news The Federal Government has confirmed its financial regulator has started requiring Australian Internet service providers to block websites suspected of providing fraudulent financial opportunities, in a move which appears to also open the door for other government agencies to unilaterally block sites they deem questionable in their own portfolios.
The news came tonight in a statement issued by the office of Communications Minister Stephen Conroy, following a controversial event in April which saw some 1,200 websites wrongfully blocked by several of Australia’s major Internet service providers.
On April 12, Melbourne publication the Melbourne Times Weekly reported that more than 1,200 websites, including one belonging to independent learning organisation Melbourne Free University, might have been blocked by “the Australian Government”. At the time, Melbourne Free University was reportedly told by its ISP, Exetel, that the IP address hosting its website had been blocked by Australian authorities. The block lasted from April 4 until April 12.
Subsequently, the US-based Electronic Frontier Foundation issued a media release linking the issue to the Labor Federal Government’s various Internet filtering initiatives, especially the voluntary filtering scheme currently implemented by a number of major ISPs including Telstra, Optus and Vodafone.
In November last year, Communications Minister Stephen Conroy formally dumped the Government’s highly controversial mandatory Internet filtering scheme, instead throwing his support behind a much more limited scheme which sees Australian ISPs voluntarily implementing a much more limited filter which Telstra, Optus and one or two other ISPs had already implemented. Vodafone has also implemented the filter, and the process is also believed to be under way at other ISPs such as iiNet.
The ‘voluntary’ filter only blocks a set of sites which international policing agency Interpol has verified contain “worst of the worst” child pornography — not the wider Refused Classification category of content which Conroy’s original filter had dealt with. The instrument through which the ISPs are blocking the Interpol list of sites is Section 313 of the Telecommunications Act. Under the Act, the Australian Federal Police is allowed to issue notices to telcos asking for reasonable assistance in upholding the law. It is believed the AFP has issued such notices to Telstra and Optus to ask them to filter the Interpol blacklist of sites.
The use of the Section 313 notices in this manner is believed to be the first occasion when the legislation has been interpreted to allow the Australian Federal Police to request ISPs to block website addresses. Some ISPs have questioned the legality of the use of the legislation in this manner, with some — such as one ISP believed to be major telco TPG — going so far as to refuse to follow the AFP’s requests to block websites.
Over the past week, a number of different Federal Government involved in Internet regulation, including the Attorney-General’s Department, the Australian Federal Police and the Australian Communications and Media Authority have denied involvement in the April block. However, tonight Senator Conroy’s office revealed that the incident that resulted in Melbourne Free University and more than a thousand other sites being blocked originated from a different source — financial regulator the Australian Securities and Investment Commission.
On 22 March this year, ASIC issued a media release warning consumers about the activities of a cold-calling investment scam using the name ‘Global Capital Wealth’, which ASIC said was operating several fraudulent websites — www.globalcapitalwealth.com and www.globalcapitalaustralia.com. In its release on that date, ASIC stated: “ASIC has already blocked access to these websites.”
The regulator today did not immediately respond to a request for comment clarifying that statement, but Conroy’s office tonight confirmed the agency had, as the Australian Federal Police has previously for the limited Interpol filter, issued a notice under Section 313 of the Telecommunications Act for “an IP address that was linked to a fraud website” — presumably the websites belonging to the group describing itself as Global Capital Wealth.
“ASIC believed that the website in question was operating in breach of Australian law, specifically section 911a of the Corporations Act 2001,” Conroy’s office said. “Under Section 313 of the Telecommunications Act, websites that breach Australian law can be blocked.”
“Melbourne Free University’s website was hosted at the same IP address as the fraud website, and was unintentionally blocked. Once ASIC were made aware of what had happened, they lifted the original blocking request. The government is working with enforcement agencies to ensure that Section 313 requests are properly targeted in future.”
Anomalies in the website block occurred, according to Conroy’s office, because of the differing nature of the methods which the two agencies — ASIC and the AFP — have used in their Section 313 notices. Users who attempt to access websites blocked under the AFP’s limited child abuse filtering scheme are directed to a website notifying them that the site has been blocked and how they can, if necessary, appeal such a block. However, ASIC’s process merely blocked the websites suspecting of hosted fraudulent material, leaving users such as Melbourne Free University’s users in the dark as to what had happened. In addition, the AFP process uses actual website addresses — whereas the ASIC process uses IP addresses.
ASIC’s user of Section 313 of the Telecommunications Act in this manner appears to be the first known occasion that the agency — or any other agency than the AFP — has done so, and appears to open the door that any Federal Government department or agency could request Australian ISPs to block websites which are believed to contain illegal material.
However, some segments of Australia’s technical and legal communities have long harboured concerns about using the legislation in this manner.
In contrast with Labor’s previous mandatory Internet filtering policy (which was to have been administered by the Australian Communications and Media Authority and which was dumped last year) there is currently no known civilian oversight of the Section 313 notifications scheme, no method of appeal and no way of ascertaining whether and why sites have been blocked under the legislation.
