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  • Internet, News - Written by on Monday, November 12, 2012 10:03 - 13 Comments

    Legal basis shaky for Interpol filter, says IPA

    news Australian free market thinktank the Institute of Public Affairs has accused the Federal Government of relying on an “obscure” section of telecommunications law in a way that was never intended to implement its new limited Internet filtering scheme, and warned of the potential for scope creep under the scheme.

    Last week, Communications Minister Stephen Conroy announced the Federal Government would abandon its highly unpopular and controversial mandatory Internet filtering policy in favour of a more limited scheme that will see Australian ISPs forced to block a much smaller list of child abuse sites supplied by international policing agency Interpol. The legal mechanism for the scheme to proceed is Section 313 of the Telecommunications Act, which allows the Australian Federal Police to request assistance from local telcos. Telstra and Optus implemented the scheme in mid-2011; it will now be extended to other ISPs.

    However, in a statement last week, the Institute of Public Affairs, which is usually broadly aligned with the conservative side of politics, issued a statement objecting strongly to the new, watered down Interpol filter. The Interpol list is compiled with the assistance of some 190 member countries.

    “The Gillard government is handing over control for the list of banned websites to the international police agency, Interpol, and is using an existing law in a way that was never intended,” said Simon Breheny, director of the IPA’s Legal Rights Project.
    “The use of an obscure provision of the legislation raises serious legal issues – it is highly doubtful whether the law can be used to compel ISPs to block websites at the Minister’s behest. If the Minister always had the power to impose an internet filter without the need for new legislation section 313 would have been used from the beginning,” Breheny added.

    “Using the Interpol list means foreign countries, including Iran, Cuba and Zimbabwe, will now dictate what Australians can and cannot access online. Many of these countries have tyrannical governments that do not share our liberal democratic values. There is no guarantee that the list will not eventually include websites with political content.”

    “The government’s new internet filter has been cobbled together by a Minister obsessed with controlling what Australians do online. It should be abandoned as being an even greater threat to online freedom than the original mandatory internet filter,” he said.

    The IPA’s concerns about the legal basis of using the Telecommunications Act to force ISPs to comply with the Government’s new scheme echo similar concerns which were raised by the ISPs themselves in mid-2011 when the scheme was first mooted, with companies such as iiNet noting they were unsure as to how they would react if the AFP issued them with a notice requiring them to block a supplied list of sites. Other ISPs, such as TPG and Exetel, said flat out at the time that they would not comply with such a request.

    Last week, most digital rights, political and telecommunications organisations in Australia – including Electronic Frontiers Australia, the Pirate Party of Australia, the Internet Society of Australia (ISOC-AU), the Greens, the Opposition, the Internet Industry Association and others welcomed the Government’s backdown on the mandatory Internet filter and the implementation of the new scheme.

    However, some, such as ISOC-AU, noted that they still had concerns with the details of the new setup. “Our concerns now centre on how the new policy is to be implemented. Issues such as user notification, mislabelled sites, the mechanisms used for blocking, as well as the oversight of the system,” said ISOC-AU said ISOC-AU president Narelle Clark. “The Society, with its technical expertise, stands ready to assist in implementation of the new policy.”

    Delimiter has encouraged the Minister to hold an open press conference on the issue to take questions from the media, as well as to issue a discussion paper on the issue which would allow the public to comment on the scheme formally. In addition, we have invited the Minister to respond to the following questions in writing:

    • Given the wide-ranging nature of the Interpol filter — affecting most Australian Internet users — why was no public consultation held before the Government decided to take take this step? I note that the Government has never held a formal public consultation into Internet filtering in general.
    • How would the Government respond to the claim that there will be no civilian oversight of this Interpol filtering scheme, with key information about it only being released over the past several years through Freedom of Information requests filed with the Australian Federal Police?
    • ISPs such as iiNet, Internode, TPG and Exetel have declined to participate in this scheme so far over the past 12 months, with some citing uncertainty of the legal situation. How would the Government address the claim that the legal ground of this Interpol filtering scheme, notably the process whereby the AFP issues notices to ISPs, is not clear?
    • Which further ISPs will the AFP issue notices to? Has the Government already received support from those ISPs for the scheme? How will the Government react if an ISP declines the notice?
    • How would the Government respond to the claim that there is the potential for the AFP to issue notices beyond the Interpol list to ISPs, in an approach which could be dubbed ‘scope creep’?
    • Neither Telstra nor Optus explicitly notified customers that they had implemented the Interpol filter when they did so last year. What guidelines will the Government be placing around ISPs’ participation in this scheme?
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    13 Comments

