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Australian Computer Society (ACS) - Community Affairs Board (CAB) - Economic, Legal and Social Implications Committee (ELSIC) - Submission to the Senate Committee on Information Technology on regulation of the Internet

26 April 1999

To: Secretariat, Senate Committee on Information Technology
E-mail: it.sen@aph.gov.au

ACS CAB ELSIC - Submission to the Senate Committee on Information Technology on regulation of the Internet

Table of contents

• Introduction

• The ACS CAB ELSIC Regulation of the Internet page

• Detailed comments on the Bill
  • General comments
    • Positive features of the Bill
    • Areas of concern about the Bill
  • Comments about specific clauses in the Bill
  • Concluding comments/recommendations

• Acknowledgments

• Feedback

This submission is to the Australian Senate Committee on Information Technology (SCIT) and relates to the Broadcasting Services Amendment (Online Services) Bill 1999. It is made on behalf of the ACS CAB ELSIC.

The ACS CAB ELSIC supports some aspects of the Bill, but has concerns about whether the Bill, as currently drafted, will achieve its objectives. We are also concerned that the Bill as currently framed may result in a range of unintended consequences.

This submission is located at:
http://www.acs.org.au/boards/cab/elsic/regulation-1999-04-senate.html

The ACS CAB ELSIC Regulation of the Internet page

• The ACS CAB ELSIC is a strong supporter of the principle of freedom of speech.

• Any regulation of the Internet should be no stronger than that of analogous media. For example, in relation to the Web, production and distribution of books, and in relation to e-mail, the writing of letters and use of the mail system.

• Any regulation of the Internet should generally focus on the producer of the material, rather than the distributor of the material. This is in a context where Internet Service Providers (ISPs) are normally not aware of the nature of almost all the material they distribute, just as, for example, the postal service is normally not aware of nature of almost all the mail it distributes.

• Any proposals for regulation should take account of the specific characteristics of the Internet, in particular that it is difficult to prevent access to information on the Internet, and that attempts to use blocking technologies may be ineffective, and result in unintended detrimental consequences.

• Any proposals to regulate the Internet should normally be implemented only after international discussion, and ideally, agreement.

• Parents and other custodians of children should be given access to tools which can assist them in controlling access to the Internet by children for whom they are responsible, rather than governments attempting to re-design the Internet so that all the material on it is suitable for persons of any age.

The above page includes principles that ELSIC agrees should be applied in relation to Internet regulation, links to a number of submissions and related documents that the ACS has produced on this issue in the past, and some other links.

The SCIT is encouraged to consider whether the Bill implements the principles that are articulated on that page, and above in this submission, and also to note the arguments put forward in a number of previous submissions by the ACS, which also apply to the analysis of this Bill.

Detailed comments on the Bill

General comments

Positive features of the Bill

• The Bill does attempt to address a number of concerns that the ACS has raised in relation to various previous attempts to regulate the Internet in Australia over the past few years.

• The ACS has objected in the past to Internet Service Providers (ISPs) having to interpret content rating/suitability guidelines. The Government has given that task to the ABA.

• We objected to ISPs being liable without notice. The Government has made provision for notice. The provision made does not, however, reflect many of the constraints that are an intrinsic feature of many, in particular small, ISPs.

• The ACS objected to ISPs having to install expensive equipment or being asked to do technically inappropriate or impractical things. The Government has attempted to embody in the legislation that the issue of what constitutes 'reasonable steps' is to be determined according to the relevant industry-developed code of practice. However, what comprises reasonable steps would benefit from further elaboration, in view, for example, of the very different scales and operating models of ISPs.

Areas of concern about the Bill

• To the greatest possible extent, a self regulation regime is advocated by the ACS CAB ELSIC. The involvement of the ABA, which is not subject to direction from a governing body representative of the Internet industry, is arguably inconsistent with a self regulatory model.

• The Bill arguably treats the Internet as in many ways analogous with broadcasting. This analogy is generally not an appropriate one, given that the Internet does not generally use airwaves which are a scarce public good, and material on it is generally searched for, in comparison with much broadcast media where the recipient may have no notice of the material they are about to see, or hear. The appropriate analogous media for the Web is in most cases books, which people seek out and choose to read, or the mail system in relation to e-mail and newsgroup distribution.