There is no mechanism in place to ensure that owners of web sites who have those sites blocked by Section 313 notices — deliberately or inadvertently, as happened with the Melbourne Free University case — are notified of the reason their sites have been blocked.
Furthermore, Section 313 of the Telecommunications Act does not specifically deal with certain breaches of the law. In fact, it only requires that ISPs give government officers and authorities (such as police) reasonable assistance in upholding the law. Because of this, there appears to be nothing to stop the Australian Federal Police, ASIC or any other agency from issuing much wider notices under the Act to ISPs, requesting they block categories of content which may be technically illegal in Australia but not blocked yet.
A number of sites which were on the borderlines of legality — such as sites espousing a change of legislation regarding euthanasia, for example — were believed to be included as part of the blacklist associated with the Federal Government’s much wider mandatory filtering policy. It is not clear what safeguards exist to prevent the Section 313 notification scheme to include such extra categories of content.
Because of this, the usage of Section 313 of the Telecommunications Act which ASIC applied in March appears to represent something of a “back door” for Australian authorities to request web sites be blocked from viewing by Australians — but with no oversight of the process, no appeals mechanism, and no transparency to the public or interaction with the formal justice system.
Long-time readers of Delimiter will note that I have for several years been warning that if the Australian Federal Police started using Section 313 of the Telecommunications Act to block child abuse websites, that there would be nothing to stop that newly re-interpreted legislation from being used by the AFP or other agencies to block whatever other websites they felt like on the day.
In fact, I remember getting into a very loud and angry argument with then-Internet Industry Association chief executive Peter Coroneos — who helped develop the Interpol filter/AFP process — about the potential for scope creep once Section 313 of the Act started to be used in this manner. I hope Coroneos will now admit that he helped open Pandora’s Box for Government Internet filtering.
It is very easy to foresee that other Federal Government agencies would like to follow the example set by ASIC and quietly use Section 313 notices to block other sites on the borderlines of legality. The Department of Health and Aging may like to block pro-euthanasia sites, for example, or sites promoting illegal drug use. The Australian Taxation Office may like to block sites promoting methods of tax evasion. The Department of Defence may like to block sites which expose details of Australian military misconduct. And so on. The list is endless, and I am sure that there are at least a couple of agencies closely examining what ASIC has done here, with a view to potentially doing the same in their own portfolios in future. Hell, the ASIC case may just be the tip of an existing iceberg; the example where someone actually got caught, because of a false positive.
The questions about the lack of transparency and oversight involved in such a process should be obvious to all concerned. It is very close to a universally accepted truth that the Australian public does not want government authorities to be able to unilaterally order websites blocked to Australian view without (at least) oversight of that process and a robust appeals process.
There are also questions here about how such a process may interplay with the existing courts system. I would ask, for example, whether ASIC has actually concluded a legal case against the individuals behind the ‘Global Capital Wealth’ sites which it ordered blocked in March. If it has not, one wonders whether it is exceeding its authority in ordering those sites offline. The evidence collected by the regulator, may, after all, not support its case that the sites are fraudulent. Where is the line? We’ve seen law enforcement authorities come unstuck in their accusations before, after all. That’s why Australia has a courts system — so that the claims of law enforcement can be tested, and not just taken for granted.
Let me finish this article by noting how disappointed I am in the personal integrity of all of the government public servants who enabled or abetted this situation to come about. In the course of my investigations into this matter over the past week, I contacted three of the key Federal Government departments and agencies concerned with Internet regulation — the ACMA, the Attorney-General’s Department, and the AFP.
In each case, each agency explicitly denied responsibility for the action which led to Melbourne Free University being unfairly blocked in April. However, in each case, each agency implicitly had knowledge of what had happened, but was unwilling to comment further on the issue. ASIC’s action has also completely blindsided Australia’s telcos, most of whom, having just gotten used to the Interpol filter, are right now wondering what the hell is happening and why they’re now being told by the financial regulator to filter a whole new category of content.
Eventually, Communications Minister Stephen Conroy came clean on the issue — most likely because I signalled I was determined to get to the bottom of the matter, and would pursue it through Freedom of Information requests if necessary, as I have done with previous government Internet filtering efforts.
However, coming clean on this kind of issue — unilateral government censorship of Australia’s Internet access, behind closed doors and with zero public transparency — is a little like owning up to being a serial philanderer. It lets people know what type of person you are, but it doesn’t solve the problem, and it won’t stop people feeling cheated.
The Australian public overwhelmingly rejected the Labor Federal Government’s previous attempt at a universal Internet filter. Now that filter is back: But it’s on questionable legal ground, it’s being done behind closed doors by anonymous public servants (remind you of the data retention process?), it’s already resulting in massive false positives and there’s no notification or appeals mechanism. Wonderful. But then again, don’t we trust the Government? Don’t we?