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    1. Michael
      Posted 12/11/2012 at 4:04 pm | Permalink |

      With regards to the civilian oversight, I wonder how much damage it would do to release the blacklisted websites given that they are already under survielance but authorities. Anyone who circumvented the filter to access them would then be able to be identified if need be so how much damage could releasing the list cause if it was not publicised.

    2. Adam
      Posted 12/11/2012 at 4:42 pm | Permalink |

      The list the australian government was maintaining did leak a year or two ago, and it was shown that legitamate business sites were incorrectly on it. Those businesses could not tell they were on it, in order to request removal.

      If this goes ahead it will be important to clearly define what happens when someone tries to access a blocked site, and how information will be provided that can assist the site owner with getting thier site removed from the list should it be in error (eg if their site has been hacked, and they have allready fixed it). When sites are hacked the owner can fix them in a matter of hours of sometimes minutes after they become aware, but if they end up on this list during that window of time, significant financial loss can occur untill they are able to be removed. They need to know how to submit their site for review and it needs to be checked and removed in a timely manner, hours at an absolute maximum. Things happen quickly on the net. If your online store is blocked for 2 weeks when you have are running an expensive advertising campaign its going to cost dearly.

    3. Phillip Smith
      Posted 12/11/2012 at 7:25 pm | Permalink |

      I do not understand why this “backed down” position is being accepted by organizations who were so opposed to it in the first place.

      It IS the mandatory filtering system that was originally proposed, just with a smaller list of blocked sites. The technical obstacles, and moral grey area are still present. Once the facilities are in place to facilitate filtering, it is only a “ministers whim” away from becoming the full filtering scheme again.

      The concept of Big Brother is still alive and well in this “watered down” system; Just like the original system, people who want to access blocked content can easily circumvent the filter, and the rest of us have to put up with our privacy being invaded.

      • Posted 12/11/2012 at 8:29 pm | Permalink |

        I can only speak for Pirate Party Australia. We continue to oppose Internet filtering, and our press release on the Interpol filter opened with “Pirate Party Australia is happy with the Labor Government’s backflip on Internet censorship, however still raises concerns over the opaque and ineffective nature of the Interpol blacklist scheme.” (http://pirateparty.org.au/2012/11/09/pirate-party-happy-with-internet-censorship-backflip/).

        One concern that we have is that the public at large will not understand the actual issue, and that the moral aspect of filtering out “the worst of the worst” will cloud the questions of transparency and censorship that we have been raising.

        • Joakal
          Posted 12/11/2012 at 9:49 pm | Permalink |

          I still like my policy on banning mandatory filters imposed by government/companies. :)

          • Posted 12/11/2012 at 9:53 pm | Permalink |

            http://pirateparty.org.au/wiki/Platform#No_Censorship :P (admittedly now slightly out of date).

            • Joakal
              Posted 12/11/2012 at 10:16 pm | Permalink |

              My biggest issue with a lot of those policies is that it doesn’t factor in corporations that get funded (government or privately) to do ‘voluntary’ acts of abuse. Hence why I explicitly stated that it was prohibited for both groups to protect individuals. For example, Telstra/Optus decided out of their own will (or some incentive) to quietly impose censorship on millions with no legal encouragement from the government.

              Like now, probably. Although there’s a lot of discussions in secrecy among stakeholders except individuals.

    4. Joakal
      Posted 12/11/2012 at 7:28 pm | Permalink |

      > Given the wide-ranging nature of the Interpol filter — affecting most Australian Internet users — why was no public consultation held before the Government decided to take take this step? I note that the Government has never held a formal public consultation into Internet filtering in general.

