Could the clean feed bypass parliament?
Blog Post | Blog of Scott Ludlam
Tuesday 17th March 2009, 6:08pm
by ScottLudlam in
In order to impose its controversial internet filter, the Government has the choice of trying to pass new laws through a hostile Senate, or working with existing laws, which would mean negotiating its way around a legal minefield and a highly sceptical internet industry.
Right now, many people are curious to know whether the Government could bypass Parliament in this way to introduce mandatory net filtering by some other means.
If they choose to bypass Parliament, it could go something like this. Schedule 5 of the Broadcasting Services Act sets out default rules which govern the actions of internet services providers (ISPs) when no industry code is in operation. Under these default rules, the Australian Communications and Media Authority (ACMA) has the power to issue a standard prevention notice requiring ISPs to take reasonable steps to prevent end users from accessing prohibited content. The standard prevention notice could potentially be used to enforce the filter, but in order for the Government to use these default rules, a number of stars would need to be perfectly aligned.
Firstly, ACMA would need to deregister the existing industry code, and it is not at all clear that ACMA has the legal authority to do this.
Secondly, even if the existing industry code could be set aside and the default rules came into effect, it could be argued that as an ACMA prevention notice is being given to all ISPs, it's a legislative instrument and therefore it could be disallowed by Parliament.
Thirdly, under the default rules, the standard prevention notices must be "reasonable". Reasonableness is determined by considering a number of factors, including whether the notice is technically and commercially feasible, and whether it is in the public interest and accommodating towards technological change, as well as considering how it affects social needs and the provision of services. Even if the Government does go down the path of encouraging ACMA to enforce its filter using the default rules, it seems inevitable the decision would be subject to legal challenge on the basis of any one of the above factors.
Alternatively, the Government could indirectly implement its filter by seeking court orders to block content. This again seems like a highly unlikely scenario. In order for such an approach to be successful, the Government would need new legislation in place to both prohibit the offending conduct and impose a relevant injunction. It's unlikely that the current laws would be enough for the plan to work since it would be difficult to argue that the current legal framework mandates ISPs to filter content in the way the Government has proposed.
That just leaves Parliament as the Government's other option. With the Greens, the Coalition and Senator Xenophon yet to be convinced - and the Government still on the losing side of the community debate - that's not looking very hopeful either.
It is not at all clear where the Government is going with this thing - the trial is beset with problems, organisations from Choice magazine to Save the Children and Reporters Without Borders have condemned it, and the blogsphere still teems with scornful, well informed dissent.
The Minister has still offered nothing by way of justification except that net censorship was ALP policy in 2007. This kind of glib deflection does nothing to inspire confidence: with stakes this high we can only hope the Government has seen the writing on the wall and is quietly rethinking the whole idea.
First published on New Matilda
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Comments
Filtering can work... But what about others outside the safe net
Hi, i believe filtering can reduce bad adult content?
Are scammers websites being targeted also?
What about the people outside the safety net, the laws should target and prevent bad content originating from a) Australian domains, b) Australian servers or c) Austrian IP address space. These are very different from each other, I call it, "Lets not harbor or house the net crooks."
Technically you're correct.
Well technically you are right. The filter can reduce 'bad' adult content but too a very limited extent. But as has been stated many, many times, there are a number of free software products that enable a far greater level of filtering and monitoring available to all members of the Australian public. We should have the right to choose what we think is appropriate for ourselves and our children.
Furthermore the majority of illicit content that is considered unnaceptable is shared via peer to peer networks which the proposed filter will not be able to monitor. If you want more information about the filter visit http://whirlpool.net.au/wiki/?tag=cleanfeed and make sure you know all the details.
Cheers!
meet.mrnrg - There are
meet.mrnrg - There are already existing methods to combat illegal web activities in Australian domains, Australian servers or Australian IP address space. These filters are "suppose to" combat stuff outside of Australia. I put "suppose to" in quotation marks because I believe that they don't work.
Is that a yes?
I don't think "net crooks" will ever be stopped. The technology available to filter ISP servers are iffy at best and plagued with problems that even if are solved there will always be some way around them. Kind of like the illegal copying and selling of movie and gaming DVDs and music CDs. I think it took less than 2 days for developers to break the Microsoft X-Box DVD gaming codes if that's any indication. So the question remains whether or not this is the government's real intention: You better hold on tight the slippery fun slide will be the only thing left for everyone and what the government (i.e.: big business) wants. Then they'll charge you whatever you can afford to get on board!
Just wrong.
The major problem with this is that it impinges on freedom. As we've seen recently, the orignal list was around 1,300, and now it's been upgraded already to over 10,000. How long before they're just banning sites left right and centre? Labour government? greensmps.org.au is banned, and you can't do a damned thing about it, other than be willing to be fined 11,000 a day. As also shown moderately recently (I believe there was an article at theage.com.au), the blacklist isn't particularly difficult to obtain.
