Conroy shifts ground. Film at 11

Smartcompany magazine is reporting that Conroy has shifted ground in a Senate estimates committee meeting. I'm shocked! Shocked! I say. [Late note - Christians upset, film at 12]

Communications Minister Stephen Conroy said in a Senate estimates committee yesterday that the Government could take two approaches to introducing a scheme, one mandatory and one voluntary.

"Mandatory ISP filtering would conceivably involve legislation ... voluntary is available currently to ISPs," Conroy said.

"One option is potentially legislation. One other option is that it could be (on a) voluntary basis that they (ISPs) could voluntarily agree to introduce it."

The comments are the first indication that the Government would consider a voluntary code, after having spent the last 18 months declaring the filter would be mandatory for all ISPs.

Senator Conroy has scaled back some elements of the filter recently, including changing the definition of content to be blocked from "unwanted content" to "content that is refused classification".

What happens when an ISP refuses to introduce "voluntary" filtering? Will the ACMA then prosecute that ISP at a threat of $11,000 per day if it allows links to sites with "refused classification" content, as it is doing now, to chilling effect upon freedom of speech?

Meanwhile, Conroy said in the same hearing that the Government is "considering options for greater transparency and accountability in respect of the blacklist".

A regular review of the list by a committee or independent panel may be formed, as well as a regular review of complaints made about the list.

Oh yeah? We're going to have representative oversight, access to the list to independently check it for errors, notifications to content providers that they have been filtered, and a complete independence from political (i.e., religious) interference? Sounds remarkably like the Howard government's filter... as if anyone is surprised.

Here's the Hansard transcript:

ENVIRONMENT, COMMUNICATIONS AND THE ARTS REFERENCES COMMITTEE

Senator LUDLAM—... What is the process of getting off the blacklist for somebody who finds themselves on there? Can you appeal your appearance on there or is a site notified? There are a couple of examples that have been used.

Senator Conroy—This is the blacklist that has existed for nine years that you are talking about?

Senator LUDLAM—That is correct, yes. What is the process for getting off that if you are put on it inadvertently or if somebody has hosted material on your website that you were not even sure was there?

Ms O’Loughlin—Generally, if somebody came to us in the first instance to say that they felt that they were on the blacklist for a reason that they did not understand then, of course, we would look at the matter.

Senator LUDLAM—How would they know that they are there? The list is secret and we are not meant to know what is on the list.

Ms O’Loughlin—That is an issue. There are two parts to the scheme itself. Firstly, for those sites we find prohibited located in Australia, their hosts receive a takedown notice, so they are very much aware.

Senator LUDLAM—That is right. It is the overseas hosts.

Ms O’Loughlin—It is the overseas hosted. Very rarely do we receive any correspondence. In fact, it is quite often difficult to find overseas hosts and overseas providers. There is no requirement under the current act for us to notify overseas based providers when we do add them to the filter. The concern over the last few months has been some websites when we have investigated them that have had links through to child abuse images which have been placed there. Their sites have been hacked. They have been placed there by other parties. A couple of months later, in most of those cases, you will find that they came off our blacklist. In those circumstances it is quite difficult for us because often, particularly if it is child sexual abuse imagery, we have referred those to law enforcement agencies and it is really incumbent on us not to do anything with those sites until law enforcement agencies have finished their investigations. It is quite a difficult area for us. We try to handle it by this regular review that we do of the URLs to make sure that if those links no longer provide access to prohibited content we remove them as quickly as we can.

This is a very interesting exchange (and bless Ludlam for taking this cause up - the only one to do so. Because of him, I am probably voting Green henceforth, as the sole opposition party in place right now). O'Loughlin (Ms Nerida O’Loughlin, General Manager, Industry Outputs Division of the department) is forced to note that people can only find out if they have been blacklisted if their ISP notifies them, and that even then it can take several months to rectify (this can cause a business to fail, by the way, if they have been hacked).

Shortly afterwards, Conroy says

Senator LUDLAM—You cannot be held responsible for what people may have done with it once it was leaked.

Senator Conroy—The Broadcasting Services Act sets out the regime which requires ACMA to assess online content. It also sets out the mechanism for the ACMA black list, and this has been in place since 2000, as I have already mentioned. The government is considering options for greater transparency and accountability in respect of the black list. It is not possible to publish the list as it contains links to child sexual abuse material and this would be a criminal offence. We are considering options which could include a regular review of the list by a panel of eminent persons or a parliamentary committee or a review of all URLs by the classification board. These issues will be considered along with the pilot trial on filtering before the government makes final decisions on the implementation of the new policy.

Senator LUDLAM—Can you tell us what you are reading from there? Is that a press release or is it an internal document?

Senator Conroy—No, it was my notes.

So now we have policy being made on the fly... again.

Ms O’Loughlin—If I can just add also that any person who is adversely affected by our classification decision can apply for review of the decision to the Commonwealth Ombudsman or the Federal Court obviously. Where we have gone to the classification board for an assessment they can also go to the review process through the classification review panel board as well.

