nic.suzor.net

[ Reposted from the EFA site. ]

Today EFA's hosting provider received a Final Link Deletion Notice from ACMA, requiring us to remove a link to a page that contains images of aborted foetuses from our website. We have complied with this notice because it exposes our host to fines of up to $11,000 per day that we do not remove the link.

The ACMA advises that the page we linked to has been classified by the Classification Board as being R18+ content. A summary of the classification decision is available at the OFLC site, classification Number 56671019. The description of the content we received was that it contained “gratuitous, exploitative and offensive depictions of violence, which have a very high degree of impact.”

In our original post, we explained that we were concerned that the ACMA blacklist included not just child sexual abuse material, but also political speech. We believe that the page we linked to, hosted at AbortionTV.com, was political speech. It is a set of images of aborted foetuses, designed to shock, aimed at furthering the organisation's messages that women should not terminate pregnancies and that abortion should be criminalised.

Our linking to the AbortionTV page, however, was not to support this message. We used the page as an example of over-blocking of political speech by the current and proposed censorship regimes. We are extremely concerned that Australian websites are currently being required to remove links to what we believe is legitimate political speech, even where that speech is offensive. We are also extremely concerned that, if the Government's plan for mandatory ISP filtering goes ahead, such websites will be blocked without any transparency or avenue for review.

We believe that linking to the blocked page was essential to communicate our message. We believe that Australia's current and proposed censorship regimes result in the illegitimate blocking of political speech. To illustrate this point, we need to link to what we believe to be an example of a page that has been illegitimately blocked.

Linking to the actual blocked page is important. We could have described the content of the page, but we believe that this would not have been sufficient to let Australians make up their own mind about whether the current or proposed censorship regimes are appropriate. We responded directly to comments by the Minister and others in the current debate that material on the ACMA blacklist is 'illegal' material, and that the proposed filter will not block any political speech. The images on the linked page, being R18+ rated political speech, clearly demonstrate that both of these claims are false. While they may be offensive, they are political in nature and they are certainly not illegal to possess. No amount of textual description would have been as effective at demonstrating this point.

We believe we may have a colourable claim under the implied freedom of political communication. Clause 121(1) of Schedule 7 of the Broadcasting Services Act 1992 (Cth) (BSA) explicitly provides that the takedown scheme “does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.”

The High Court considered the scope of the implied guarantee of political speech in a series of cases in the 1990s. The test developed in Lange v ABC means that laws that laws that “effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect” must be “reasonably appropriate and adapted to serve a legitimate end”, the fulfillment of which is compatible with the constitution.

It is apparent that Schedule 7 of the BSA “effectively burden[s] freedom of communication about governmental or political matters”, as demonstrated by this takedown notice. We might be able to assume that Schedule 7 of the BSA generally serves a legitimate purpose. However, whether it is 'reasonably appropriate and adapted' to that purpose is not clear. In Levy v Victoria, a restriction on protests against duck hunting was appropriate because it was adapted to avoid physical harm to members of the public in hunting areas. This is not such a case. Any potential harm of somebody finding the publicly available R18+ rated images through a link on our website would seem to be far outweighed by the detrimental effect that the takedown notice has on our ability to engage in informed debate about the legitimate scope of our current and proposed censorship regimes.

All this is complicated by the fact that EFA cannot directly appeal this decision. Because EFA does not host its own websites, our provider is the “links service provider” within the meaning of Schedule 7. Under cl 113(5), an application can be made for a review to the Administrative Appeals Tribunal, but it “may only be made by the links service provider concerned” (cl 113(6)).

We are currently investigating potential means of appealing this decision. As Colin already mentioned, this is certainly a worrying example of the dangers of Australia's current and proposed censorship regimes.

Last night I had the opportunity to speak at a forum organised by New Matilda, "The Tangled Web: Beyond an Internet Filter". Many thanks to Rachel Maher and Rod McGuinness from New Matilda for organising the forum. The presentations by Peter Black, Senator Scott Ludlam, and Irene Graham were all excellent and very informative.

I spoke about the rule of law and the legitimacy of the filtering proposals. My slides are available in various formats here:

• OpenOffice
• PDF
• PowerPoint

The audio from the session is available from Peter's post here (direct link, 70MB mp3).

