An law expert is warning that under the Australian government's proposed mandatory internet content filtering scheme Australians will have no way of finding out what "illegal" content has been censored and blocked online, while Greens Senator Scott Ludlam is voicing his concern over communications minister Stephen Conroy's ambiguity regarding exactly what content will or won't be blocked, and who will be able to opt-out of the filtering.
Conroy's mandatory internet filtering proposal caused a stir (see opposite page) when it was revealed a member of his department tried to censor severely critical comments made on the Whirlpool broadband forum by an Internode network engineer regarding the merits of ISP-level filtering.
Now, Graham Bassett, a barrister at Byron Bar Chambers and a teacher of internet law at Queensland University of Technology, warns that under current non-digital censorship laws a schedule of content that has been censored is made available to the public, however no such freedom of information will be available for public access to monitor what is censored and blocked under the government's mandatory internet filtering scheme.
Bassett points to a Freedom of Information application lodged by the Electronic Frontiers Association in February 2000 to obtain information about internet content that had been the subject of a complaint to the then Australian Broadcasting Authority, now the Australian Communications and Media Authority (ACMA), under internet censorship laws that came into force on January 1, 2000.
EFA chair Dale Clapperton told Computerworld Australia that the government refused to provide that information and the Administrative Appeals Tribunal accepted the government's argument that making that information public would undermine its work with international law enforcement agencies.
"The government at some stage along the way actually amended the Freedom of Information Act to say that this type of information could not be FOI'd," Clapperton says, warning that the ramifications of that ruling mean the list of websites put on Conroy's proposed blacklist will not be accessible to the public.
"We're not permitted to know what is on it — essentially we have to take their word for it. That was bad before when the blacklist was just being provided to manufacturers of filtering software, but now that the government is proposing to block access to everything on that blacklist by every Australian, it is unspeakably bad."
Bassett confirms that Australians will have no recourse to determine what has been blocked, once it is on the blacklist.
"If you have a situation where what is being banned is never made public, then how do we know that there hasn't been an extension beyond material which infringes censorship publication, for example a political party or some people that might be defined as a terrorist organisation? The content becomes based upon whatever might be the whims of the people controlling those filters and the services that report to the filters," he says.
Bassett says the EFA's unsuccessful bid to access the ABA's list of banned online content under FOI laws means that particular legal avenue to establish what falls under mandatory filtering is a no through road. Australians, he reminds, have no explicit freedom of speech within the constitution.
"There are cases under the constitution where, for example, there is freedom of speech in relation to political expression, and that's been held in a number of cases. For example, in the future if you did find or were able to get evidence showing that some political group has been added to these filters, particularly at the ISP level that never gets seen by people, there might be some room for challenge there. But if those filters don't get published, how will you ever know?"
Bassett says the term "illegal" in an online context is ambiguous, where child pornography, defamatory material or content that violates copyright infringement could all be considered illegal content.
Clapperton warns that special interest groups are already pressuring the government to add so-called "illegal" content to the blacklist.
"[Independent Senator Nick] Xenophon has said he wants to block access to internet gambling sites because they are supposedly illegal; the copyright holders will want to block access to all the web sites on their sh** list; the Muslim lobby groups will probably want to block access to the Catch The Fire Christian Ministries because they are inciting racial hatred; the Jewish lobby groups will want to block access to Frederick Tobin, any other holocaust-denying websites and Hamas; and the Family First Senator [Steve] Fielding has said he wants to block access to "pro-anorexia" websites.
"Every organisation with an axe to grind and any kind of political clout will be lobbying the government to extend the blacklist to block access to whatever it is that pisses them off. They don't even tell the operators of a site that it has been blacklisted, which as a practical matter means there is no appeal for these decisions. In the case of a false positive it is really dependent on somebody discovering it by chance," he says.
Greens Senator Scott Ludlam grilled Senator Conroy during a Senate Estimates hearing last week over the details of what will be considered "illegal" under the filtering scheme, and what level of filtering users will be able to opt-out of.
"I'm no clearer than I was before the conversation I had with the Minister last week. What I think they are trying to do is have two levels: One level where everything which is "illegal" would be blocked, and there would be a less restrictive list of material that would be automatically blocked and you can opt-out of that. I don't think they are all that clear themselves how that is going to be technically possible," he says.
Ludlam questions Conroy's comparison of Australia as following other countries such as the UK, Canada and New Zealand where filtering of blacklist material had been introduced.
"It got really muddy around the subject of what other countries were doing, and what would be considered mandatory and what would be opt-out. He really muddied the waters on the countries that they are trying to compare us to. My understanding is not a single one of them has instituted or even seriously tried to institute mandatory content blocking. As far as I am aware they are all trialling optional content blocking," he says.
"None of them are really having a proper go at mandatory filtering. When you look at the countries that are attempting mandatory filtering of 'illegal' content on the 'Net, it's a very different set of countries: China, Burma, the UAE and other places."
One gaping chink in Conroy's filtering armour is its inability to block data transferred over peer-to-peer networks, which is estimated to account for upwards of 60% of all internet traffic.
"A lot of material on the 'Net isn't live as such, it's being exchanged on peer-to-peer networks and the kind of stuff we're talking about here isn't going to touch that, so that's a large volume of traffic that is just going to go under the radar, and the mandatory content blocking scheme is going to be drawing resources away from probably more useful law enforcement activities," Ludlam says.
Ludlam believes Conroy's lack of clarity over what will and won't be blocked can be attributed to the government still being at the early stage of trialing the filtering technology, which also explains why no path has yet been set for the mandatory filtering to make its way into legislation.
"My understanding is that the tests they have conducted to date weren't all that promising; I don't think they know for themselves exactly how this is going to work. My personal opinion is that it's probably going to fail, and if it doesn't fail it's going to be dangerous. In the meantime we should really be spending the money that they are putting towards this on old fashioned law enforcement, and on the education programs that we already have," he says.
"I'm all for opt-in blocking. If parents want to be able to choose the level of protection in their own homes or if people just basically don't want to run the risk of being exposed to objectionable material they should be given world-class opt-in provisions."
Despite the potential of the financial crisis to overshadow the ushering in of the mandatory filtering, Ludlam says he has received a lot of supportive feedback from various online communities and libertarian groups, and doesn't expect the issue to fly under the radar.
"The online community has a strong and proud record going back as long as the internet existed of having quite a strong civil libertarian streak and of sticking up for the rights of freedom of communication, so I'm pretty confident for that side of it. I'm less confident that our political leaders are really aware of what it is they are playing with."