news Former Communications Minister Stephen Conroy has revealed that the Australian Federal Police appears to have given up on pursuing the un-named large Australian ISP which flatly refused to implement the Federal Government’s limited mandatory ISP filtering scheme based on a list of offensive sites supplied by Interpol.
In November last year, 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 were believed to have already implemented. Vodafone is also believed to be implementing 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. The AFP has issued such notices to Telstra, Optus and a number of other major ISPs to ask them to filter the Interpol blacklist of sites.
However, documents released to the Greens in March cast fresh doubt about industry uptake of the scheme, revealing that very few Australian ISPs apart from Telstra and Optus had consented to take up the scheme. At the time, it was revealed that one medium-sized ISP had not responded to the AFP’s advances at all, while one “large” ISP had refused to comply with a Section 313 notice to filter the Interpol list. It is suspected that the large ISP is TPG, which has previously signalled that it would not deploy the Interpol filter scheme. Exetel, a medium-sized ISP, has also previously signalled its unwillingness to deploy the filter.
In April, Greens Communications Spokesperson, Senator Scott Ludlam, asked Conroy a series of follow-up questions with respect to the use of Section 313 notices and the Interpol filter, including specific details of how and when the Australian Federal Police had filed a complaint with the Australian Communications and Media Authority regarding the one large ISP which had refused to implement the Interpol filter. The ACMA has powers of adjudication with respect to adherence to Section 313 notices, under the Telecommunications Act.
In a response published last week, Conroy noted that the AFP had on 15 January this year requested the ACMA’s general views on the application of subsection 313(1) of the legislation, as well as details of any prospective and investigation processes which the ACMA might use where an ISP chose not to cooperate with a request made by the AFP under Section 313 of the Telecommunications Act.
However, it appears from Conroy’s response that the AFP did not follow up with the ACMA and file a formal request for adjudication with respect to the ISP which refused to implement the Interpol filter. “The ACMA advises it is not currently investigating or adjudicating on any matters that are covered by Sections 313 or 314 of the Act,” Conroy’s response stated. “… The ACMA advises it has not received a request for adjudication in relation to compliance with Section 313, or other relevant sections, of the Telecommunications Act.”
The ACMA advised that since 1 July 2005, it had taken no enforcement action against any ISP or other telco in relation to non-compliance with Section 313 of the Telecommunications Act.
If the ACMA did decide to adjudicate in the matter and found that the ISP had wrongfully rejected a Section 313 notice, the regulator has powers to issue a formal warning; give a remedial direction; or institute proceedings in the Federal Court for the recovery of “a pecuniary penalty”.
The news casts fresh light on the consequences for any ISP which may refuse to follow directions listed in a Section 313 notice issued by a government agency, and comes as the use of such notices has recently come to public attention.
In May it was revealed that the use of Section 313 notices had spread beyond the Federal Police, with the Federal Government confirming its financial regulator ASIC had started requiring Australian ISPs 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 deem questionable in their own portfolios. It was subsequently confirmed that another un-named agency within the Attorney-General’s portfolio had used Section 313 notices to block a site for “national security” reasons.
There appears to be no public oversight of the process of using Section 313 notices to request websites be blocked by ISPs, no appeals mechanism, and no transparency to the public or interaction with the formal justice system. A move by ASIC in April to block several sites suspected of providing fraudulent investment information resulted in the inadvertent blockage of some 1,200 other innocent sites, and the regulator has since confirmed it accidentally blocked some 250,000 more.
The revelations were immediately greeted with alarm by a number of political groups and digital rights lobby organisations, who 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 practice is.
So far no ISP is known to have refused a Section 313 notice by ASIC to block websites suspected of fraudulent activity. The regulator has previously sent notices to major telcos such as Telstra, Optus, AAPT and PIPE Networks.
However, the AFP’s lack of enforcement action with respect to the ISP which refused to deploy the Interpol filter may seed speculation within the telco sector about the possibility of refusing such notices in future.
In comments posted on Delimiter, yesterday iiNet chief regulatory officer Steve Dalby noted that the language contained in ASIC’s Section 313 notices (published under Freedom of Information regulations last week) would have led iiNet to decline such a notice on the basis that ASIC was requesting websites be blocked “pursuant to investigations”, but without evidence of an actual crime having been committed.
“Just imagine if any website (like yours, for example) could be blocked for a month, just because you or your activities were under investigation. It would put most on-line enterprises out of business,” said Dalby. “It’s absolutely unacceptable. Anybody could be ‘under investigation’, it takes due process and evidence to find you guilty. Without transparency, due process and appropriate authority, no blocking should be possible. Section 313(3) is about enforcement, that is – once guilt has been determined and enforcement (of the penalty) follows. There is nothing in 313(3) about ‘investigations.”
In another comment, Dalby noted that he would agree that “a warrant, court order or something equally authoritative is more appropriate for a significant step such as a website block”.
Look, the information we have here from Conroy with respect to the AFP and the ACMA isn’t conclusive. We don’t know what other action the AFP might have taken, or be planning to take, with respect to the ISP (TPG?) which flatly refused to implement the Interpol filter.
However, I think what this information suggests (when taken along with Dalby’s comments and Optus’ revelation this week that it was reviewing how it responded to Section 313 notices) is that the use of Section 313 notices by organisations such as ASIC and the AFP in this manner, to request websites be blocked, is an unusual and largely unprecedented use of that section of the Telecommunications Act.
The law here is not clear, and it is very possible that agencies such as the AFP and ASIC are interpreting it in a way that would not stand up in court. Greens Senator Scott Ludlam has called for a wholesale re-examination of this area of the Telecommunications Act, and I strongly agree that this needs to be undertaken. This kind of situation is best characterised as “the Wild West” of Internet regulation. Nobody quite knows what they’re allowed to do yet — and that represents a perfect scenario for an open public inquiry leading to the creation of new legislation. We should not allow the law to remain gray and imprecise. And especially not when we’re talking about arbitrary censorship of the Internet at the random behest of secretive government agencies.