Mandatory Internet Censorship and our Right to Choose

In recent weeks I’ve become aware of the plan to enact filtering of content on all Australian ISPs. At a recent Senate Estimates committee sitting, Senator Conroy let slip that as well as the previously mentioned voluntary filter, there will be a mandatory level of filtering installed in all ISPs. (I apologise for the lack of references, I’ve only got 30 min till my next tutorial, so I’ll have to find them later). The optional filter will block content that isn’t child-friendly. The mandatory filter will block anything that the government censor deems ‘illegal’. While there are the obvious candidates, such as child pornography, extreme violence and advocating terrorist acts, the minister is not being drawn on what else might be included in this category. Senator Fielding from Family First, has advocated the mandatory blocking of any material that would be considered above R18+. For those who are not aware, that would mean no actual depictions of actual sex (see the link to the ACMA rules for Prohibited Content). To say that debate is fierce in the Australian internet community would be an understatement.

There is (of course) a further angle to all of this. An employee of an ISP publically spoke out against such measures, and there is evidence to suggest that pressure was applied by one of Senator Conroys staff with the intention of silencing him. My gut feeling is that this attempt at limiting free speech demonstrates at best an ignorance of democratic values. At worst it shows a conscious disregard for the right to political communication implied in the constitution. John Stuart Mill would not approve.
This a complex issue, not made any easier to untangle by Senator Conroys unwillingness to articulate in detail what will be on the ‘blacklist’. An ABC interviewer recently asked the senator repeatedly, and the answer (if there was one) was the same each time: “Illegal content” is what will be blocked. But it isn’t clear what is meant as in many sates of Australia what is illegal to sell, illegal to possess, and illegal to view can be different things. An example is X18+ video/dvd material . In NSW it’s not illegal to possess or view (in private for adults obviously), but it is illegal to sell it (even to adults). I add also that the blacklist will be secret, and exempt from Freedom of information requests.

I would suspect that the content likely to be targeted would be a reflection of current ACMA Prohibited Content as outlined on their Service Provider Responsibilities page as detailed below.

Under the Broadcasting Services Act 1992, the following categories of online content are prohibited:

* Classifications are based on criteria outlined in the Classification (Publications, Films and Computer Games) Act 1995, National Classification Code and the Guidelines for the Classification of Films and Computer Games 2005.

* Any online content that is classified RC* or X 18+* by the Classification Board (formerly the Office of Film and Literature Classification). This includes real depictions of actual sexual activity, child pornography, depictions of bestiality, material containing excessive violence or sexual violence, detailed instruction in crime, violence or drug use, and/or material that advocates the doing of a terrorist act.

* Content which is classified R 18+* and not subject to a restricted access system that prevents access by children. This includes depictions of simulated sexual activity, material containing strong, realistic violence and other material dealing with intense adult themes.

* Content which is classified MA 15+*, provided by a mobile premium service or a service that provides audio or video content upon payment of a fee and that is not subject to a restricted access system. This includes material containing strong depictions of nudity, implied sexual activity, drug use or violence, very frequent or very strong coarse language, and other material that is strong in impact.

This does include a lot of content that Australian adults take for granted, and don’t think of as illegal. I sincerely hope that it does not come to this, but what is the point of such guidlines if a mandatory filter does not restrict access to what is deemed ‘prohibited’? I would be very happy for anyone who knows the law to enlighten me in this regard.

Regardless of what the government intends to restrict, this is about censorship. At least I think it is and here is why. The claim is that this filtering is about blocking child pornography. However, it has been claimed that the majority of these materials are distributed by means other than HTTP (which is all that wil be filtered). So the filter may not stop thee distribution and production of of this undoubtedly illegal and unethical material, but it may help keep it out of the public eye. On top of this (and this is where I push the limit of my technical expertise) it will be quite possible to circumvent the ISP filtering. I am arguably ‘net-savvy’, but really know very little of such things. And yet it took me only 30 min to find five programs that are capable of braking through the Great Firewall of China. Given that one of these is based on VPN (Virtual Private Network) technology, I’m willing to bet that at least one of these programs would be effective. So I suspect a determined user could still access child pornography. The minister in charge of the filtering efforts should know this – if he doesn’t he is not qualified for his portfolio. And if he does he must have another agenda. Whether this is about broad censorship, or simply fear-mongering and vote buying remains to be seen. But we are no where near a federal election, so I suspect the former rather than the latter.

