news National broadband player iiNet today revealed it had not implemented the Federal Government’s limited mandatory ISP filtering scheme based on a list of offensive sites supplied by Interpol and had no immediate plans to do so, in a move which appears to represent a total reversal of the ISP’s position on the matter and defiance of the Australian Federal Police’s wishes.

In November last year, then-Communications Minister Stephen Conroy formally dumped the Government’s highly controversial mandatory Internet filtering scheme, instead throwing his support behind a much more limited scheme which sees Australian ISPs voluntarily implementing a much more limited filter which Telstra, Optus and one or two other ISPs were believed to have already implemented. Vodafone has also implemented the filter.such as iiNet.

The ‘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 Refused Classification category of content which Conroy’s original filter had dealt with. 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. In mid-2011, a number of ISPs, such as Telstra, Optus, iiNet and Internode, received such requests from the Australian Federal Police to implement such a filtering scheme for the Interpol list.

Up until today, it was believed that iiNet, and its extensive group of subsidiary brands, including Internode, OzEmail, Netspace, TransAct, Westnet and others, had been planning to implement the filtering scheme. This belief has been based on comments made by the company in November 2012.

posting on broadband forum Whirlpool at the time, iiNet group chief regulatory officer Steve Dalby noted that the Section 313 notices received in mid-2011 by the ISPs had made it clear the scheme was “voluntary”. New notices issued to ISPs in 2012, however, he said, had the word “voluntary” removed from their text.

“… the AFP advised us that compliance was voluntary. As a result we declined to participate,” Dalby wrote at the time. “Now it is clearly no longer voluntary and we are obliged to comply, which we will. As you will no doubt have read from the press release, all ISPs will be served notices by the AFP. I’m sure most will take legal advice on the effectiveness of the notifications and act according to that legal advice.”

Dalby noted iiNet had sought legal advice on the Section 313 notice, and added: ” … we are satisfied that both the advice and our obligations are clear.” However, he declined to release that legal advice to iiNet’s customers and the public, or to release the text of the Section 313 notice issued by the Australian Federal Police to iiNet.

“There’s no need for a press release,” he told Whirlpool users. “We see the matter as ‘business as usual’ – we comply with legitimate request or directions from law enforcement agency all the time. This is no different, now that the element of volunteering has been removed.”

“It’s not complicated,” he added. “The Act hasn’t changed, the section 313 notice has. Previously, it seems, some ISPs were prepared to act on the ‘voluntary’ s313. We declined. Now that it is no longer voluntary, we are complying … The word ‘voluntary’ was deleted from the MS Word document. Why is this such a hard concept to grasp?”

However, speaking today on a financial results conference call, iiNet chief executive Michael Malone revealed that iiNet had not in fact implemented the filter, despite Dalby’s words. “We are not yet in receipt of a warrant that would require us to implement it,” the executive said. “We don’t have the filter in place.”

Malone refused to answer any further direct questions about the issue, including the issue of whether iiNet has, in fact, received Section 313 notices from the Australian Federal Police asking the ISP to implement the filter.

The news comes some months after the Australian Federal Police revealed that its limited mandatory ISP filtering scheme based on a list of offensive sites supplied by Interpol had not yet been taken up by most of Australia’s ISPs, with only Telstra and Optus having implemented the filter so far and a further “large ISP” having flat out refused to comply with the project.

At the time, it was believed that the “large ISP” which had refused to deploy the filter was TPG, which had previously signalled its unwillingness to deploy the new filter. However, Malone’s comments make it likely that iiNet is in fact that recalcitrant ISP. In July, former Communications Minister Stephen Conroy revealed that the Australian Federal Police had appeared to have given up on pursuing the un-named large Australian ISP which flatly refused to implement the filter.

iiNet’s new stance on the filter appears to be more consistent with its previous caution on the issue. The company has previously stated that it was uncertain about the legality of the Section 313 notices. It appears iiNet has now received new legal advice on the notices and has decided to take a stand against their use in certain circumstances.

Wider implications

iiNet’s refusal to implement the filter, despite having received at least one round, and possibly more, of Section 313 notices under the Telecommunications Act, casts fresh light on the consequences for any ISP which may refuse to follow directions listed in a Section 313 notice issued by a government agency, and comes as the use of such notices has recently come to public attention.

In May it was revealed that the use of Section 313 notices had spread beyond the Federal Police, with the Federal Government confirming its financial regulator ASIC had started requiring Australian ISPs 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 deem questionable in their own portfolios. It was subsequently confirmed that another un-named agency within the Attorney-General’s portfolio had used Section 313 notices to block a site for “national security” reasons.

There appears to be no public oversight of the process of using Section 313 notices to request websites be blocked by ISPs, no appeals mechanism, and no transparency to the public or interaction with the formal justice system. A move by ASIC in April to block several sites suspected of providing fraudulent investment information resulted in the inadvertent blockage of some 1,200 other innocent sites, and the regulator has since confirmed it accidentally blocked some 250,000 more.

The revelations were immediately greeted with alarm by a number of political groups and digital rights lobby organisations, who 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 practice is.

Not everyone believes that the Section 313 notices which are being used by the Australian Federal Police to implement the limited Interpol filtering scheme are in fact legal. For example, Australian free market thinktank the Institute of Public Affairs has accused the Federal Government of relying on an “obscure” section of telecommunications law in a way that was never intended to implement its new limited Internet filtering scheme, and warned of the potential for scope creep under the scheme.

“The Gillard government is handing over control for the list of banned websites to the international police agency, Interpol, and is using an existing law in a way that was never intended,” wrote Simon Breheny, director of the IPA’s Legal Rights Project, last year.

“The use of an obscure provision of the legislation raises serious legal issues – it is highly doubtful whether the law can be used to compel ISPs to block websites at the Minister’s behest. If the Minister always had the power to impose an internet filter without the need for new legislation section 313 would have been used from the beginning,” Breheny added.

opinion/analysis

Wow. Talk about a bombshell. So iiNet is refusing to implement the Federal Government’s mandatory Interpol filter. How embarassing for the Government and the Australian Federal Police. It is looking more and more like that scheme is a dead duck at the moment, with only Telstra, Optus and Vodafone really being known to have implemented the filter.

And iiNet’s refusal to participate also raises massive questions about the use of Section 313 notices in general — if iiNet can refuse a request by the Australian Federal Police to implement an Internet filter, could it also refuse a request by the Australian Securities and Investments Commission (or any other agency) to block discrete websites? It seems very likely it could. I think Greens Communications Spokesperson Scott Ludlam is right on this one — this section of the Telecommunications Act is unclear and requires legislative clarification.