In a statement yesterday, Senator Conroy threatened Australians who were caught distributing the leaked blacklist with criminal prosecution:

“ACMA is investigating this matter and is considering a range of possible actions it may take including referral to the Australian Federal Police. Any Australian involved in making this content publicly available would be at serious risk of criminal prosecution.”

Yesterday, I said that

This is extremely worrying from an accountability and legitimacy point of view. Australian have effectively been asked to take it on faith that the ACMA list is legitimate and only contains so-called 'illegal' sites, does not result in over-blocking, and is both accurate and up-to-date. Any citizen who wants to investigate those claims is faced with the threat of criminal prosecution.

Today I would like to examine exactly what the AFP would need to prove in order to secure a conviction against an Australian for distributing the blacklist.

The first place to start looking is s 474.22 of the Commonwealth Criminal Code, 'Using a carriage service for child abuse material'. This provision makes it an offence, punishable by up to 10 years, to deal with child abuse material, including ”[using] a carriage service to make [child abuse] material available” or ”[using] a carriage service to publish or otherwise distribute [child abuse] material”.

S 474.22(2) provides that intention to 'make available' or 'publish' or 'distribute' is required, but the defendant need only be reckless as to whether the material is child abuse material (ie., should have known, not actual knowledge).

So this raises an interesting question. Is publishing a list of sites that appear to be a superset of the ACMA blacklist 'making available', 'publishing', or 'distributing' the material on the list? If so, is the material on the list 'child abuse material'?

Unless the blacklist is itself 'child abuse material', then it would not appear that distributing the list was the same as 'publishing' or 'distributing' the material on the list. But here's where we run into a bit of a problem. It's not clear what exactly 'making available' means. There's very little case law on this. Is it 'making available' child abuse material to publish a list of URLs that contain child abuse material?

Without case law, making a wild guess, I would tend to think that a court could be persuaded that publishing a list (a directory) of child abuse material 'makes that material available'.

If we take an alaogy to copyright law, for a moment, we have an Australian Federal Court authority in Cooper v Universal that suggests that publishing a list of links is not 'making avialable' the copyright material that is accessible at those links. Justice Tamberlin held that it is the remote servers that 'make available' (and hence 'communicate') the copyright material:

63 I am not satisfied that the Cooper website has “made available” the music sound recordings within the meaning of that expression. It is the remote websites which make available the sound recordings and from which the digital music files are downloaded as a result of a request transmitted to the remote website.



64 As discussed above, the evidence indicates that no music sound recordings are actually stored on the Cooper website. The music sound recordings have initially been made available to the public by being placed on the remote websites. The evidence given by Mr Beckett was to the effect that the digital music files to which links were provided on the Cooper website were also available to users through the internet generally. That is, internet users can access the music sound recordings via an alternative route by directly accessing the remote websites, either by typing that website’s URL address into the address bar on the user’s internet browser or by using a search engine such as Google or Yahoo, rather than by visiting the Cooper website […]



65 The Cooper website contains hyperlinks to thousands of sound recordings which are located on remote websites and are downloaded directly from those websites to the computer of the internet user. When a visitor to the Cooper website clicked on a link on the website to an MP3 file hosted on another server, this caused the user’s browser to send a “GET” request to that server, resulting in the MP3 file being transmitted directly across the internet from the host server to the user’s computer. The MP3 file does not pass through or via or across the Cooper website. The Cooper website facilitates the easier location and selection of digital music files and specification to the remote website, from which the user can then download the files by clicking on the hyperlink on the Cooper website. However, the downloaded subject matter is not transmitted or made available from the Cooper website and nor does the downloading take place through the Cooper website. While the request that triggers the downloading is made from the Cooper website, it is the remote website which makes the music file available and not the Cooper website.

We don't have a lot more authority on what it means to 'make material available'. I have a feeling that Tamberlin J is correct, and that a link does not 'make available' the linked material, but I am also wary that a court may distinguish Cooper on the grounds that (a) it is a copyright case; and (b) assumes that the material is relatively easily locatable without the links provided by Cooper, whereas a court may be persuaded that child abuse material on the blacklist may not be as readily available were it not for the leaked list.

