Budget Estimates Thursday 30 May - Legal and Constitutional Committee
Senator LUDLAM: Commissioner, thanks for joining us. I have a question relating to uses of Section 313 of the Telecommunications Act to block websites. Commissioner Negus is doing so at the moment.
Mr Wilkins : There were people here last night to answer these questions and that could have been raised then-
CHAIR: Is that also outcome 3?
Mr Wilkins : in outcome 3.
Senator LUDLAM: I will explain the context, but in a moment. I have been referred here by another agency who refused to answer a question and said I should talk to the Attorney-General's Department. But let us come back to it and it might be disclosed as we go. Commissioner, the Federal Police uses Section 313 notices under the Telecommunications Act to compel internet service providers to knock out a subset of content listed by Interpol-their so called 'worst of' list-and maybe you want to just track back for us the history of when you first started issuing those, and how you think that process is going.
Mr Negus : Thank you for the question, I will again pass to Deputy Commission Phelan, who is in charge of our high-tech crime operations area, which monitors these things.
Mr Phelan : The information that I have here is that the first time we started to issue 313 notices specifically in relation to blocking websites was in relation to the Interpol 'worst of' list on 24 June 2011.
Senator LUDLAM: To your knowledge, has the AFP used that section or powers authorised by that section of the act in that way before to knock content out of websites?
Mr Phelan : Yes, we have. Previously, we have used section 313 as part of the mitigation strategies from the joint banking and finance team within the Australian high-tech crime centre. That commenced in about May of 2004. Those were traditionally used to block foreign IPs hosting muling, phishing and other malware sites.
Senator LUDLAM: So that is not really so much about knocking content out; that is if there is malicious software that is emanating from a particular server?
Mr Phelan : Yes, that is right.
Senator LUDLAM: Is there anywhere I could find background on the history of the sorts of activities that section of the act has been used for? My inclination was that it had been used in that way. Can we find how many of these notices are issued in an average year since '04, for example?
Mr Phelan : I am not sure if we would have that information. We do not keep records around that generally. Ever since we have aggregated it in the high-tech crime area in relation to child exploitation material, we have got very distinct numbers of how many we have done in that period of time.
Senator LUDLAM: I understand that. I am just trying to get a sense of how else the Federal Police uses these notices because now it appears that ASIC and one other agency-and I am seeking to find out from within this room who that is-are using them. I am just trying to get a constrained idea of how the Federal Police uses them.
Mr Phelan : Section 313 is not limited to blocking websites. It is a requirement that content service providers, ISPs or telecommunications carriers do everything in their power to assist law enforcement and stop offence against the criminal law. It is not only about blocking websites. The Australian Federal Police do use that section for other requirements that we do have that are not related at all to blocking websites-that, as a matter of fact, have nothing to do with websites. They are about carriers assisting the AFP in lawful duties under warrant et cetera. To be honest, I do not want to go into that component. It is very sensitive operational material.
Senator LUDLAM: I am not seeking information on that. I am seeking more information on the rather more novel use of that section of that act to take out content which you have just told us you first started doing against the Interpol list a year or so ago.
Mr Phelan : Yes.
Senator LUDLAM: Before that, to your knowledge, had the Federal Police used that section of that act to knock content out or was it being used more for these broader array of activities you are describing now?
Mr Phelan : No. It was mostly used for the blocking of the content. Having said that, in relation to malware and that sorts of things, we have stopped using it for that purpose.
Senator LUDLAM: Why is that?
Mr Phelan : Because it is not an efficient method. We have found that over time it is much more useful and, in fact, far more valuable to get in contact with those who are hosting the material and block it at the source, and get them to just tear down the sites and so on offshore and work with the companies and countries that own the domains. That is a far more useful method that trying to block it from here. When we block here, we block a particular domain. We do not go for the IP address.
Senator LUDLAM: That was where ASIC has gone and tied their own shoelaces together and overblocked about 1,200 sites. As far as you know, in terms of knocking content away, because this did not attract a huge amount of controversy when it was announced, the only time you would use those notices in that way is to block against the Interpol list.
Mr Phelan : Absolutely correct, yes.