Now, I don't support illegal activities, I wholly support legal activities, and as stupid as that sounds, this filter obstructs legal activities, such as banning legal sites, that are just morally reprehinsible to the particular government at the time. If we don't act soon, our government is going to go the way of America, where you pretty much have to be a fundagelical believer to get into office. Let's try to become a little more Scandanavian, where people keep their beliefs private.
Not bloody likely.
Clear and Present Threat to Democracy
Whatever the excuse, and whatever the merits of censoring genuinely objectionable sites (like child porn), no government should be allowed to implement technology like this without independent judicial oversight, because once that technology’s in place, it can be turned on anything a government doesn’t like.
I know the economy is at risk. I know the government’s got the ETS all wrong, but there is no greater threat to this nation than giving a government the ability to arbitrarily censor criticism and if anyone doesn't believe that once the technology’s in place, sooner or later a government will use it, then they are out of touch with the real nature of the political animal.
"it's not the real blacklist, but leaking it is wrong"
Or so says Stephen Conroy, who I suppose we can call Uncle Stephen, since he is so keen to look after us so nicely.
He also threatens the publishers of the inaccurate (he says) blacklist with federal prosecution.
Interestingly, he claims that only one person actually has the complete list. Quite how ISPs are supposed to comply with monitoring the ban without the list is a mystery; or if they're given the list, how it's supposed to remain secret is also a mystery. Thus in practice the government's producing the list may actually make it easier for interested paedophiles, terrorists and the like to find the sites they want.
So anyway, according to Conroy, even mentioning the existence of the particular banned websites should be a criminal act. I guess the websites are meant to just disappear.
Someone ought to read the list of banned sites into the parliamentary record.
What the?
I have been following this and have signed various petitions. Australia if this goes through will be included with countries like China and Zimbabwe in internet filtering. I think the Greens should have ads on TV that say we are against this and we are voting against this. It will give the Greens wide coverage and increase the Greens membership and supporter base. Why isnt that happening?
German wikileaks domain owner raided by German police
... might this be at the request of the AFP?
See here.
"Shortly after 9pm on Monday the 24th of March 2009, seven police officers in Dresden and four in Jena searched the homes of Theodor Reppe, who holds the domain registration for "wikileaks.de", the German name for wikileaks.org. According police documentation, the reason for the search was "distribution of pornographic material" and "discovery of evidence". Police claim the raid was initiated due to Mr. Reppe's position as the Wikileaks.de domain owner.
"Police did not want to give any further information to Mr. Reppe and no contact was made with Wikileaks before or after the search. It is therefore not totally clear why the search was made, however Wikileaks, in its role as a defender of press freedoms, has published censorship lists for Australia, Thailand, Denmark and other countries. Included on the lists are references to sites alleged to contain pornography, including child pornography. Wikileaks has not published any images from the sites."
Uncle Stephen will dynamically filter it all for you.
Stephen says
Put your hands on your eyes
Put your thumbs in your ears
Or you’ll get a surprise.
Stephen knows
What’s wanted, what’s not
You’re not going to like it
But that’s what you’ve got.
For the broadband so narrow
No filter is finer
Blinkered you go
Just like in China.
There are jobs for the censors
Getting paid for their hobby
And praise from the Australian
Christian Lobby.
If you were grown up
Or went overseas
Paradise is 10,000 URLs
All eager to please.
But here in the pre-school
You’re safe from the Net
Protected by Stephen . . .
You want to bet?
The real purpose of the clean feed
One has to wonder if the government has an agenda that goes beyond preventing access to child port & other illegal content. The technology to circumvent this kind of censorship is well known to many high school students who often use anonymous proxies to logon to Facebook and MSN etc, playing a game of cat and mouse with schools' IT support technicians. What it will achieve however, is give the government of the day a powerful tool to stifle any discussion it sees fit. Internet censorship erodes the freedom provided by the only remaining mass media that is not encumbered by commercial and or government control. I hope we don't have to become the world's only western democracy to censor the net and join an esteemed club that includes China, North Korea and Saudi Arabia. The billions already squandered on the consultants, the meaningless testing and the hardware hand-outs to the ISPs could have gone a long way to bolstering the capabilities of police who actually deal with Internet related crime.
implementing mandatory censoring of the internet
If i did not no what i was doing in my job i would be sacked why has the rudd government left Senator Stephen Conroy who has no creadability with the Australia's population or business leader's in this such an important job. the greens have won my vote over there stance on the china like Censorship of Australia.
Censorship
Dear Senator,
I am utterly opposed to the broadband censorship the Federal Government is trying to introduce and would like your support in opposing it. It will not protect children - that is a false premise. Parents, shools, libraries etc need to be supplied with internet filtering software, and parents will have to be aware of what their kids are doing on the web.
The possibility for abuse of a website banned list is enormous. As an Australian I want access to information the rest of the world has. I will not be told by a government what I can or cannot read or believe. We are not China. I appreciate your help in this matter.
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