news Ding, dong, the witch is dead. Almost five years after the current Labor Federal Government starting trying to force its controversial mandatory Internet filter policy on an extremely unwilling Australian population, Communications Minister Stephen Conroy has formally dumped the policy in favour of a much more limited system already in place at Telstra and Optus.

In mid-2010, facing an inability to get its filter legislation through Parliament due to the opposition of the Coalition and the Greens, the Government delayed the introduction of the mandatory filtering system, pending the delivery of a report reviewing Australia’s content classification system. At the time, Conroy acknowledged that “some sections of the community” had expressed concern about whether the range of material currently included in the Refused Classification category (which the mandatory filter system is slated to block) correctly reflected current community standards.

That report was handed down at the start of March this year. Although it recommended a slight watering down of the RC category rules and the renaming of the category ‘Prohibited’, it barely mentioned the filter. Since that time, Conroy has not substantially commented on the future of the filter, although in late February he appeared to attempt to conflate the mandatory filter with a similar, but much more limited filter which Telstra, Optus and one or two other ISPs have implemented.

That ‘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 RC category of content. 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. It is believed the AFP has issued such notices to Telstra and Optus to ask them to filter the Interpol blacklist of sites.

In his statement today, Conroy said that given the “successful outcome” of the limited Interpol filtering scheme used by Telstra and Optus over the past year and a half, “the Government has no need to proceed with mandatory filtering legislation”.

“Blocking the Interpol ‘worst of’ list will help keep children safe from abuse, it meets community expectations, and fulfils the government’s commitment to preventing Australian internet users from accessing child abuse material online,” Conroy said.

“The Gillard Government takes the safety of children seriously and believes that there is never a place for child sexual abuse material in our society. There is also widespread community support for blocking access to child abuse material. Several Australian ISPs have already been blocking sites on the Interpol list for over a year. They are reporting that this has had no impact on internet speeds or congestion and they have had no reports of people being denied access to legitimate web content.”

Conroy said Australia’s largest ISPs had been issued with notices requiring them to block these illegal sites in accordance with their obligations under the Telecommunications Act 1997. “I welcome the support of Australia’s major ISPs and the Internet Industry Association for taking these steps. This means that more than 90% of Australians using internet services will have child abuse material blocked by their ISP,” Conroy said.

In Conroy’s statement, the chief executive of the Internet Industry Association, Peter Lee, whose group brokered the Interpol filter deal between the Government, ISPs and the Australian Federal Police, praised the new filter approach by the Government. “ISPs recognise their role in assisting law enforcement agencies and meeting their obligations under the law. Blocking the INTERPOL ‘worst of’ list is a positive step in preventing Australian internet users from committing the offence of accessing child abuse material,” Lee said.

Conroy’s statement said the Australian Federal Police (AFP) would now begin issuing notices to smaller ISPs and would work closely to assist them in meeting their obligation under Australian law and prevent their services being used for illegal activities.

Background

Since Telstra and Optus implemented the Interpol filtering scheme in mid-2011, there have been no known public complaints about the system and no sites known to have been wrongfully added to the Interpol list apart from known child abuse sites. In addition, users of both ISPs have not complained publicly about speed issues with respect to the Internet filtering system. However, some segements of the community are still concerned about specific details of the Interpol filtering scheme.

For example, when Telstra and Optus implemented the Interpol filter, neither explicitly communicated with customers to let them know that the scheme was in operation and that their Internet connections were actively blocking a small list of sites; and neither is known to have updated their terms of service with customers.

In addition, in contrast with the mandatory Internet filtering policy (which was to have been administered by the Australian Communications and Media Authority) there is currently no known civilian oversight of the scheme, which is administered by the Australian Federal Police and international policing agency Interpol, apart from questions which parliamentarians may put to the Federal Police.

Furthermore, Section 313 of the Telecommunications Act does not specifically deal with child pornography. In fact, it only requires that ISPs give government officers and authorities (such as police) reasonable assistance in upholding the law. Because of this, there appears to be nothing to stop the Australian Federal Police from issuing much wider notices under the Act to ISPs, requesting they block other categories of content beyond child pornography, which are also technically illegal in Australia but not blocked yet.

A number of sites which were on the borderlines of legality — such as sites espousing a change of legislation regarding euthanasia, for example — were believed to be included as part of the blacklist associated with the Federal Government’s much wider mandatory filtering policy. It is not clear what safeguards exist to prevent the Interpol filtering scheme being extended by the Australian Federal Police to include such extra categories of content.

The current attitudes of ISPs apart from Telstra and Optus towards the Interpol filtering scheme are also currently unknown, with it being unclear whether they would implement the scheme if the Australian Federal Police issued them with a request to do so. Last year, ISPs such as TPG and Exetel said right out that they would reject such an attempt, while others such as iiNet and Internode said they were unclear as to the specifics of the situation.

