Australian Governments Proposal for Introducing ISP Level Blocking of RC-rated Content - Research Paper Example

Australian Government’s Proposal for Introducing ISP Level Blocking of RC-rated Content “Internet filtering and surveillance, this argument goes, is no more a matter for international decision making than any other domestic policy concern. The nature of the network and its potential uses are irrelevant to the analysis. The Internet is not exceptional”. (J. Zittrain & J. Palfrey, Internet Filtering: The Politics and Mechanisms of Control in R. Deibert et al (eds) Access Denied (2008) p 44.) Discussion in the light of above statement on Australian government’s proposal to block RC-rated content through ISP level filter Internet has been dubbed as this planet's new nervous system, and its advantages and disadvantages debated in the same breath1. Considered as a transformative technology, different governments hold different perceptions on this medium of communication and information. This far innumerable number of dilemmas and issues pertaining to internet have been debated, and more often than not, governments have been termed as repressive when internet has come under an attack of being curbed in its deliverance of content, categorizing the same as per different levels suiting or not suiting any given country's policies, practices, culture or tradition. While talking of internet freedom, the question that has always evolved is what is this medium supposed to be free from and actually from whom? In all instances, none but the States, are said to be enemies of internet, which resort either to enacting laws, criminalizing any given conduct or speech, or blocking material or monitoring data being transferred through or uploaded over internet. Countries resort to several types of impingements; a country may consider a user’s content not keeping in line with its policies and governance, it may deem as offensive or defamatory some material which is otherwise freely available over internet, and may even press internet service providers to either police, monitor or remove content not in congruence with its framework of governance. That a particular type of content on internet is harmful for a particular nation does not and cannot have a uniform code strewn across the whole globe. But still countries urge that what other nations might treat as non-offensive could be offensive for its population. Quite often, and as can be seen till date, it doesn’t matter how individuals think about the same type of content. For example, United States of America has an open approach to freedom of speech, but still tread cautiously when it comes to pornography and hate speech. Singapore, on the other hand, completely bans any type of pornographic display on internet. Saudi Arabia, at the same time, would not allow exposure to any other religious belief than one belonging to Sunni faith. This is because Saudi Arabia is predominantly Sunni in its nature and concentration. Clearly it is competing concerns more than anything else that define a country’s stand on freedom of expression, even though the same country may be upholding freedom of speech more like anything and actually more than any other tech-savvy country. While some countries do not spend too much of their energies on issues as these, there are a few that like China, Pakistan, Egypt, India and Australia for whom putting their radar of surveillance on internet seem to be a favorite pastime. Australia uses both law and technology to either spy on internet communication or restrict user’s access to blacklisted content, ISPs or websites. Australia has new restrictive laws either in practice or in use to prevent internet from disseminating what it is actually meant to transmit – “information”. However, Australia’s aggressive stance on internet surveillance and filtering came under a severe attack; as a result of which it had to put the proposal on hold2. Australia intended to use a number of filtering techniques that included blocking IP addresses or domain directly or using key word filtering techniques to accomplish the same. When Australia put forward the proposal, it soon became to be equated with countries like China, whose anti-internet tirade is well-known and documented3. 1. Ross, J-M. (2009). The Rise Of The Social Nervous System. Available http://www.forbes.com/2009/03/09/internet-innovations-hive-technology-breakthroughs-innovations.html. Accesed March 22, 2012 2. NewsCore, Herald Sun. (2012). Australia an ‘enemy of the internet. Available http://www.heraldsun.com.au/news/more-news/australia-enemy-of-the-internet/story-e6frf7lf-1226297986751. Accessed March 22, 2012 3. Colin Jacobs, “Independentʼs Day and the Censorwall,” (2010). Available http://www.efa.org.au/2010/09/02/independents-day-and-the-censorwall/Accessed March 22, 2012 Australia's filtering and surveillance initiatives began in 2008, through a national filtering plan introduced by Labor Party. The plan intended to use a national filtering scheme that suggested that all ISPs should block access to content rated as RC-rated by the country's premier Media and Communications Authority4. The complexity of content regulation in Australia is widely known as the flow of information on internet is governed by a plethora of state and federal laws keeping in line with different categories based on which content is rated5. Under severe attack is the RC-rated or "Refused Classification"-rated content, which