Ceci n'est pas une blacklist

There is a moment in the Bond flick Quantum of Solace when the obligatory bad guys, ensconced in a luxury bunker in the Bolivian desert, express their concern about something.

Bond, James Bond
(Credit: American Broadcasting Companies, Inc)

"It's just the fuel cells," the generic general-and-all-round-bad guy laments. "The whole compound runs on them." "Sounds highly unstable," his associate replies.

Knowing what happens when you cross James Bond and something highly unstable, it's a given that we can expect him to make an explosive appearance; as always, 007 doesn't disappoint. We inherently just know that concentrating lots of power in a small space cannot be a good idea.

Perhaps Communications Minister Stephen Conroy should watch more Bond, because he seems to have been genuinely caught off guard when a list of internet pornography and other associated sites, purporting to be ACMA's controversial blacklist, was published to the world by Wikileaks — driving filter opponents into a frenzy and pushing ACMA and Conroy into full-scale crisis management.

I was on the phone with ACMA head Chris Chapman, discussing an unrelated matter, when an associate entered his office to have him sign off on the final wording of ACMA's press release. I asked Chapman about the list, and his response — "the statement I'm just signing off on says that it is not the ACMA blacklist" — came in a tone that suggested he had had less stressful days.

Whether you believe it was the real list or just an unrelated catalogue of depravity as an apparently Magritte-inspired Conroy insisted, the event gave us a glimpse of the panic that will ensue when the blacklist controlling Australia's filter is eventually published (and it will, I am sure, be published).

Yet was this list the correct one? ACMA and Conroy say no, that the real list is much shorter. This in itself is a strange admission since many of the sites on the Wikileaks' list would, from their descriptions, seem to be clear candidates for the filter; if this list has more than 1,000 sites that the government hasn't gotten around to adding to the blacklist, well, just how useful (read: comprehensive) is it anyways?

Even if it wasn't the list, and was just some pervert's Firefox bookmarks file, the quick and fevered response suggests that Wikileaks certainly hit a nerve; why else would Conroy be talking about ACMA referring the matter to the Australian Federal Police? Why would he be making statements like "the leak and publication of prohibited URLs is grossly irresponsible" — yet in the same breath telling us the Wikileaks list was not in fact full of prohibited URLs?

If his denial is correct, then Wikileaks' list is not one of the prohibited URLs, and while its publication may be gross it does not qualify as being "grossly irresponsible" in his terminology. Even his use of the word "irresponsible" is curious, as it implies that the responsible thing is for everyone to play along and keep the list secret. He still seems to assume broad support for his filter, while there is in fact so much resistance to it that hundreds were motivated to rally against it in the streets. History has shown that sort of thing doesn't happen over just any issue.

One could make the argument that Conroy's crusade for web filtering means he bears the full responsibility for the publication of Wikileaks' directory of smut; will he count that on his list of achievements as the Rudd Government argues its case for re-election?

Supporters of Conroy's web filter may point to the list as evidence that the web is replete with smut, but this is hardly a surprise. Others will point out that making lists like this, which are more than likely to emerge in some form at some time, is in and of itself dangerous since it concentrates on otherwise widely disseminated information in a potentially explosive and damaging package.

Media outlets aren't broadly linking to the Wikileaks page in question, but anybody with even cursory Google skills can find it in around 15 seconds.

One could make the argument that Conroy's crusade for web filtering means he bears the full responsibility for the publication of Wikileaks' directory of smut; will he count that on his list of achievements as the Rudd Government argues its case for re-election?

Yet the response also raises thorny legal questions: has an offence been committed by publishing a URL — just a string of characters that is in and of itself no less offensive than www.dbcde.gov.au — even if it's not accessed?

Even if so, how can people be punished for publishing a prohibited URL if they have no way of knowing it's prohibited? If I were to publish the name and address of the neighbourhood sex shop — which is sandwiched in a local strip mall between a takeaway shop and, ironically enough, a retail front for a local ISP — would that be an offence? Or, even, offensive?

I've already elucidated my argument that while anything stemming the flow of child pornography is a good idea, Conroy's filtering approach is simply incompatible with the ideals of a free and democratic society. The events of the past week show that it's also a catalyst for problems — and will remain a rallying point for internet libertarians determined to expose the blacklist to the world. The inevitable publication of other "real" blacklists will have regulators jumping at shadows and in a disadvantaged position to promote a filtering scheme whose credibility has been seriously undermined.

Some good may yet come from this exercise, however. If the real list were found to include objectionable but not inherently illegal content, as many fear, it would shatter the air of legitimacy about the whole process that Conroy has worked so hard to create. Indeed, the list already does apparently include such content: witness ACMA's recent stand-over tactics against Whirlpool.

The site in question, like many on the Wikileaks' list, may be graphically nasty and morally objectionable (I haven't seen it) but descriptions do not suggest it falls within the brief of prohibited content which, as outlined by Conroy, includes "child sexual abuse imagery, bestiality, sexual violence, detailed instruction in crime, violence or drug use and/or material that advocates the doing of a terrorist act."

Even if the ACMA blacklist were published, down to the letter, Conroy and ACMA would likely just deny it. Which means we will never know just what kind of web filtering regime we are subject to.

Expanding the web filter to include sites for political or ideological motivations would taint the whole process, validate critics' claims of intellectual censorship, and leave the government no option but to scrap the whole heaving, lurching, onerous, bloated, misguided exercise altogether. For this reason, Conroy and ACMA must be fastidious about ensuring the list's character and content will hold up to scrutiny against the stated criteria for inclusion.

Of course, the government's response confirms what we may have already have inferred: even if the ACMA blacklist were published, down to the letter, Conroy and ACMA would likely just deny it. Which means we will never know just what kind of web filtering regime we are subject to. Which undermines the whole concept of transparent governance that Rudd's government was supposed to bring.

Which makes me wonder, yet again, why Conroy is even bothering with all this when existing opt-in solutions were more than adequate. Fuel cells, after all, may have sounded like a good idea at the time, but I'll bet the Bond baddies were soon wishing they'd accepted the lower contractor's bid and just gone with good old-fashioned petrol generators.

What do you think? Was it the blacklist or wasn't it? Has the leak undermined the real list's effectiveness forever? Or is it just confirmation we need the filter even more than Conroy believes?