  The point that the most analogous media to the Internet is printed media, not television or other such broadcasting media, is argued extremely well in a recent Web page prepared by Danny Yee, the short title of which is 'Australian Net Censorship: Classification Problems'. This page is at:
  http://www.anatomy.usyd.edu.au/danny/freedom/99/classification.html

• The Bill provides no explicit protections for consumers who may be injured by its operation.

  It provides no protection for user privacy. Email and private data stored on Internet connected servers are included in the definition of 'Internet content'. Whilst complaints about such content may not be likely, there is also the matter of public content being transmitted privately.

  To take just one example, it is possible for Australian users to have overseas web pages emailed to them. Where such web pages have been declared "prohibited content" in an ABA notice then, under this Bill, ISPs will be required to try and block such e-mail. Monitoring users' email in an attempt to do this would be a totally unacceptable invasion of user privacy, but it is not ruled out by this Bill.

  Nor does the Bill provide any protection for users' freedom to read from a wide range of information sources. If, for example, an ISP is given notice to block scores of different pages located on Geocities (www.geocities.com, a large site, which provides free web hosting), then the ISP may choose, for technical reasons, to block all of Geocities. This will drastically affect its users' freedom to read extensive amounts of perfectly legal material.

  The Bill should explicitly provide protections for user privacy and other user rights.

• In the view of the ACS CAB ELSIC, taking account of both the importance of the subject matter covered by the Bill, and its potential impact on a wide range of Australians, insufficient time has been provided to comment on the Bill. The level of debate engendered even in the short time available indicates that the issues are more complex than have been addressed by the Bill. The Bill and indeed the interests of all parties would benefit materially from greater examination and public debate. There are several critical interactions with other issues (including privacy) that have not been recognised in the Bill as it stands, which could be materially assisted by a coherent and integrated treatment. The ACS would be pleased to assist with any such initiatives.

Comments about specific clauses in the Bill

• Schedule 1 - 4 (3) - page 3 - these objectives could be more clearly stated - we suggest amend as follows:
  
  • (k) which currently reads:
    'to provide a means for addressing complaints about certain Internet content; and' to read:
    'in a context of a largely self regulatory regime, to provide a means for addressing complaints about certain Internet content; and';
  • (l) which currently reads:
    'to restrict access to certain Internet content that is likely to cause offence to a reasonable adult; and' to read
    'to provide mechanisms by which adults likely to be offended by certain Internet content that is likely to cause offence to a reasonable adult can make informed choices regarding access to that content; and'; and
  • (m) which currently reads:
    'to protect children from exposure to Internet content that is unsuitable for children.' to read:
    'to facilitate access to filtering tools for parents and those acting in the role of parents (such as schools) to protect children from exposure to Internet content that is unsuitable for children, without limiting access to that content for adults, unless adults voluntarily choose to use such filtering tools in relation to their own use of the Internet.'

• Part 1 - Introduction - Simplified outline - page 5 - the definition of prohibited content is arguably too broad. It would not allow adults to access X rated material in Australia via the Web, when they are able to access it via other means (such as mail order). This treats one form of information distribution (the Web) differently from another arguably analogous form (that is, mail order).

• Part 1 - Introduction - Simplified outline - page 5 - the requirement for material which has been classified R by the Classification Board to have its content subject to a restricted access system is totally inappropriate, given that similar overseas material faces no controls at all under this proposed legislation.

  In any event, the R rating is extremely broad, and to attempt to classify material on the Internet which is generally analogous to printed material, using a classification system designed for films, is not good policy.

• Page 6 - Filtering by ISPs of overseas material is generally not technically practicable. It is better for this filtering to be done by recipients of material using software on computers they own, and/or for the regulatory authority to notify the police authorities in the country from which the material originates, possibly via the Australian Federal Police, in particular if the material is illegal in that country as well as Australia.