has been the subject of the Australian government’s proposal stemming from country's Classification (Publication, Films and Computer Games) Act 1995 (Cth). The act is said to be governing Australia’s content regulation regime; further bolstered by several enforcement Acts6. To what extent is it possible to apply offline models of content regulation to Internet content? There are certain limits to internet regulation. This is primarily because of the very nature of this medium of communication. Even though it is meant to communicate audio and video sets of information, it cannot be equated with the broadcast media that has so far been considered as traditional. Broadcast media is "closed" in as far as its function is considered, but internet is an "open-ended" medium linked by millions of users worldwide through technology. 4. Edwards, T, Griffith, G 2008. Internet Censorship and Mandatory Filtering, NSW Parliamentary Library Research Service. Available http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/7F8B9A55E2FC8932CA2575030083844A/$File/E%20Brief%20Internet%20Censorship.pdf. Accessed March 12, 20o12 5. Rob Faris, “Australian Filtering Announcement Raises Questions and Ire,” OpenNet Initiative Blog, January 8, 2008, Available http://opennet.net/blog/2008/01/australian-filtering-announcement-raises-questions-and-ire. Accessed March 22, 2012 6. Classification (Publication, Films and Computer Games) Act 1995 (Cth)s 9A: Guidelines for the Classification of Films and Computer Games 2005 (Cth) While broadcast media can be regulated by laws, internet, at least for now, would be difficult to handle this way. Offline control of users is practically not possible. This is because of the infinity of the internet. Analysts also put forward a very viable argument that if internet developed in the US, a country known to protect its freedom of speech, how can other nations -- for whom internet is "adopted" technology, interfere with this freedom. Rather than following a staunch outlook on internet regulation, governments have been looking at the practicality of using a "distinct regulation” on internet content and services7. Furthermore, a number of scholarly people have expressed varying degrees of favorable and unfavorable opinions with regard to content regulation on internet. Darlington (2009)8 has said that it is important to regulate internet content on similar lines as content on television and radio is regulated. He is of the opinion that internet is just like any other network that disseminates news, views and other type of content, and since popularity and reach of internet is expected to be widespread in the years to come, it enormity of its bad and good effects that will likely occur, warrant all the more important need to regulate content being uploaded, transmitted and read by millions. It has also been argued that internet does not only imply information being spread, but also anything from an ordinary e-mail to weblogs and websites which have access by a user at the other end; what, however, needs to be looked into is the thin line dividing individual rights from community rights. At the same time internet experts caution that governments need to clearly distinguish between illegal and harmful content on internet; since when RC-rated content9 is being debated, these two terms can go a long way in deciding what is and is not better left from the purview of this regulation. 7. Protecting Civil Liberties in the Digital Age. Available https://www.aclu.org/free-speech/internet-censorship. Accessed March 22, 2012 8. Darlington, R. (2009). Available http://www.rogerdarlington.me.uk/Internetregulation.html. Accessed March 22, 2012 9. What is Refused Classification ("RC") material? AU Gov't Mandatory ISP Filtering / Censorship Plan. Available http://libertus.net/censor/isp-blocking/au-govplan-refusedclassif.html. Accessed March 22, 2012 The impossibility of applying offline models of content regulation on internet originates from the fact that neither publishers, nor governments, and not even internet service providers have the desired control over what is being processed on this mode of communication that works in a matter of seconds and travels thousands of miles at the speed of thought10. Apart from that, if a writer from Country X is writing and uploading matter that is perfectly legal in his country would not be realizing that what is being viewed in Country Y can be deemed as not legal. Internet as a medium of communication is such that it is near impossible to check it as content crosses to another border from its place of origin. To elaborate the point judges, Farinha and Pettiti in the “Spycatcher” case, had tersely remarked as this: “In the era of satellite television it is impossible territorially to partition thought and its expression or to restrict the right of information of the inhabitants of a country whose newspapers are subject to a prohibition”. Directly or indirectly, and ostensibly so, the judgment highlighted a growing concern of the internet policy makers, and that was how can one country impose legality on some type of content which originated and spread from another where the content does not violate any code of conduct11. To what extent is it feasible to introduce ISP-level blocking without adversely affecting the technical performance of the Internet in Australia? It was in 2007 that Australia’s Department of Broadband, Communications and the Digital Economy conducted a feasibility study on ISP level filtering. This initiative was part of national filter scheme that required ISPs to pass on internet service after filtering to users who opted-in for this type of service. This study was undertaken together with ACMA (Australian Communications and Media Authority), server/network level filter providers, ISPs, IT industry, industry experts and digital content providers. 