The efficacy of the Interpol filter has also been publicly questioned. Optus has admitted that users would be able to defeat its implementation of the Interpol filter merely by changing the DNS settings on their PC. And information released under Freedom of Information laws by the AFP late last year shows as time went on, less and less requests were made by Telstra customers to access child abuse material on the list — presumably, as Telstra customers attempting to access the offensive material became aware that the telco had implemented a filtering system to block the requests.

For the first five weeks it operated, from 1 July through to 7 August last year, Telstra’s filter blocked a total of 52,013 requests to access child abuse materials online, with 10,402 average requestsper week. Average requests per day were 1,405, with the highest day recorded seeing 2,443 requests blocked and the lowest seeing 915 blocked.

However, over the succeeding weeks through to mid-October last year, fewer and fewer requests were made. In the week commencing 13 August, 8,649 requests were made, but by September the figure was down to between 1,193 and 3,452 requests per week, and in the week beginning 15 October, just 989 requests were made — which had previously been close to the lowest requests received in one day, in the filter’s first month of operation. In the period from mid-September to mid-October, the lowest day saw just 99 requests made by Telstra customers to access the blocked material.

Delimiter has encouraged the Minister to hold an open press conference on the issue to take questions from the media, as well as to issue a discussion paper on the issue which would allow the public to comment on the scheme formally. In addition, we have invited the Minister to respond to the following questions in writing:

Given the wide-ranging nature of the Interpol filter — affecting most Australian Internet users — why was no public consultation held before the Government decided to take take this step? I note that the Government has never held a formal public consultation into Internet filtering in general.

How would the Government respond to the claim that there will be no civilian oversight of this Interpol filtering scheme, with key information about it only being released over the past several years through Freedom of Information requests filed with the Australian Federal Police?

ISPs such as iiNet, Internode, TPG and Exetel have declined to participate in this scheme so far over the past 12 months, with some citing uncertainty of the legal situation. How would the Government address the claim that the legal ground of this Interpol filtering scheme, notably the process whereby the AFP issues notices to ISPs, is not clear?

Which further ISPs will the AFP issue notices to? Has the Government already received support from those ISPs for the scheme? How will the Government react if an ISP declines the notice?

How would the Government respond to the claim that there is the potential for the AFP to issue notices beyond the Interpol list to ISPs, in an approach which could be dubbed ‘scope creep’?

Neither Telstra nor Optus explicitly notified customers that they had implemented the Interpol filter when they did so last year. What guidelines will the Government be placing around ISPs’ participation in this scheme?

opinion/analysis

I’ll publish some separate thoughts on this later today (Friday), but I wish to note in general that I applaud Conroy’s long-awaited decision to can the mandatory Internet filter policy. It’s about time, and this will remove what I consider to be the last real blemish on Conroy’s record as Communications Minister. A general consensus has been building in the industry over the past year or so that the best way forward for this policy is for ISPs to block the Interpol list; and the experiences of Telstra and Optus appear to confirm that the Interpol filter isn’t going to do much harm; even if implementing it will actually have a negligible effect on those peddling child abuse materials.

However, that’s not to say that the scheme is perfect; and in fact it needs quite a bit of work before we’d be satisfied with it. A modicum of transparency would be a start; dragging information about the Interpol filter out of the AFP through beating it around the head with Freedom of Information laws hasn’t exactly been an easy process over the past year or so; although I’m certain that for the AFP, the pleasure has been all mine.

My thoughts in summary on the Interpol filter haven’t actually changed since July last year, when I wrote the following, in an article entitled ‘Five disturbing things about the Internet filter’:

“… we don’t want to be too harsh about the IIA’s Interpol filtering scheme as it is being implemented by Telstra and Optus. It is quite hard for a site to get on Interpol’s blacklist, with multiple agencies having to authorise additions, and there is a certain attraction around the idea that we’re only blocking the “worst of the worst” sites containing child pornography, instead of a much wider category of content. In addition, it doesn’t seem as if there have been many instances internationally where implementation of the list has caused problems. However, we are mystified as to why the IIA, Telstra, Optus and the AFP are displaying such a lack of transparency in their implementation of the scheme. We are talking about a filtering scheme here which is being implemented behind closed doors, with little notification to customers, with no civilian oversight, an unclear legal framework, the potential for scope creep and a limited and secretive appeals process overseen by the agency which drew up the list to start with. Come on, Australia. Is this the best we can do?”

You’re 95 percent of the way there, Minister. Why not bolt on a few transparency and accountability measures so the AFP doesn’t go hog wild with scope-creep-style Section 313 requests, and then we can lay this one to bed for good?

Image credit: Mykl Roventine, Creative Commons