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Is voluntary internet filtering a crime?

The voluntary filtering being introduced by some of Australia’s major internet service providers (ISPs) is on shaky legal ground. Blocking access to blacklisted websites could even be a crime.

Since July 1, Telstra, Optus and some smaller member ISPs of the Internet Industry Association (IIA) have been introducing content filters based on Interpol’s blacklist of child exploitation material rather than the relevant portions of the blacklist that  continues to be compiled by the Australian Communications and Media Authority (ACMA).

This was Communication Minister Stephen Conroy’s strategy. The ISPs filter out kiddie-nasties voluntarily, at least in the short term. He’s seemingly not fussed that it’s a different list. Meanwhile, the Australian Law Reform Commission is reviewing the entire content classification system. The government will eventually incorporate that review into laws to implement Labor’s still-unchanged policy for more comprehensive internet censorship.

The nod-wink-handshake was politically expedient. It got things in motion without having to squeeze tough internet censorship laws through a constipated Senate. (Blame Greens Senator Scott Ludlam for that mental image.) Existing laws have been re-purposed, perhaps stretched to the point of fissure. (Blame me for that one.)

The IIA has said the filter would be part of its forthcoming voluntary industry code. No new laws were needed because ISPs were installing the filters “in accordance with a legal request for assistance” under s313 of the Telecommunications Act.

Presumably ISPs believe, or hope, that by responding to a “legal request” by police under s313(3) and something goes pear-shaped they’ll be covered by the immunity provisions in s313(5).

The IIA’s use of the term ‘legal request’ in their media release of June 27, 2011 appears (in the writer’s opinion) designed to either exaggerate and/or mislead readers (members of the public, including some journalists, etc.) about the extent of police powers under s313,” writes Irene Graham in a comprehensive 7000-word analysis at Libertus.net.

These “legal requests”, writes Graham, refer to the fact that police can request, and the telcos be required to give, “such help as is reasonably necessary” for the “purpose” of “enforcing the criminal law” and other specified types of laws.

Requests have usually been for phone call records, call traces, telecommunications services and technical advice for investigators or, in limited circumstances, cutting off a service.

Blocking access to websites takes us into new territory.

There is potentially or possibly an argument that the actual filtering of the Interpol blacklist itself could under the Commonwealth Criminal Code Act constitute an impairment of an electronic communication, which could actually be a criminal offence,” said Peter Black, QUT internet law lecturer, on the Patch Monday podcast.

It’s s477(3). Maximum penalty 10 years in prison.

The Telecommunication Act’s s313(5) provisions only protect ISPs and other carriage providers from civil action. And the internet filters might not actually be “authorised” in law.

Note: s476.2(4) states that a person is entitled to cause impairment of electronic communication when that is done under a warrant issued under the law of the Commonwealth, a state or a territory. However, there is no exception for impairment that occurs in response to a mere request for ‘help’ by police or anyone else,” Graham writes.

If the criminals hack some examplecorp.com and serve illegal material from an obscure location, the entire website is blacked out. It’s quite likely that the majority of accesses being blocked would have been to legitimate content. There’s plenty of scope for collateral damage.

Mark Riley is chief technology officer at ContentKeeper. Its business is content filtering. He likes domain-wide blocking.

If a hosting provider is a bit recalcitrant about taking content down, and they leave content that is known to be inappropriate up, they will then be put on the list, and amazingly, within minutes the actual content will be removed.” Riley told ZDNet Australia. “Having that amount of leverage over a hosting provider seems to have very, very positive outcomes.”

Erm, due process?

That does sound a little bit troubling,” Black said. “Hopefully if Australia does go down the path of using this Interpol list more broadly we can have some sway and influence over how that list operates.

Ultimately, I think this is more an interesting academic question because I think it can easily be solved by one of two ways,” he said. Parliament could pass some quite simple amendments to legislation. Or the ISPs could just adjust the terms of service with their customers.

As long as the terms of service allow the ISP to do this, then this whole complicated legal question goes away, and it is very easy for the ISPs to change their terms of service.”

But is that the way we make laws? We just leave the commercial sector to do its own thing?

11
  • 1
    Ronson Dalby
    Posted Thursday, 4 August 2011 at 4:31 pm | Permalink

    I think the fact the ISPs so far involved haven’t announced the filters to their customers (would most people even know about they were now in operation if you didn’t read the tech websites?) nor include any information about them on their websites or in their terms of service speaks volumes.

  • 2
    Ronson Dalby
    Posted Thursday, 4 August 2011 at 5:09 pm | Permalink

    “As long as the terms of service allow the ISP to do this, then this whole complicated legal question goes away, and it is very easy for the ISPs to change their terms of service.”

    How does the ISPs changing their ToSs get past

    “There is potentially or possibly an argument that the actual filtering of the Interpol blacklist itself could under the Commonwealth Criminal Code Act constitute an impairment of an electronic communication, which could actually be a criminal offence,” said Peter Black, QUT internet law lecturer, on the Patch Monday podcast.

    It’s s477(3). Maximum penalty 10 years in prison.

    The Telecommunication Act’s s313(5) provisions only protect ISPs and other carriage providers from civil action. And the internet filters might not actually be “authorised” in law.”?

  • 3
    Posted Thursday, 4 August 2011 at 6:34 pm | Permalink

    @Ronson Dalby: My understanding is that if the blocking of sites on the Interpol blacklist is made part of the terms of service, then failing to connect to a site because it’s blacklisted is no longer a fault causing an impairment to communication but the communications system working properly as advertised. IANAL.