10. Moses, A.( 2009). "Spoof Conroy website protests at internet filter plan". The Sydney Morning Herald. 11. The Observer and Guardian v. the United Kingdom, 14 EHRR 153 (1992). Prior to undertaking the study, there were some crucial factors that were discussed for long-term implication of ISP level filtering. The notable one of which was its impact on network with respect to performance, apart from level of difficulty involved in creating the system, time required to both build and execute it, level of system effectiveness of the filtering, interference that will result on businesses on account of filtering, costs involved in building and maintenance, ease of use at the user's end, level of transparency, establishment of consistency with regard to the government policies in allied areas like uptake, deployment and broadband, barriers to implementation involved, and adverse impacts on It industry as a whole. Soon after this study, a number of other studies emerged pertaining to ISP level blocking and points and counterpoints have swelled in the last ten years keeping in view results from these studies. One such study done by CSIRO indicated that IP filtering was devoid of any network-related performance impacts. But, added the report that could not be taken as a silver lining as this type of filtering would be indiscriminate in nature and takes in its blocking tirade much more than what it is being asked to do. The report intended to make it clear that only technology was not enough to execute filtering, one reason why neither IP filtering nor URL filtering "should be mandated". The apprehensions on the cost of filtering were further strengthened by the report which showed concerns that it would be difficult for ISPs to afford sophisticated equipment on account of high costs simply because of a reason that government wants filtering in place. From a commercial point of view this, practically, is not a viable option for ISPs to embrace12. 12. Collins, L., Love, P., Landfeldt, B., Coroneos, P., (2008). Feasibility of ISP level filtering. Available http://www.dbcde.gov.au/__data/assets/pdf_file/0006/95307/Main_Report_-_Final.pdf. Accessed March 22, 2012 The feasibility of ISP level filtering will also have to be looked at from the perspective of freedom of expression as explained in the Australian Constitution, which guarantees freedom of communication to its citizens. The law that promulgates filtering has to be such that it does not pitch Australian representatives against the country government on legal course that undermines importance on one or both sides. In terms of ISP level filtering what, though, has come out as a clear winner is ACMA blacklist, which is a list of websites – categorized on their level of objectionable content – fed to ISPs for blocking. But, again, as if to breed issues within issues, this move is said to be distasteful for smaller internet service providers, who would be encountered with barrage of inquiries if users cannot get across a particular website. For these smaller ISPs even though it would not cost too much to install such a setup, but running one on a continual basis would be exorbitant. Landfeldt and Collins (2010)13 have argued that users would not realize for content blocked on internet, it is the ACMA they have to talk to and not the internet service provider. The move, thus, would open a new task on board for ISPs to maintain, which is not logical. The task attains huge enormity when total internet size of 1 billion users and more than 30 billion web pages is taken into account; then there are several stakeholders and their varied interests involved, plus the technical viability of the exercise that tilts more on the expected unsuccessful side than a austere, fulfilling one. It is probably issues as these that led the Australian government in 2011 to announce legislative amendment regarding ISP level filtering for contented hosted oversea but falling under the country's RC-rated list. 13. Hutchinson, J. (2010). Opt-in ISP-level Internet filter wasn't feasible: Academics. Available http://www.computerworld.com.au/article/344796/opt-in_isp-level_internet_filter_wasn_t_feasible_academics/. Accessed March 22, 2012 As on date the RC-rated content in Australia pertains to bestiality, crime instructions, child sexual abuse imagery, sexual violence, use of drugs, and activities pertaining to terrorism. Most of the RC-rated content list is derived from public complaints received by ACMA, which is then tallied with the National Classification Scheme. Internet service providers consider ACMA blacklist as the only feasible model that can be used commercially without the opt-in/opt-out option for users. All customer enquiries can simultaneously be handled by the government. As pointed above cost of installation of any such ISP level filter is exorbitantly high and many ISPs would expect the cost to be recoverable. The feasibility also comes under cloud when previously certain ISPs have hinted that any such move and the cost will be passed on to the customers, which