Years ago, I was with a group of journalists discussing region-coded DVDs with the head of a large electronics manufacturer. We asked how vendors got away with stripping the region-coding feature from the DVD players they sell, which technically seemed to be an illegal violation of DVD licensing and copyright laws. "It's funny," he replied. "It just seems to happen whenever the shipping containers pass under the gantries on the highway from the port. We can't do anything about it."
I suspect similar conversations will be common in a few years, after Senator Stephen Conroy's misguided (he prefers the word "modest") internet filter has been implemented and vendors are selling computers that are pre-configured to bypass it completely or small downloadable filter-circumvention apps undo years of debate and millions of wasted taxpayer dollars with a single click.
All of this would, it appears, be absolutely fine to do. Because with Exit International and Pirate Party Australia-sponsored classes teaching senior citizens how to bypass the filter and access refused-classification euthanasia-related information, the revelation from the minister's office that such classes are not illegal gave way to an even bigger revelation: it will not be an offence to bypass the filter.
Not at all. Not one bit. You won't get fined, jailed, reprimanded, or even forced to sit through one of Tony Smith's speeches as punishment for circumventing the filter. The government does not care, in the least, whether you reconfigure your system to bypass the filter, or teach a hundred people to each teach a hundred others to do it. "I would like to get everyone here to share the information here with as many people as you can, while you can," seminar leader David Campbell exhorted attendees at the Melbourne event.
Electronic Frontiers Australia has already indicated it might even do the hard part for you. Philip Nitschke, who has had more than a few tussles with the government over availability of information, is considering similar actions as part of Exit International's campaign of defiance: "It's one of the things we're going to be putting some of our resources into now," he told me during the Exit session, "because we can see it being an important strategy for the future."
The government does not care, in the least, whether you reconfigure your system to bypass the filter, or teach a hundred people to each teach a hundred others to do it ... call me old-fashioned, but if you're going to pass a law, tradition says that you also set down penalties for breaking that law.
Here, perhaps, it's instructive to quote the government itself: "The independent report on the ISP-level filtering pilot trial found that technically competent people could circumvent filtering technologies," Conroy's office told me in an emailed statement. "Under the government's policy it will not be an offence to circumvent the filtering measures or to show someone how to circumvent."
Now, call me old-fashioned, but if you're going to pass a law, tradition says that you also set down penalties for breaking that law — you know, so people don't break it. For example, Australia's content censorship legislation (PDF) — which Conroy keeps referencing, saying the filter is just an extension of it — lays down fines and potential jail time for infringements. If you possess, circulate, or even facilitate the acquisition of copies of "Stuntgirl" or any of the hundreds of other RC movies, publications and games that are banned in Australia, you're going to be in trouble. But if you help your best mate download a copy online by circumventing the filter, well, that seems to be OK.
OK for you, at least; he'd still be in trouble under existing laws for possessing the movie — which, research tells me, is "like a fever dream dredged from the brainpans of David Lynch, Stanley Kubrick, Darren Aronofsky and Gerard Damiano ... unequivocally, a work of pure art". Heck, that doesn't sound any worse than Mulholland Drive. Although I concede that it may well be.
Artistic pretensions aside, this is exactly the point that many of the filter's critics have made: existing law more than covers the possession or supply of this rubbish. Filter legislation adds nothing valuable to the whole equation, while creating an inaccurate feeling that the government is actually doing something to protect Australian children. The only part of Labor's $128.8 million Cyber Safety policy that will have that effect is its addition of dozens of additional Australian Federal Police officers to pursue and prosecute those involved in child porn and other nastiness.
The filter would suit Conroy's stated objectives more accurately if he were seeking to ban x-rated materials, too. But that presents new logistical problems: the kind of x-rated material that comprises the bulk of internet porn is actually legal in the ACT and most of the Northern Territory. This makes it impossible to expand the filter's scope to a point where it actually would protect against internet porn, since it would contradict the laws of two Australian jurisdictions and cause all sorts of bunfights. In the meantime, Australian children will be blocked from accessing child porn sites but will face no limitations accessing YouPorn or thousands of other x-rated sites.
Conroy isn't saving Australia's internet; he's just laying the framework for one of the world's easiest hacking competitions.
That's Labor's cyber-safety in action, folks. And if Conroy wants to know what will happen once the legislation is introduced, he should probably consider the example of the region-free DVD players, or Apple's iPhone, Apple TV or iTunes software. Those devices, after all, were quickly jailbroken by enthusiasts who wanted to get them to do more than they were designed for. Apple's desperate legal measures, which included suing a forum for hosting a discussion about iTunes' security and fighting suggestions that jailbreaking be explicitly declared a legal exemption to copyright law, have done absolutely nothing to stop hackers from continuing to bypass its protections. Even the iPad, hackers suggest, can be jailbroken using increasingly simple techniques. And the Apple TV can be easily reprogrammed to do much more than Apple intended, using a simple application called aTV Flash.
Since there are no penalties for bypassing the filter, all Conroy is going to accomplish with his legislation is to create a new hacking target for coders. Assuming they can even be bothered with such an easy target, there will be races not to bypass the filter, but to develop the simplest, easiest method of doing so — much as hackers worked to write the shortest version of the DeCSS code that allows extraction of movie content from DVDs. Conroy isn't saving Australia's internet; he's just laying the framework for one of the world's easiest hacking competitions. Since he's already given the OK to circumvent the filter, why not at least offer a cash prize to make it interesting?
Within what I would expect to be a period of months if not weeks, anybody who has an issue with the filter will be able to bypass it on their computer, their mother's computer, their sister's computer and their neighbour's computer with a widely available application — whose distribution cannot even be banned under the filter legislation because, again, bypassing the filter is not a crime.
In fact, my deeply cynical half — OK, three-quarters — suspects the inevitable scams could even use promises of filter circumvention to spread all sorts of malware. This would be unexpected collateral damage that would cause even more problems for Conroy.
Since the government's "mandatory" filter is in fact optional, the only people restricted by it will be those who honestly don't care, or lack the technical skills or caring friends to have the government's censorship removed. And just as some cynics argue that the only people on juries are those without the ability to figure out how to get out of jury duty, the only people the filter will ultimately protect will probably be those for whom RC content never offered an attraction or threat in the first place. For everyone else, the filter will be nothing more than a tranquillised white elephant — large, mean-looking and easily stepped around.