_and_programs/cybersafety _plan/internet__service_provider_isp_filtering/isp_filtering _live_pilot/isp_filtering_-_frequently_asked
_questions#3.0>, accessed 24 June 2010.
" National Classification Code (May 2005), Legislative Instrument F2005L01284.
" Libertus.net, <http://libertus.net/censor/isp-blocking/
Stop the Clean Feed, <http://www.stopthecleanfeed. com>, accessed 23 June 2010.
'Access Denied', op. cif.
Liberfus.net, <http://libertus.net/censor/isp-blocking/ au-govplan.html#s_32>, accessed 23 June 2010. 'Access Denied', op. cit.
Conroy, 'Labor's Plan for Cyber-safety', op. cit., p.4. Flood & Hamilton, 'Regulating Youth Access to Pornog-raphy', op. cit., p.10.
'Access Denied', op. cit.
Chloe Lake & Andrew Ramadge, 'Government Dodges Questions on Axed NetAlert Web Filter Funding', news. com.au, 26 January 2009, <http://www.news.com.au/ technology/netalert-web-filters-dumped-over-holidays/ story-e6frfroO-1111118667453>, accessed 23 June. 'Germany and Italy have mandatory ISP filtering, however in both cases they are of a clearly limited scope. In Germany, the scope is child abuse material and in Italy, it is child abuse material and unlawful gambling sites. Australia's proposed regime would uniquely combine a mandatory framework and a much wider scope of content, the first of its kind in the democratic world.' laria Flynn, Update to 'Our Views on Internet Mandatory Filtering', Ofticial Google Australia Blog, 16 December 2009, <http://google-au.blogspot. com/2009/12/our-views-on-mandatory-isp-filtering. html>, accessed 20 July 2010.
Mark Newton interviewed in 'Access Denied', op. cit. Michael Flood & Clive Hamilton, 'Youth and Pornogra-phy in Australia: Evidence on the Extent of Exposure and Likely Eftects', Discussion Paper no. 52, The Australia Insfifufe, 1 February 2003.
Poll attached to Asher Moses, 'Government Goes to War with Google over Net Censorship', The Sydney
Morning Herald, 30 March 2010, <http://www.smh.com.
au/technology/technology-news/government-goes-to -war-with-google-over-net-censorship-20100330-r9bp. html>, accessed 23 June 2010.
Flynn quoted in Asher Moses, 'Google Baulks at Conroy's Call to Censor YouTube', The Sydney Morning
Herald, 11 February 2010, <http://www.smh.com.au/
technology/technology-news/google-baulks-at -conroys-call-to-censor-youtube-20100211 -ntmO. html>.
Q&A, ABC, 12 April 2010.
'Access Denied', op. cit.