The next point is whether the material is child abuse material. Lets be clear – I have seen the list, I have not visited every site on the list. I have to assume that there are a good number of sites that may currently or may have once contained child abuse material. There are also many, many perfectly innocuous URLs on the list. So, if a person distributes the list, not knowing whether there is child abuse material on the list, are they recklessly distributing child abuse material?

Recklessness requires that a person “is aware of a substantial risk” that there is child abuse material on the list, and that in the circumstances, it is unjustifiable to take the risk. This leads to an immediate problem – a person may be reckless by not checking every URL on the list before distributing it, after a reasonable suspicion that it may contain child abuse material arises. However, I would never advise a person to check the URLs on the list – there is a high risk of criminal sanctions for possession of child abuse material – as in s 228D of the Qld Criminal Code. This seems to imply that a reasonable suspicion that there is child abuse material on the list is sufficient to prevent distribution – as there is no real way to evaluate the risk.

So – to recap, there's still a lot of uncertainty. Depending on how the Federal Court interprets 'making available' in s 474.22, distributing a list of URLs that may have child abuse material on them is very risky.

Lets move on to defences. Section 474.24(1) provides an additional defence if the conduct is of public benefit and does not extend beyond what is of public benefit. Subsection (2) defines 'public benefit':

conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:



(a) enforcing a law of the Commonwealth, a State or a Territory; or



(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or



© the administration of justice;



(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.

Now, there is a fairly remote chance that a court will accept an argument that distributing a blacklist in order to critique the operation of a legislative scheme is 'necessary for or of assistance in […] the administration of justice'. This is, however, a pretty long bow to draw.

The only assistance that we have here is the potential widening of such a defence in political matters, thanks to the implied freedom of political communication. Since this is a topical matter, and the efficacy of the blacklist and of ACMA relates directly to the proposal by the Labor Government to introduce mandatory ISP filtering, I think that there's a good argument that the distribution of the entire list is for public benefit – if it can be shown to be of assistance to the administration of justice.

The accuracy of the list of potentially blocked sites is certainly an important political issue. If it turns out that the list contains significant inaccuracies (as I highlighted yesterday) and that there are no easy ways to review or appeal decisions to block sites, then there are serious legitimacy concerns with the scheme. The Government has asked us to take it on faith that the blacklist is accurate and up-to-date; a leak showing that it is not is very important to the democratic debate.

The next question is whether publishing the list goes further than is necessary in the public interest. Certainly, publishing only some URLs, that clearly do not contain child abuse material, as many have done already, gets some of the message across that the list is not wholly accurate. But publishing the whole list has its significance too – interested citizens are able to see how many URLs appear to be legitimately blocked, what proportion of URLs may have been contributed by ACMA and how many added by a third-party vendor, what type of URLs make up the list, etc. Publishing only a select few URLs is likely to be much less effective, and any exercise in trying to publish detailed statistics is fraught with the dangers of actual possession of child abuse material.

I think there's a substantial argument to be made on the basis of the defence in s 474.24 and the implied freedom of political communication, but there is a very high amount of risk involved. I would certainly not advise anyone to distribute the blacklist under these uncertain conditions.

Unfortunately, this goes to show the limits of a secret blacklist for the democratic process. If Australians are not allowed to know what material is blocked and are not allowed to distribute lists when they are leaked, we will be completely unable to identify whether the proposed legislation is desirable or not. Informed commentary is necessary in a public system, and an assurance that the ACMA list is accurate and compiled in good faith is not sufficient without any evidence. A higher standard of accountability is required if Australian citizens are to have any input into the legislation that will affect what information they are allowed and able to access.

The criminal provisions in the Criminal Code Act 1995 (Cth) are nowhere near clear enough to provide guidance to Australian political commentators. There is presently far too much uncertainty for citizens to properly evaluate the Government's proposals. Senator Conroy's threats to prosecute those who distribute the blacklist are not going to be effective at stopping people from accessing child abuse material, but they are likely to be effective at silencing legitimate debate.

(Image uploaded by Wild to OCAU)

So it appears that the ACMA blacklist has been leaked (scoop by Asher Moses and Wikileaks). This is the secret list of sites that have been deemed to be prohibited by the communications regulator, and are slated to be blocked by Senator Conroy's proposed filter. Senator Conroy has now said that this leaked list is not the ACMA blacklist. Conroy did confirm that the list shared some URLs with the ACMA list, but had many others that were not added by ACMA.