What will be restricted remains to be seen. However, for the sake of argument, assume that in addition to child pornography other material will also be restricted. I assume that initially this extra material would at least include things like:

• Fetish and BDSM (even with consenting participants this is categorised as ‘Refused Classification’ at a federal level in Australia).
• Material that could be deemed instructional in the undertaking of a criminal act. This could include instructions for manufacturing illicit drugs, breaking copyright, euthanasia.
• Political (or indeed any) material that would be interpreted by the censor as inciting violence.

In the first instance I’m not sure that even restricting this above material is ethical. Please note, I agree that child pornography should be blocked, as there is clear justification due to the harm to the victims involved, and I have similar feelings about showing gratuitous act of violence. But the further we stray from these more clear-cut cases, the less ability we have to uncontroversially appeal to the harm principle (or something like that). In my opinion, the further away from there being a clear case of harm involved in the production or consumption of so-called prohibited material, the higher the likelihood of an abuse of governmental power resulting in harm to society. If we stick with cases where it isn’t obvious that there is harm to the participant (or author), we need to show that there is going to be harm to the consumer or that they will be influenced to harm others. On top of this we need to be sure that the harm is so likely and so great in nature as to override other considerations. This is what already happens – the censor does not ban all violent movies, presumably because the chances of most of them leading to viewers committing violence is seen as small enough.

If the list is more restrictive, and material depicting consenting adults having sex is withheld from consenting adults, we find ourselves squarely in the middle of a debate over the censorship of pornography. And perhaps it is a debate that Australia has to have. Of course, Senator Conroy is less enthusiastic about this, in the last few days he has tried to emphasize that at this stage it is all about “technical feasibility”. Actual feasibility aside (see my comments above), it is a diversionary tactic. Is mind -control technically feasible? Many people might be more concerned with the question of whether it’s morally or ethically allowable even at the stage of testing technical feasibility. And if the government is indeed at this stage, we can see that at least some of those involved have decided in favour of censorship. The debate over pornography deserves a post of it’s own, and I’ll try to follow up on this. For the moment my point is this: We should have the debate over whether or not mandatory internet filtering is a good or bad thing before we start working on deciding if it is possible or not.

Leaving porn aside for the moment, it is important to consider the possible future implications for free speech and freedom of expression. Given the absolute nature of the government blacklist, there has been no detail on how this is to be administered to prevent abuse by minority lobby groups and politicians. In a hostile Senate, the government is prone to make allowances to the likes of Family First. And our constitution implies freedom of political communications, but arguably, not a great deal more. So I would not expect too much protection from that quarter. The ability to order and enforce by law that all ISPs in a country must block access to a particular site is an extremely powerful tool. Without significant oversight the temptation for government to use this tool to suit its (or its lobbyists and political donors) interests will be too great to resist. The horse-trading that occurs when independent senators are blocking legislation should never include back room deals to block certain websites or categories of content, and unless the process is completely transparent, this is exactly what could happen. Nick Xenophon and Steve Fielding have already stated what they they would demand be blocked (in return for their votes of course). Blocking gambling sites for Nick, and all X18+ rated content for Steve is what our freedom to be treated like adults online may end up being worth.

So to sum up: Mandatory ISP Internet Filtering will probably block content that many Australians have no objection to. It probably isn’t technically feasible. It places restrictions on the choices of adult Australian citizens that do not appear to have firm ethical foundations. It won’t achieve its stated aim of combating child pornography – in fact it might create a false sense of security. If it even half-works it will be a very, very powerful tool for controlling what the population is exposed to, and this is too powerful a tool for any government to have and not abuse.

To take action I recommend visiting http://nocleanfeed.com/

A wiki of media coverage can be found here  http://www.overclockers.com.au/wiki/Australian_Internet_Filtering

http://forums.whirlpool.net.au/ Also has a wealth of information (and opinion) on this issue. Key players in this debate can be found there!