Senator LUDLAM: How well do you think that is working? Have you noted any hiccups or hitches in the administration of that scheme?
Mr Phelan : No, the advice we have got from the ISPs is that it has not slowed down their sites at all. We have no complaints from them. For the ones we have sent notices to, they are all at different stages about where they are at in terms of blocking content. Some are helping at the technical stage and others are working through what they need to do. We have had no complaints so far. I may also add that we have not had a discernible increase in the number of referrals either. The way it works is this: the sites redirect someone who tries to access those sites to the Interpol site. That is the way the AFP works.
Senator LUDLAM: Yes, I am familiar with that. ASIC is using these notices to knock out certain categories of sites and there is an overblocking instance. There is one other agency-I was just told before by the minister for communications-within the Attorney-General's portfolio also using these notices. Could somebody at the table illuminate me as to who that is?
Mr Wilkins : Sorry, we do not comment on national security matters, Senator.
Senator LUDLAM: So it is a national security agency?
Mr Wilkins : We do not comment on those matters.
Senator LUDLAM: So it is a national security agency?
Mr Wilkins : We do not comment on those matters, Senator.
Senator LUDLAM: You are commenting. You just told me it is a national security matter.
Senator Ludwig: No, he said that he was not commenting on it.
Senator LUDLAM: I did not ask whether it was national security. Somebody within the Attorney-General's portfolio, which is significantly broader than national security, is using section 313 notices to knock content off the web.
Mr Wilkins : It is a national security matter. We are not commenting on it, Senator.
Senator LUDLAM: That has been very useful. Thank you, Mr Wilkins. So, back to the AFP. ASIC and one other national security agency is using these notices to knock out particular categories of content. I will not comment on this agency, which will not be named for some reason, but as far as ASIC is concerned, this content is unlawful and is therefore being knocked out for that reason. Does the AFP consider the use of these notices for other forms of unlawful content, whether it be for copyright infringement, or take a pick of all sorts of material, that these notices would be used to take that content out, and if not, why not?
Mr Phelan : The short answer is no. We do not have plans.
Senator LUDLAM: Why is that? There is content out there that you know to be illegal and you know other agencies are using these notices to compel them to be taken down. Why would you not use them in that way? I am not inviting you to; I am just wanting to know what the rationale is to why you are not.
Mr Phelan : We are trying to do what we can to stop the abhorrent at this stage, obviously the crimes of child exploitation. We are doing everything we possibly can, that is lawfully available to us to do everything in relation to this.
Senator LUDLAM: And this is one of those matters.
Mr Phelan : We obviously cannot prosecute everybody, so this is about trying to stop it at the source so that people do not even have access to the site. I have no doubt that it is labour intensive from our point of view. At this stage we are concentrating our efforts on that particular crime type because we think it is effective. Not only that, I might add that there is a fair bit of rigour that goes around what sites to block.
Senator LUDLAM: I think you will find that is why there has not been a huge amount of controversy over the practice of blocking.
Mr Phelan : I think that is a part of what you are saying. There is a lot of rigour that goes around which sites to block. Blocking a site is not just a routine thing to do. It is a very important step, and something that we do not take lightly, therefore, there is a lot of rigour around it and that is why we pursue it in relation to child exploitation material.
Senator LUDLAM: It is not entirely the question I put to you though. Is there any reason why you are not using it to knock out other categories of sites, as you would appear to be lawfully enabled to do?
Mr Phelan : No particular reason, I suppose. If we wanted to block those sites, and it was within our power, I suppose we could.
Senator LUDLAM: I am telling you it is within your power. It appears, on my reading of the law, to be entirely within your power. You are choosing not to.
Mr Phelan : Well, it is not that we are choosing not to; we are choosing to do it on the other sites, I suppose.
Senator LUDLAM: You are choosing not to do it for other categories of sites. I am not trying to entrap you here; it is just my plain English reading of it.
Mr Phelan : In law enforcement there are many conscious decisions one has to make to do everything, such as search warrants on all sorts of crime types. We cannot do everything to everybody and at this stage we have made a very conscious decision that we are going to use these rather intrusive powers to do this particular thing at this stage.
Senator LUDLAM: Thank you very much. Thank you for your time.