This suggests that the leaked list may be a combined filtering vendor's list, containing parts of the ACMA list and URLs added by the vendor or from other sources. Unfortunately, we have no way of knowing which URLs, if any, were added by ACMA and which were added by any third parties.

The list is apparently from late last year, and contains just over two thousand URLs (about double the size of the current list). On the list are some sites which look like they may possibly contain some child sexual abuse material. Unfortunately, there are also a very high number of innocuous sites – dentists, tuckshops, dog kennels, favourite collections of lolcats. Reports are coming out that these sites may have been hacked in the past and found their way on to the blacklist. This raises an immediate problem – what happens when the website owner fixes its security hole and removes prohibited content? How do you (a) find out you're on the blacklist; and then (b) get your site removed?

Then there's another category of sites on the list – sites that appear to have been wrongly categorised – legitimate adult sites, poker and betting sites, the Encyclopedia Dramatica, 4chan, and many more.

There is a real legitimacy problem if the Australian public are not allowed to know what is blocked, and there is no recourse for blocked sites to appeal decisions by ACMA.

What makes this much, much worse is that we face serious repercussions for simply wanting to examine the list and point out mistakes by ACMA or undesirable effects of the censorship regime. ACMA says that “Australians caught distributing the list or accessing child pornography sites on the list could face criminal charges and up to 10 years in prison.”

Last week, we saw ACMA threaten whirlpool's hosts with fines of up to $11,000/day if it did not remove links to a page that links to a another site on the current ACMA blacklist.

Today, Senator Conroy said that

ACMA is investigating this matter and is considering a range of possible actions it may take including referral to the Australian Federal Police. Any Australian involved in making this content publicly available would be at serious risk of criminal prosecution

This is extremely worrying from an accountability and legitimacy point of view. Australian have effectively been asked to take it on faith that the ACMA list is legitimate and only contains so-called 'illegal' sites, does not result in over-blocking, and is both accurate and up-to-date. Any citizen who wants to investigate those claims is faced with the threat of criminal prosecution.

This is not only bad policy, but it's bad democracy. Solving the problem caused by leaked lists by silencing critique is not best way forward.

Next week I will be speaking at a forum organised by New Matilda, "The Tangled Web: Beyond an Internet Filter". The abstract reads:

The Federal Government's proposal to block internet sites with a mandatory filter has drawn overwhelming opposition from voices across politics and civil society. So what are the real questions for policy-makers?



These forums explore the ethical, social and political questions raised by government regulation of the internet. With the growing intersection between technology, politics and media, how do existing and proposed classification regimes measure up?



Is filtering inevitable? Or are there better ways to regulate the world wide web?

The forum will be chaired by Peter Black, and will include Senator Scott Ludlam, Irene Graham, and myself.

It's a free event on at 6pm, Tuesday 24 March, at QUT. Places are limited, so please RSVP to enquiries(at)newmatilda.com.

I plan to talk about the rule of law in relation to the proposed filtering schemes. This debate has been around for a long time now, and we're finally starting to move past reactionary claims on the one hand that the Internet should never be censored and on the other hand that censorship and classification can and should work the same way online as off. The fundamental debate is a good deal more subtle than these polarised extremes.

We ought to know by now that no topics are strictly out-of-bounds for regulation. Roberto Unger showed us that one of the most dangerous things we can do is constrain ourselves by false necessity. The decision of whether and how to censor the internet is a social and political decision, and it doesn't help those opposed to a mandatory filtering regime to obscure that fact.

As a social and political decision, we should certainly be concerned with the efficacy of the proposed plan and the technical difficulties associated with any mandatory filter. This is something that I think has been covered quite well already.

What I would like to see a bit more of is a critical engagement with the goals of the filtering proponents. It is encouraging to see that we are increasingly engaging in this debate. I particularly liked Colin Jacobs' piece, Cyber-libertarians love their children too. Colin makes a special note of Holly Doel-Mackaway from Save the Children, who argues that filtering is taking attention away from the more pressing problems of violence against children (noting that “there are still often waiting lists for children who are victims of sexual abuse to get counselling and that the counselling received is limited”).

