American legal study shows flaws in Labor's Internet filtering plan

Colin Jacobs, vice chair of Electronic Frontiers Australia, has alerted attention to a legal study which is sharply critical of many aspects of the federal government’s proposed Internet censorship plan. Writing in today’s issue of Crikey, Jacobs links to a damning Brooklyn Law School research paper called “Filtering in Oz: Australia's Foray into Internet Censorship” written by Brooklyn’s Assistant Professor of Law Derek E. Bambauer (the study can be freely downloaded as a pdf file from this site). The paper is a wide-ranging examination of the legitimacy of proposed filtering legislation. While the study lauds the government’s openness about its filtering goals, it finds the plan wanting in key areas of transparency, the over-blocking of material, and accountability.

Jacobs says the study is important and is a “serious embarrassment” for Minister Stephen Conroy as he attempts to implement his controversial filtering plan. According to Bambauer, the mandatory Internet censorship will put Australia at the forefront of the spread of this practice from authoritarian regimes into Western democratic nations. Not only do the plans raise concerns about the transparency, accountability, and over-blocking, there is likely to be a serious conflict between efforts to block unlawful content and the economic and social desire to expand speedy broadband access.

Bambauer points out key differences between Australia’s plan and internet censorship elsewhere in the west such as in the UK, France, Germany and Canada. Britain has a “voluntary” system whereby ISPs block traffic to and from a list of IP addresses supplied by the local industry watchdog, the Internet Watch Foundation. Court cases in France and Germany have forced search engines to remove content related to “hate speech” from their search results. Canada’s Cleanfeed, meanwhile, blocks “access to Internet addresses specifically containing child pornography images”. However the Rudd Government plan is the first time that a western democracy has introduced a formal statute to require ISPs to block users from accessing certain materials on-line.

Labor take the matter seriously. In its first budget last year, the federal government allocated over $128 million for cyber safety and law enforcement of which $44 million was dedicated to filtering. More importantly, the focus for filtering slowly broadened from their election promise of blocking unlawful material to blocking content perceived as harmful more generally. The problem for Labor is that is dependent on the support of Family First’s Steve Fielding in the Senate to pass its general program of legislation (itself a huge irony as it was Labor preferences directed away from the more ideologically similar Greens that elected Fielding despite him gaining less than 2 percent of the vote). The socially conservative Fielding wanted more comprehensive blocking, and Labor were compliant, offering a two-tiered scheme where the first mandatory level of filtering would include unlawful content, while the second level would block other sensitive material (such as sexually explicit sites) but would allow consenting adults to bypass its restrictions.

Under the current legal framework, Australia regulates content through a classification system that divides material into prohibited, restricted, and generally available zones. The government’s proposal for generating block lists does not gel well with the complaint-based classification scheme used for Internet sites. Currently ACMA (the Australian Communications and Media Authority) operates a federal level "complaint and takedown" system for objectionable Internet content. ACMA relies on the classification board to classify content and the board treats Internet material like films. If the material is prohibited and is hosted in Australia, the ACMA sends a take-down notice to the ISP or Internet Content Host. For foreign based material, ACMA notifies Web blocking software vendors to add the site to their block lists. This list currently comprises of roughly 1300 URLs but is not in the public domain. Nor are censorship decisions by the Classification Board or ACMA on Internet material which remain secret unlike decisions on off-line content.

Under the new proposal, Labor will add to the 1300 URL block/black list with a further list of child pornography sites from other sources, most particularly Britain’s Internet Watch Foundation. Immediately there is an issue with this plan as responsibility for classification will move to offshore bodies that have no accountability within Australia. Secondly there is no universal cultural definition of what constitutes child pornography and elements that might be illegal in some jurisdictions (such as nude images of 16-year-olds in Australia or the USA) may be legal in other jurisdictions (such as Japan). Foreign lists undercut a country’s ability to render its own, sovereign judgments about what material is unlawful.

Bambauer says Australia information restrictions derive primarily from the democratic political process rather than being constrained by law. Because there is no free speech guaranteed under the Australian constitution, the government has greater leeway to censor Internet materials than would be possible in countries with bills of right such as the United States or Canada. There is an obvious downside in terms of performance; a pilot test of filtering found decreases in access speeds of up to 86 percent. But even if this problem is fixed by the time of release, filtering also carries considerable costs in overblocking, transparency, and accountability that may not be evident initially.

Stephen Conroy has been open about Labor's reason for filtering in order to stamp out child pornography (though there are valid concerns about what additional legal content would be blocked particularly by the opt-out layer of the system). However, Bambauer scores Australia poorly on grounds of transparency, narrowness and accountability. On the issue of transparency, he says the Government has fluctuated on what material it will target for blocking while refusing to reveal the names of the sites blocked. Minister Conroy has also recently expanded the plan to include vaguely defined “other unwanted content”.

Bambauer has also examined the results of the early tests to do an estimate of narrowness. He believes Australia is likely to follow the trend towards overblocking in most filtering countries, both to prevent circumvention and to avoid underblocking. He says the tests show that the more effective methods that prevent access to banned material also tend to catch more unrelated sites in their filters. Also, filtering is not effective against the practice of sharing information. Child pornography, for example, is increasingly shared over peer-to-peer networks rather than the Web and filters can only crudely block P2P completely or let all traffic through unfettered.

Accountability is also an issue. Bambauer says the policy appears to be strongly shaped by Senator Fielding who is a proponent of wide-ranging, mandatory filtering. He also decries the government tendency to suppress dissent on the matter. He cites the example of ISP employee Mark Newton who is an active opponent of the plans. Belinda Dennett, a policy advisor to Conroy, sent an e-mail message to the Internet Industry Association (IIA), stating her “serious concern that an IIA member (Newton) would be sending out this sort of message.” Bambauer also neatly skewered Conroy’s argument that opponents support child pornography by saying attempts “to conflate policy differences with support for unlawful behaviour undermine accountability.”

Bambauer says Australia’s filtering plan is a “natural experiment”. He warns this is a worldwide trend and says the debate over filtering has shifted, from whether it should occur to how it would work. The concern, he says, is as filtering is increasingly adopted in the West, censorship that blocks access to material rather than legal measures that punish access “will become increasingly seen as normal rather than problematic”. Censorship can be an effective tool, but it is a dangerous one, he concludes. “Australia’s example will have much to teach about both aspects”.