means customers will have to pay for a service they were not even remotely interested in. But, this might seem to work if the government covers all the costs involved. The feasibility is also dogged by certain general issues. One of them is the amount of auditing needed with mandatory ISP filtering. In this regard level of logging is expected to hugely impact system design and thus the costs. Not only this, when this is brought into force, the users would actually have no knowledge of how ACMA developed the blacklist. Even many ISPs would be unaware of the process of compilation of the list. Technical expertise, say many ISPs, must be better left to ISPs to work on, develop, implement, and change, if required. Legal implications, at the same time, can be another bottleneck towards this proposal being taken to feasibility level. The legal implications would come upon primarily four different parties i.e., government, ISPs, users, and outsourced service providers. The government's risk would be higher in hybrid or third party managed model since in these models the government would be solely responsible for ensuring that filtering systems are working effectively. In these two models, ISPs would make attempts to indemnify by the government for any user claims. ISP managed model would impose higher legal risk on ISPs. It is because ISPs would completely be responsible for managing filtering effectively and as well as attending to user calls that request for this service. This would necessitate that ISPS have their own call centers to take user calls as any such add-on would reduce the risk to some extent, as it would dissolve any third party alliance. When a third party enters the process, users might have to worry about the privacy of their information which, otherwise, would not be much of a worry when only ISPs manage all services on their own. Outsourced service providers would have to bear all legal implications and any additional risks since the third party will be solely responsible for ensuring effectiveness and implementation of the service. In each case, feasibility of user privacy will have to be accorded top priority. User information will have to be collected, retrieved, stored, and disclosed only in compliance with the privacy principles as communicated to users earlier. It will be part of this that users actually know how and where their personal information is used, processed, and at the same time secured. Third party involvement, again, comes as a hurdle in the proposals feasibility on account of keeping user information secure, and prevent it from going into wrong hands. It is expected that involvement of multiple parties in ISP level filtering would leave ample room for negligence and risk the whole process at risk of claims pertaining to negligence. The risk of negligence is seen as occurring in unison between each party, or even in isolation with a single party. Analysts believe the risk of negligence would be determined how well filtering scheme is undertaken and promoted. It matters a lot, at least, in how it is promoted – as a ‘no liability service’ or ‘best guarantee service’. To what extent is it legitimate and/or desirable for the Australian government to introduce ISP-level blocking of RC-rated content? Internet in earlier days was a small pack-switching network, but now it has grown to a limitless network disseminating infinite levels of information to millions of users across the globe. This, no doubt, has resulted in a lot of harmful and illegal content being transmitted; detrimental for both adults and children alike. It is keeping this in view that the Australian government mooted this proposal, the basic aim behind which is to keep away families from deleterious effects of any such content. But given the very nature mammoth nature of internet, questions have always been raised whether or not any such mechanism would be enough to achieve the goals that ISP level filtering envisages. The legitimacy of any such move is being debated, since this trespasses the basic right of freedom of expression and access to speech and information, but desirability can very well be understood. Even though Australian government's intention behind this proposal is clear, yet it does not have explicit answers for many pertinent questions. The proposal moots targeting primarily that content that is hosted outside its border but does not conform to Australia’s social fabric. Australia deems RC-rated content as illegal and harmful for Australian population. ACMA is at the centre sage of this categorization, but there is no plausible solution as to how it can control or categorize overseas content that is perfectly legal across the border and does not infringe upon any domestic law there. Some internet analysts are of the opinion that both legitimacy and desirability of Australian government’s proposal must not be questioned as countries as Singapore, Saudi Arabia, Vietnam, China, and even the US have in past exhibited control over internet in one form or another. Each nation has given one reason or another for any such move, the basic tenet of which has been labeled as "protection" from something that the nation felt was not in sync with its own ideology. Those who oppose the move, however, have any justification to give, For example, China normally says that it censors internet because it wants to uphold the rights of its citizens and protect the state, but critics says that it censors