It's good that we're having these conversations, and we should continue to engage rather than polarise the debate. There is a lot of vitriol around, and it is not particularly conducive to identifying and implementing socially desirable policy.

One of the things I would like to discuss in this debate is the role of the rule of law in internet censorship. E. P. Thompson demonstrated that law not only reflects the interests of power, but it can also impose a limit on the exercise of power in society. The value of the rule of law is in the way in which the exercise of power is constrained by society. The Labor Government's proposal for mandatory internet filtering suffers from some fundamental flaws when analysed from the perspective of the values of the rule of law.

It seems to be accepted that a filtering scheme requires a secret blacklist (due, in the main part, to the ineffectiveness of any filtering regime in actually blocking access). One of the great strengths of our current censorship and classification regime is that it is transparent (decisions are made in public), and there is appropriate due process (decisions are reviewable). This transparency and procedural fairness is not feasible where the list of banned sites must be kept secret.

This lack of accountability is a fundamental problem. Without public or judicial oversight, abuses of power are much less likely to be detected or corrected. I certainly don't want to disparage the work of our Classification Board,¹⁾ but it seems too optimistic to suggest that mistakes will never happen, and we have learnt to be too untrusting to accept that exercises of power will always be free of ulterior motives.

The problem is exacerbated if, in order either to keep up with the volatility of prohibited content on the web or to avoid the difficult and expensive problem of classifying websites, we abdicate that responsibility in favour of an external organisation (like the Internet Watch Foundation) for the determination of whether Australians will be permitted to view particular websites. Such a move places the responsibility for administering a highly contentious and potentially very limiting censorship regime with a body with no responsibility to the Australian people – a body not bound by the rule of law.

These moves are inherently dangerous. Whilst ultimate responsibility may rest with a governmental organisation, an extra layer of opaque deliberations will be likely to make it difficult for the public to accept the legitimacy of the filtering scheme.

This really puts us in a difficult situation. In order to avoid some of the large holes in the proposed scheme, we are obliged to keep the blacklist secret. But any secrecy necessarily involves a reduction in oversight, opens the scheme to allegations of illegitimacy, and makes it more difficult to identify and correct both errors and abuses of power.

There are a number of ways out of this tradeoff, but none of them seem particularly encouraging. We could work on the effectiveness of the filter, such that it would not matter if the blacklist leaked, but this is unlikely given the ease of circumvention of current or proposed technology. We could accept that the blacklist will be open, and accept that the role of the filter is to (a) keep the honest honest; or (b) prevent 'accidental' exposure. However, given the lack of evidence that there is a lot of accidental exposure, the benefits of this approach are dubious. We could implement more effective and trustworthy processes to oversee the administration of the blacklist – closed judicial oversight, for example. This approach may be somewhat workable, but we still need to ensure the legitimacy of any oversight mechanisms, and this adds considerable overhead. We could accept the hit to our standards of legitimacy and operate the filter in a closed manner. This tends to be a slippery slope and something I would argue strongly against, but it seems to be the way that the government is leaning currently. Alternatively, we could come to the conclusion that the proposed filter is unworkable, and identify other ways in which we could achieve our policy goals.

I think that by now it's probably obvious that I believe that the proposed filter is not the best way of achieving our goal of protecting children. I think that the potential for abuse is substantial – we have already seen an anti-abortion site added to the blacklist and a discussion forum prohibited from even linking to that content. I also think that it's becoming increasingly clear that the technical deficiencies of the scheme are extremely substantial.

If we're willing to reduce our faith in the values of the rule of law in a trade-off in order to combat child abuse, it would seem desirable at least to ensure that the trade-off is a good one. To sacrifice accountability and due process for a technically ineffective scheme, however, does not seem be a desirable outcome.

[ edit: minor changes to third last paragraph to avoid confusion. ]

Despite the best efforts of ourselves and others, reports are still coming in that the mandatory filtering plan has now been 'scuttled', and twitter (and I'm sure many other social media outlets) is still on fire with the celebratory news. Here's an update of some of the things that people have been doing to continue the opposition to Labor's mandatory filtering proposal:

• EFA has launched SiteBlocker.org, which shows a facetious look at what the mandatory filter may look like. See a demonstration here, or go to the siteblocker site to create your own customised blocked site.