  An excellent summary of the problems involved with filtering is provided by a CSIRO media release dated 14 April 1999 titled 'Content blocking on the Internet' which is at:
  http://www.csiro.au/news/mediarel/mr1999/mr9975.html

• Schedule 1 - Part 4 - Division 1 - 20 (3) (b) - page 20 - refers to material on newsgroups as potentially subject to regulation. It is the nature of newsgroups that material posted to newsgroups is generally not under the control of an ISP, and so any complaints mechanism should take this into account. Also, newsgroup postings are more analogous to widely distributed letters, sent to those who have indicated an interest in receiving them by reading the particular newsgroup, not broadcast media such as television and films.

• Schedule 1 - Section 35 (1), (2), and (3) - page 28 - This section requires action of ISPs as soon as possible, and in any event within 24 hours, in relation to interim, final, and special take-down notices, respectively. This is an onerous requirement, particularly in relation to small ISP, which may be unattended on weekends, or during holiday periods. Even large ISPs may have difficulty with this requirement as they often have enormous amounts of e-mail from their users and others to process.

• Schedule 1 - Section 56 (1) (c) - page 39 - reads:
  '(1) The Parliament intends that, for both sections of the Internet industry, there should be:
  ...
  (c) procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult;'

  This portion of the Bill is consistent with the perspective that the Internet is an adult medium, and it implicitly recognises that much of the material on it is only suitable for adults. A problem arguably with it is that it does not accord with much of the rest of the Bill, which implicitly is arguing for an Internet which is almost entirely suitable for children to use, even if that degrades its usefulness for adults. There would be potential complexities involved in introducing such a regime for free Internet accounts as well, many of which are offered by overseas organisations. It is recommended that the above be changed to read:
  '(1) The Parliament intends that, for both sections of the Internet industry, there should be:
  ...
  (c) procedures directed towards the achievement of the objective of ensuring that online accounts, which are charged for, are not provided to children without the consent of a parent or responsible adult. Possession of a valid credit card or drivers licence shall be treated as prima-facie evidence that an applicant for such an account is an adult for the purposes of this Act, and in any event, a person who can prove in some other fashion that he or she is 16 years of age or over shall be treated as an adult for the purposes of this Act;'

• Schedule 1 - Section 79 (4) - page 55 - indicates in part:
  '... Penalty for contravention of this subclause: 50 penalty units.'
  

  Taking into account that many ISPs are small businesses with limited capital reserves, and limited capacity to respond to directions within 24 hours, the proposed penalties appear somewhat draconian.

  The magnitude of potential fines, particular on the many ISPs that are body corporate, is reflected in the Bill's explanatory memorandum which indicates at page 60:
  'Subclause 79 (4) provides that a person subject to a remedial direction who contravenes the direction will be guilty of an offence subject to a maximum penalty of 50 penalty units in the case of an individual and 250 penalty units in the case of a body corporate (see subsection 4B(3) of the Crimes Act 1914 (Cth)). A penalty unit equals $110 (see section 4AA of the Crimes Act 1914 (Cth)).'

Concluding comments/recommendations

• It is readily agreed that the Bill has attempted to address a number of issues that ELSIC raised in relation to previous attempts to regulate the Internet.

• In summary, the Bill appears to fail to achieve objectives that the ACS CAB ELSIC supports. It would result in a range of apparently unintended consequences. Thus, in the view of ELSIC, it should not be proceeded with in its current form.

• In a context where insufficient time has been provided to consider the Bill, and major concerns have been raised about the Bill by ELSIC in this submission, in particular that the Bill tends to treat the Internet as a broadcast medium for the purposes of regulation, when the most analogous medium is printed materials, SCIT is encouraged to request that the Senate submit the Bill to it for further consideration, with at least two months being provided to enable wide ranging consultations on the Bill, and the drafting of potential amendments to it, and more broadly whether the Bill should be proceeded with or a completely new Bill produced for the SCIT's consideration.

• Additionally, SCIT might wish to give further consideration to whether current laws in place already largely cover the Internet in relation to illegal activities, and in that context, whether minor amendments to current laws, or changes to the way current laws are applied, might be sufficient in relation to this matter, rather than having new laws focussing purely on the Internet.

Acknowledgments

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