Senator LUDLAM—I guess I would go back to where I started with this, which is that because the list is secret for the reasons that you have both outlined, certainly in the case of the examples that I just mentioned, they were not aware that their sites had been hacked until they read about it in the media. Because the list itself is secret your rights of appeal are a bit limited.

Conroy then reverts to the bullshit he delivered on the SBS Insight program, that obviously one of the victims knew he had been hacked and had fixed it, which ignores Ludlam's point entirely. This guy is a sleazy piece of crap. You can read the whole thing here.

More on the ACMA censorship of political content

The Register has a good piece here. They note that this means that even linking to content rather than having it is sufficient to attract the $11,000/day fine, and ask how many hops are sufficient to be OK. If I link to a site that links to a site that links to the offending (in this case anti-abortion) site, am I liable? This gets more fucking ridiculous by the day.

I hope he was pushed

So Mick Keelty is going early and the panegyrics are starting up. I believe Keelty's spineless subjugation to the political interference of the previous government, and his opportunism in gaining "special powers" for the AFP, have been among the greatest disasters to Rule of Law in Australia, and have gone a long way to re-establishing the "special branch" mentality of the old style of policing in Australia [see also here, here and here]. The Haneef affair is only the tip of it. How much else will we hear about over coming years as the gags are removed?

I hope that he was pushed by the present government, but I doubt it. Labor is traditionally in favour of large government bodies, and they would see what he did as building a better instrument of government policy. I too see it this way. Our difference lies in thinking that it is a good or a bad thing. Although I am not a "small government" advocate, when it comes to unnecessary police powers I am as libertarian as it gets.

Political censorship of internet linkage begins in Australia

The host ISP of Electronic Frontiers Australia has been served a take-down notice for linking to an R-rated "blackbanned" site, itself not in Australia, in a page that was a political comment on the merits (or demerits, rather) of mandatory internet filtering in Australia. I put the entire text of their notice below. This is exactly what we were told would never happen by the minister. It is exactly what everybody who ever thought for ten minutes on the subject knew would happen.

EFA gets link removal notice

Posted by Colin Jacobs | Censorship, Mandatory ISP Filtering | Tuesday 5 May 2009 3:14 pm

EFA’s web hosting provider was today the recipient of a Link Deletion notice from ACMA for an article on our web site ironically entitled “Net censorship already having a chilling effect“. The original article included a link to a page at abortiontv.com that includes graphic images and was previously added to ACMA’s blacklist for being “R-18+”-level material. (For more information on the ACMA net censorship system, see here and here.)

There are many reasons why this should alarm Australian net users. Most significantly, the link was part of a political discussion about the merits of the existing and future Internet censorship policies. The link was offered as a demonstration of the sorts of controversial content that could and would be included in any such proposal. No “offensive” material was included on our site itself. Nevertheless, we were forced to remove the link on pain of severe penalties.

To be clear, EFA published only a link to a page that is hosted overseas and is on ACMA’s prohibited list. Viewing the potentially R-rated page itself is not in any way illegal, and no system is yet in place to enforce the blocking of such web pages. One may well wonder why a link to a legally viewable page should draw the threat of legal sanction while the content itself remains visible. Because the link was on a web page hosted in Australia, the hosting provider - not EFA ourselves, who have more control over the content - falls under Australian legal jurisdiction and could be so served. What this accomplishes is uncertain.

This system, which costs Australian taxpayers millions each year, is clearly unworkable. Because the content is hosted overseas, it remains untouched by ACMA’s directives. Any links or commentary on prohibited content can be protected by the simple expedient of posting it on a web site hosted overseas. No letters from the Australian media regulator, issued months after complaints are filed, will reduce the availability of such material. If a link to a prohibited page is not allowed, what about a link to a link? At what number of hops does a hyperlink become acceptable?

This is a textbook case that demonstrates that there is no sharp dividing line between “political” speech and other content. At the edges of public policy are issues which will inflame passions and lead to images, video and words that are offensive to many people. Trying to stamp these out, especially on the Internet, not only diminishes our democracy but is pointless and paternalistic to boot.

On the Internet, a discussion about some information is often barely distinguishable from the information itself. The current ACMA censorship regime accomplishes little apart from achieving a Howard-era political objective, and makes it clear how far behind the curve political thinking is when it comes to the technical realities of the Internet. We now seem set to move to a new stage where the perceived shortcomings of the current system are to be remedied by legislation making the blocking of overseas content mandatory. It goes without saying that such a block will be easily circumvented by those with the motivation, and material of genuine political interest will find a way to proliferate despite the ban. It is average Australians who will be left wondering what they should and should not be viewing, and not know what controversial material has been deemed unacceptable by the censors.

With fines of up to $11,000 per day threatened against our hosting provider, we have little choice but to comply with ACMA’s directive. However, we are investigating an appeal of the order on the grounds that it stifles a legitimate political discussion on the merits of the Government’s internet censorship policies.

Full text of the LDN here.

Don't trust filterware

They can cause a major problem of national security.

Incidentally this is who we are emulating.