• Tomorrow UNSW will host a second forum on mandatory filtering, which looks like it will be a great event. Keep your eyes open for live coverage and reports of the event. Update: live twitter stream available at #filteringforum

• I'll be speaking at a forum on filtering in Brisbane on 26 March. Details have not been released yet, but the organiser plans to run similar forums in March in Brisbane, Sydney, Melbourne, and Adelaide. Stay tuned for details.

• The Digital Liberty Coalition is organising a March in March, a public protest against mandatory filtering in Canberra at 1pm on 21 March. If you can get there, I recommend you make the effort to turn up and make yourself heard.

• EFA is producing a set of fact sheets for politicians about the mandatory filtering proposal. This is something that we could use some help with. Being a volunteer organisation, we often struggle to find the time to do what needs to be done. So I've created a wiki to reach out for help from the public in our campaigns. If you think you can help with writing (or even fact and copy checking) some high quality fact sheets, please help us out.

[ Reposted from http://r18games.com ]

The Escapist has a good story on a recent Stateline story on "the power play over video games".

MICHAEL ATKINSON: I'm sure most people can distinguish the fantasy of a computer game from the reality. But it is the small number we know can't that leads to mass-murder in American high schools and in Thailand, last year led to a gamer playing out the fantasy of hijacking a taxi-cab and murdering the driver. It happened.

[…]

MICHAEL ATKINSON: I think the Western industrialised countries that allow R 18 plus computer games and the extreme violence that goes with them are just so many […] swine going over the cliff and I'm pleased that Australia has a principled, sensible stand against this extreme violence. I'm happy for Australia to stand alone and international gamers can laugh at us all they like.

[…]

MICHAEL ATKINSON: Some gamers have suggested I should be eliminated as an attorney general whatever that means but were I eliminated I'm sure there's other Australian attorneys general who would step forward and veto R 18 plus computer games.

You can watch the story on YouTube: No R18+ Gaming Classification in Australia

[ Reposted from http://r18games.com/. ]

Jason Hill at The Age Blogs is reporting that the Standing Committee of Attorneys-General (SCAG), at a meeting in Brisbane yesterday, agreed to release the discussion paper about the proposed introduction of an R18+ category for games in Australia.

This is good news. Australian gamers will finally be able to have a say as to whether or not they should be allowed to play content pitched higher than that which is appropriate for a 15-year-old.

EFA will be lodging a submission to SCAG once the discussion paper is released. This time, however, I'm keen to try something different. I'd like to hear from all interested gamers, and I'd like your help in drafting the submission. I want to create an excellent collaborative submission which covers all the issues, including all the latest research. I believe that together, we can all pitch in to create a definitive submission representative of those that this really effects: gamers.

If this is something you think you'd be keen to help with, please comment below or drop me a line at nic@efa.org.au. We have some time up our sleeve, but it won't hurt to get started early.

A recent report indicates that the South Australian Attorney-General, The Hon Michael Atkinson MP, has dug in his heels and refused to make the discussion paper on Australia's lack of an R18+ rating for games public.

A spokesperson for the Victorian Attorney-General, Rob Hulls, has said that “it now appears unlikely that there will be unanimity from all jurisdictions to proceed further at this stage with introducing an R18+ category for computer games.”

The article notes that “Mr Atkinson has opposed the introduction of an R18+ rating for games for many years, telling parliament earlier this year that he knew it denied Australian adults choice but was necessary to help restrict children's access to 'potentially harmful material'”.

The article also notes Mr Atkinson's reliance on the unfounded assumption that “Games may pose a far greater problem than other media – particularly films – because their interactive nature could exacerbate their impact”. Atkinson continued, saying that “The risk of interactivity on players of computer games with highly violent content is increased aggressive behaviour.”

I have now launched EFA's campaign to introduce an R18+ rating for games in Australia.
We call on each of you to let your Attorney-General know that we do not think that the fate of Australia's classification scheme should be determined by one state politician's unfounded beliefs. The public debate on this issue has now been cut short, without sufficient reason. It is now time to call upon the Standing Committee of Attorneys-General to make the discussion paper public, and see what Australians really think about an R18+ rating for games.