news The Australian Securities and Investments Commission revealed tonight that it had in fact blocked “numerous” websites over the past nine months which it suspected contained illegal material, as fears about the extent of the agency’s covert Internet filtering scheme continue to grow.
Last night the Federal Government confirmed ASIC, the financial regulator, had started requiring Australian Internet service providers to block websites suspected of providing fraudulent financial opportunities, in a move which appeared to also open the door for other government agencies to unilaterally block sites they deemed questionable in their own portfolios.
The move is based on the use of Section 313 of the Telecommunications Act, which allows government agencies to ask ISPs for reasonable assistance in upholding the law, a mechanism which is also being used for the Government’s limited Interpol-based filter to block child abuse material. However, the law is not usually used to block websites, and there appears to be no public oversight of the process which ASIC is using, no appeals mechanism, and no transparency to the public or interaction with the formal justice system. ASIC’s action came to light after the regulator in April blocked several sites suspected of providing fraudulent investment information, but also resulted in the inadvertent blockage of some 1,200 other innocent sites.
The news was immediately greeted with alarm by a number of political groups and digital rights lobby organisations, which expressed concern that ASIC’s move could herald the covert return of the Federal Government’s previous mandatory Internet filtering scheme, which the Government abandoned in November last year. Commentators immediately called upon the Government to reveal how widespread the blocking practice was, and the news spurred journalists and activists to file Freedom of Information requests in an effort to ascertain the full extent of the situation.
In a new statement tonight, ASIC revealed that the blocks in March and April were only the latest in a series of such actions it had taken over a sustained period. “ASIC has used this power numerous times over the past 9 months,” a statement issued by the regulator said. “This is the first time we have encountered this problem. We are reviewing our processes to ensure this doesn’t happen again.”
In an earlier statement today, the regulator also confirmed statements made last night by the office of Communications Minister Stephen Conroy on the issue, noting that it had been responsible for the April incident.
The regulator said it used “various legal powers and techniques” to protect Australian investors from becoming the victims of fraudulent activities such as cold-calling and the use of fraudulent websites. “This includes requesting telecommunications carriers that access to a specified IP address of a fraudulent website be blocked Section 313(3) Telecommunications Act (Cth) allows us to make these requests,” the regulator said.
ASIC noted that in the period September 2009 to April 2013, it had conducted investigations into at least 17 cases of cold-calling ‘Boiler Room’ fraud amounting to in excess of $8 million in losses to Australian investors. “Most of these scams include access to fraudulent financial services websites that are used to lure potential investors,” the regulator said, although it did not note for how many such cases it had applied the website blocking technique used in April.
“Advances in technology have led to the rise of cybercrime in the financial system globally
Computers and the internet permeate our lives today. While there are many benefits, unfortunately this means there are online scams promoting ‘bogus’ investment,” ASIC wrote.
However, even as ASIC has revealed its website blocking technique has been more commonly used than was used, questions are increasingly being asked as to what extent the regulator’s practice is consistent with the legislation. Queensland University of Technology senior law lecturer Peter Black told ABC Radio tonight that Section 313 of the Telecommunications Act was now being used increasingly for a purpose it may not have been intended for.
“It does seem as though since the government formally abandoned their policy of mandatory ISP-level internet filtering, they do seem to be moving towards using Section 313 to effectively introduce some form of filter through the back door,” said Black. “The big problem from going down this particular path is that we’re not seeing proper parliamentary or public scrutiny about this process. It certainly has the potential for it to be mandatory web filtering but by another name. The difficulty is we don’t know how widespread this practice is.”
Meanwhile, ISPs have also started to question ASIC’s action. iiNet regulatory chief Steve Dalby told the Financial Review today that the ISP didn’t want to have to start making decisions about whether it should comply with a blocking instruction from a law enforcement agency. “They have an enforcement role to perform but they also have an obligation to do it in such a way that it complies with the normal tests of evidence and onus of proof,” Dalby said. ASIC has not disclosed the burden of evidence it has used to justify blocking sites in the past, nor revealed whether it had successfully prosecuted any of the sites it had blocked — or whether the formal courts system was involved at all.
The Greens have also heavily criticised ASIC’s use of the Telecommunications Act in this manner, with Communications Spokesperson, Senator Scott Ludlam, noting in a statement today that ASIC’s move “opens the door to wide-scale banning of sites”. “It also means no-one is effectively in charge; other Government agencies could demand sites be blocked with no coordination or accountability in place … this is a filter by stealth that operates with no explanation and no transparency,” said Ludlam.
“The Australian public overwhelmingly rejected the Government’s plan to introduce a mandatory filter and welcomed the news in November that the scheme had been abandoned in favour of more effective and more fair methods of fighting crime online such as child abuse material,” the Greens Senator added. “We now know the Government has introduced a filter by stealth, one that has already caught 1200 perfectly legal websites in its net. The Government needs to abandon this scheme and come up with methods to tackle online fraud that don’t involve widespread censorship of harmless material.”
Delimiter has contacted the office of Shadow Communications Minister Malcolm Turnbull for a comment on the issue, but no response to ASIC’s actions has been issued by the Coalition as yet.
I am completely unsurprised to find that ASIC has been blocking websites for some time with Section 313 notices — I had surmised that if it had suffered this issue in March/April, that that would have actually been something like the tip of the iceberg. Given this fact, I would expect the ongoing investigation into how widespread this practice is within the Federal Government, to go on for some time. It’ll likely take a few months for the various Freedom of Information requests to come back with enough information to paint the whole picture of what’s going on here behind the scenes.