      That’s a very good question. Another good question is why Telstra/Optus went to the expense of millions to implement the filter when there are cheaper options, eg providing software. It’s a highly suspect practice. Are they given cushy contracts? Is it the reason why Telstra got a windfall from NBN Co. because Conroy needs filter support?

      > ISPs such as iiNet, Internode, TPG and Exetel have declined to participate in this scheme so far over the past 12 months, with some citing uncertainty of the legal situation. How would the Government address the claim that the legal ground of this Interpol filtering scheme, notably the process whereby the AFP issues notices to ISPs, is not clear?

      iiNet is actually participating soon with the filter due to a s303 request, unless AFP’s FoI was made up. Internode, for some reason, is also listed as participating soon in the same FoI yet no s303 request is with it. So, it seems that iiNet and Internode are saying they do not want to participate, which seems true for iiNet but is highly suspect for Internode. But the question should be asked if they’re planning or have implemented the filter.

      Here’s my list of Australian ISPs that are currently and under suspicion of censoring the Internet in Australia: http://www.reddit.com/r/AUInternetAccess/comments/12wmvw/australian_isps_that_are_still_censoring_internet/

      > How would the Government respond to the claim that there is the potential for the AFP to issue notices beyond the Interpol list to ISPs, in an approach which could be dubbed ‘scope creep’?

      There’s no guarantee except AFP’s word. They have said they pass on the list ‘unaltered’, according to AFP’s FoI.

      > Neither Telstra nor Optus explicitly notified customers that they had implemented the Interpol filter when they did so last year. What guidelines will the Government be placing around ISPs’ participation in this scheme?

      Since the filtering scheme without consent appears illegal and the AFP are strongly pushing for a filter scheme, it appears that AFP have a conflict of interest in the proceedings to not prosecute Telstra/Optus. Otherwise we’d see massive fines for interfering with communications.

    5. Stephen H
      Posted 12/11/2012 at 7:48 pm | Permalink |

      If the Interpol list is public, it advertises the “worst of the worst” websites. If it isn’t public, then we don’t know what is being blocked. Neither situation is good.

      One thing that can be pretty much guaranteed, though – if ISPs are given a list of what to block, that list will become publicly available. There will be too many people in the know, and there are bound to be sites on the list that someone sees as innocuous/not worthy of banning.

      The issue of “scope creep” isn’t just one of the AFP passing on an unaltered Interpol list. It is also an issue of the government jumping on a “hot” issue and using the heat to announce that the banned sites list will now include (e.g., and demonstrating the slippery slope) terrorist-related sites, neo-Nazi sites, Holocaust denial websites, hate speech websites, IRA websites, euthanasia websites, sites supporting or promoting illegal immigration. Would such changes be publicly announced, or just quietly added to the block list?

    6. Tailgator
      Posted 13/11/2012 at 11:48 am | Permalink |

      “Using the Interpol list means foreign countries, including Iran, Cuba and Zimbabwe, will now dictate what Australians can and cannot access online. ”

      ROFLMAO. Same old, same old from the IPA.

      • Stephen H
        Posted 13/11/2012 at 6:35 pm | Permalink |

        Yes – why didn’t they mention Russia or the US?

      • David
        Posted 14/11/2012 at 7:47 am | Permalink |

        Tell me about it. If this keeps up, we’ll all be blocked from watching anything but the Zimbabwe cricket team. Talk about an outrage.

    7. Bob.H
      Posted 14/11/2012 at 7:31 pm | Permalink |

      It seems that there are two separate issues with the voluntary filter.

      1. It is possible for an Australian list (eg a modified ACMA black list) to be added to the Interpol list in Australia and the list can still be called the Interpol list. There is no mechanism in place to check within Australia that the list hasn’t been amended.

      2. The use of Sec313 of the Telecommunications Act has been called into doubt by a number of people. Until such times as this is tested in Court we are not going to know if the way the AFP are using this is legal. The problem is finding someone who would be prepared to spend the money to take a case to the High Court if necessary to get a definitive answer.

      The benefit of a filter system that is trivial to circumvent is questionable as is the implementation of a system where there is nothing to show that the benefit is worth the cost both monetarily and socially.




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