  • 4
    Michael Wilbur-Ham (MWH)
    Posted Thursday, 4 August 2011 at 6:35 pm | Permalink

    I’m not too worried if anyone filters the internet using an Interpol list of kiddy p*rn sites.

    Of course this is probably useless as it would not take long for anyone to work out how to bypass it, but at least this filter will not effect most Australians.

    Remember that Conroy (and thus the Labor cabinet) initially wanted to filter all x-rated content.

    They then wanted to filter all RC (Refused Classification) content. They deliberately distorted what this meant by implying that RC equalled illegal content.

    (Illegal content is something that you are not allowed to own, such as kiddy p*rn, whilst RC content is legal to own, but illegal to sell.)

    We also need to remember that in Australia, whilst it is legal for two 17 year olds to have sex, if they photography this they are producing child p*rn, if they send it to someone they are distributing it, and if they take their camera or computer overseas, and come back to Oz, they are importing child p*rn.

    RC content also includes any sexual content where the women has small breasts (yep, even if the women is clearly over 30, if she has very small breasts and it is sexual, it is RC). It also includes much mild fetish, as well as the stronger stuff.

    Thus the very strange RC rules mean that probably every overseas x-rated site would have something that our censors would deem RC. Thus the whole site would be banned. (Conroy pretended that only particular pictures or videos would be filtered, but the leaked black lists included some standard x-rated sites, and as many sites publish several new photos every minute, it is clearly either filter the whole site or let it all through.)

    We must also remember that RC includes political content that conservatives don’t like. So if the Labor cabinet had their way the filter would ban more than just s*x.

    So I’m not worried about filtering of an Interpol list. But I’m very worried about what future religious conservatives (in both Labor and Liberal) may do in the future.

  • 5
    Ronson Dalby
    Posted Thursday, 4 August 2011 at 6:43 pm | Permalink

    So I’m not worried about filtering of an Interpol list. But I’m very worried about what future religious conservatives (in both Labor and Liberal) may do in the future.”

    Is the former worth the risk of the latter and future governments? What government doesn’t take all the power it can get?

    Do you really think that most of the CP is located on open websites? If it is, how hard is to close the few down? And how many children are saved from abuse by blocking a website which is bit like pulling the blanket over your head when there’s a burglar downstairs.

    I’ve been trying to find a link but on the ABC radio news at 11.00 there was a report that police has arrested an Internet CP ring of about 400 people. For a start I bet they weren’t using an open website and secondly isn’t this a better for Interpol and other police forces to use their funds?

    Look, I just don’t trust governments with this kind of power. I watched a very interesting documentary on euthanasia last week and I want to be able continue to look at things like that if I wish to.

  • 6
    Michael Wilbur-Ham (MWH)
    Posted Thursday, 4 August 2011 at 6:56 pm | Permalink

    @Ronson,

    Real CP is of course hidden away.

    I’m old enough to see anyone under 30 as young, but how much p*rn is on the net with say 17 year olds? If there is lots, then perhaps most CP (as defined by Australian law) is freely available!

    I’ve watched documentaries which were broadcast in the UK (on channel 4) which would definitely by RC here. Yep, FTA TV in the UK is RC in Oz.

    Of course any production of real CP is a serious crime.

    But I’m sure that within a few km of my place a child will be abused tonight. For real. Yet instead of tackling the biggest problem (abuse committed by family or trusted friends of family) we go down hard on those who just look at pictures.

    Conroy has demonstrated many times that he has no understanding of technology, and that he is really using CP as a way to sneak through much greater censorship.

    Scary times.

  • 7
    Ronson Dalby
    Posted Thursday, 4 August 2011 at 7:38 pm | Permalink

    Here’s the story I couldn’t find. I was way off in the number of people caught.

    http://arstechnica.com/tech-policy/news/2011/08/feds-hack-past-user-anonymity-bust-72-subscribers-to-child-porn-horror-site.ars

  • 8
    Posted Friday, 5 August 2011 at 6:30 am | Permalink

    I covered these subtleties of RC in some depth last year in the Patch Monday podcast, an episode called Refused Classification means what, exactly?

  • 9
    Michael Wilbur-Ham (MWH)
    Posted Friday, 5 August 2011 at 8:53 am | Permalink

    Some things I noted about the article:

    1 - You only need to look at Crikey to see that “anonymous screen names” are normal.

    2 - My first impression was that to join the site you had to produce CP. I only worked out the truth when I later read that if you produced CP then you became a Super VIP, so all that most members were doing was passing stuff along.

    I have no problem with the law coming down very heavy on those who make CP.

    But those poor sick people who are turned on by this, but would never dream of actually doing anything with a child, are clearly now treated much the same as the evil people actually abusing children.

    3 - Of course any internet filters would have been totally inefffective against this group,

    4 - but proper police investigation can infiltrate groups such as this and then track down its members.

  • 10
    The_roth
    Posted Friday, 5 August 2011 at 10:09 am | Permalink

    I think it’s very important that legislation be enacted by our elected officials in this matter so that everything is clear cut and above board.

    Policing by loop hole is hardly an intelligent thing to do and indeed in the future in less enlightened times (under an Abbott governement for instance) this back door could be used , with precedent, for all kinds of nefarious conservative activities.

    All it would take is a new McCarthy, we already have ready made cheer squad in the form of the right wing press.

  • 11
    Ronson Dalby
    Posted Friday, 5 August 2011 at 11:52 am | Permalink

    An interesting bit of on the legal side here from the person who runs the Libertus site which is linked in the above article:

    http://forums.whirlpool.net.au/forum-replies.cfm?t=1727294&p=71#r1413

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