news The Federal Government has admitted it has as of yet taken no action to improve the transparency and accountability of the unilateral use by individual departments and agencies of an obscure section of the Telecommunications Act to force telcos and ISPs to block websites suspected of conducting illegal activities.
On May 15 this year, the office of then-Communications Minister Stephen Conroy 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, under the auspices of the Australian Federal Police.
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. It has since emerged that ASIC has blocked “numerous” sites over the past nine months, and has also inadvertently blocked some 250,000 innocent sites accidentally.
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.
It was subsequently revealed that a third agency in the Attorney-General’s portfolio had also used the power to block sites on the basis of “national security” concerns. However, the Government has refused to disclose the identity of the agency or the sites blocked. ASIC has since pledged to continue using the Section 313 power, stating it has no need to apologise for doing so.
Immediately following the revelation of the website blocking, on 17 May this year, according to documents released last month to the Pirate Party Australia under Freedom of Information laws, the Department of Broadband, Communications and the Digital Economy convened a wide-ranging internal government meeting at its premises on the blocking issue.
The department invited virtually every major department and agency in the Federal Government to the meeting, including the Attorney-General’s Department, the ACMA, ASIC, the ACCC, ASIO, the Australian Crime Commission, the Australian Federal Police, the ATO, Customs, Immigration and even the Human Rights Commission. A representative from the Department of Prime Minister and Cabinet also attended.
“As some [of] you may be aware, there has been media commentary regarding the recent use of Section 313 to block a fraudulent website that resulted in the inadvertent blocking of the Melbourne Free University website (and potentially others,” wrote an un-named DBCDE officer in an email to the various departments inviting them to the meeting, to be held on 22 May.
“The media attention has particularly focused on concerns that Section 313 could be used to censor online content. A strong link has been drawn between Section 313 takedowns and the AFP’s arrangement with ISPs to block the sites on the INTERPOL ‘worst of’ child abuse list. Key criticisms include the perceived lack of transparency and accountability and that it took considerable time for the Government to confirm who had blocked the site and why.”
“The proposed meeting will give key enforcement agencies an opportunity to discuss their current and potential future use of Section 313 notices and to ensure we have a considered view before the Budget Estimates hearings. We are keen to ensure we have processes in place to avoid similar problems in the future.”
The agenda for the meeting included plans to go over agencies’ use and future plans to use the Section 313 power to request the blocking or takedown of websites, as well as the issue of whether there was “merit” in a central coordination agency being notified before the power was used, as well as “transparency and accountability arrangements”, such as the issue of whether users who attempted to visit a blocked site should see a standard page informing them that the site had been blocked and why.
In addition, the meeting was to discuss how a site owner could appeal a block, as well as public reporting of the agencies’ use of the Section 313 power.
The guiding force for the meeting to be held in the first place appears to be the fact that Communications Minister Stephen Conroy — who was responsible for acknowledging the use of the Section 313 power to begin with on 15 May — had asked his department for options on the issue. “I think there’s a good argument that people are putting forward [that] there should be a greater transparency about what’s happening to ensure that mistakes, like ASIC have made in this example, don’t happen,” Computerworld quoted Conroy as saying on 23 May. “I’ve asked my department to put some suggestions to me about how we can strengthen the transparency.”
However, since that date, it does not appear that DBCDE — or any other Federal Government authority — has taken any concrete action on the issue.
Delimiter requested an update on the situation from the office of new Communications Minister Anthony Albanese last week, which referred the query to DBCDE. “The Department is continuing to consult lead agencies and other relevant stakeholders to improve the transparency and accountability around blocking of online content under Section 313 of the Telecommunications Act 1997,” a spokesperson for the department said.
Still, there may be some reason for those concerned about their online rights in Australia to feel more comfortable with respect to the issue. A series of wide-ranging FOI requests filed by Delimiter with major agencies such as Defence, Tax and Customs over the past several months has found no evidence that the use of Section 313 notices has spread beyond ASIC and the AFP to other departments.
I think it’s pretty clear at this point that there are many Australians that would like the Government to provide some accountability and transparency measures around the use of Section 313 notices by departments and agencies to unilaterally block websites. It is disappointing that the Government appears to be dragging its heels on the matter. Several months have gone by since the 22 May inter-departmental meeting held by DBCDE on the issue. What has the department — and other departments — been doing in that time, apart from sitting on its hands? It may well take another FOI request to find out — because that avenue is basically the only way the Australian public is getting information on this issue at the moment.
I find it disturbing that the Government’s response to being discovered unilaterally censoring websites only suspected of bad behaviour, outside the courts system and without any oversight or transparency, is to hold more secret meetings and refuse to comment to journalists on what’s going on, forcing us to rely on the Freedom of Information Act to get any information to the public at all.
Keeping things in the dark and feeding them crap might be a good way to grow mushrooms. But it’s not a good recipe for generating a strong democracy. And when it comes to Internet censorship, the current Labor administration has way too much form for the public to be comfortable with any form of it creeping in under the radar. For God’s sake, shine the light in here, DBCDE. What could you possibly have to lose by doing so?