internet because it does not want too much of material pertaining to Tibetan independence, police brutality, or 1989 protests of Tiananmen Square from 'moving out' or 'getting in' on internet14. That the exposure of Australian population to RC-rated content, either intentional or inadvertent, must be stopped is logical on part of government's proposal, but there is a widespread view that the proposal may not be able to achieve this goal in it entirety. Some scholars are even of the opinion that the proposal does not even hint in abundance at online safety pertaining to children through e-mails, and/or messaging services. Ostensibly ISP filters are not capable of filtering these two services. Not only this, the reach of ISP filters is circumvented by other clandestine methods capable of bulk distribution of such illegal content. Computer experts reveal that in order to accomplish such bulk distribution, unscrupulous elements use alternative protocols. The ISP level filtering is seen as just an attempt to either block or control the medium that propagates RC-rated material. It does not and simply cannot stop its production. As a result of this partial approach to the problem, the proposal cannot be seen as a foolproof method to nib the problem in the bud. The question also arises whether or not Australian want any such material. If they do, it can be said that government is working in this direction just on its own and without a mandate; and again, if they do, then suppliers would find different ways around to disseminate this content. 14. China Defends Internet Censorship (2010). Available http://www.securecomputing.net.au/News/214503,chinadefends-internet-censorship.aspx. Accessed March 22, 2012 It is the root causes, say experts, that need to be addressed and education to the masses about the negative impacts of such information seeping into families through computer terminals. Government, so far, has not done anything like such in this direction; creating doubt over its legitimacy regarding the proposal. Legitimacy can be established by addressing the issue from the social point of view than just bureaucratic one. Conclusion Australian government’s sentiment behind the proposal is well-understood and justified, but the way this matter is being handled – through mandatory ISP level filtering, is far from that. The proposal, as on date, is mired in a number of technical, legal and social problems, and it is feared that it would not be able to provide the desired outcomes. On one hand, the filter would not be so effective that it blocks every shred of RC-0rated information, and on the other, ISSP filter would be very easy to circumvent. Costs would be high, and so would be the problem of sharing the cost burden. The proposal does not clarify any such issues as to who would be bearing the cost of installing expensive filtering mechanism and subsequent user calls that will result on account of its implementation. Bibliography 1. Ross, J-M. (2009). The Rise Of The Social Nervous System. Available http://www.forbes.com/2009/03/09/internet-innovations-hive-technology-breakthroughs-innovations.html. Accesed March 22, 2012 2. NewsCore, Herald Sun. (2012). Australia an ‘enemy of the internet. Available http://www.heraldsun.com.au/news/more-news/australia-enemy-of-the-internet/story-e6frf7lf-1226297986751. Accessed March 22, 2012 3. Colin Jacobs, “Independentʼs Day and the Censorwall,” (2010). Available http://www.efa.org.au/2010/09/02/independents-day-and-the-censorwall/Accessed March 22, 2012 4. Edwards, T, Griffith, G 2008. Internet Censorship and Mandatory Filtering, NSW Parliamentary Library Research Service. Available http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/7F8B9A55E2FC8932CA2575030083844A/$File/E%20Brief%20Internet%20Censorship.pdf. Accessed March 12, 20o12 5. Rob Faris, “Australian Filtering Announcement Raises Questions and Ire,” OpenNet Initiative Blog, January 8, 2008, Available http://opennet.net/blog/2008/01/australian-filtering-announcement-raises-questions-and-ire. Accessed March 22, 2012 6. Classification (Publication, Films and Computer Games) Act 1995 (Cth)s 9A: Guidelines for the Classification of Films and Computer Games 2005 (Cth) 7. Protecting Civil Liberties in the Digital Age. Available https://www.aclu.org/free-speech/internet-censorship. Accessed March 22, 2012 8. Darlington, R. (2009). Available http://www.rogerdarlington.me.uk/Internetregulation.html. Accessed March 22, 2012 9. What is Refused Classification ("RC") material? AU Gov't Mandatory ISP Filtering / Censorship Plan. Available http://libertus.net/censor/isp-blocking/au-govplan-refusedclassif.html. Accessed March 22, 2012 10. Moses, A.( 2009). "Spoof Conroy website protests at internet filter plan". The Sydney Morning Herald. 11. The Observer and Guardian v. the United Kingdom, 14 EHRR 153 (1992). 12. Collins, L., Love, P., Landfeldt, B., Coroneos, P., (2008). Feasibility of ISP level filtering. Available http://www.dbcde.gov.au/__data/assets/pdf_file/0006/95307/Main_Report_-_Final.pdf. Accessed March 22, 2012 13. Hutchinson, J. (2010). Opt-in ISP-level Internet filter wasn't feasible: Academics. Available http://www.computerworld.com.au/article/344796/opt-in_isp-level_internet_filter_wasn_t_feasible_academics/. Accessed March 22, 2012 14. China Defends Internet Censorship (2010). Available http://www.securecomputing.net.au/News/214503,chinadefends-internet-censorship.aspx. Accessed March 22, 2012 Read More