iiNet case dealt filter a body blow

It's more than a little ironic that, in the same week that a court absolved iiNet from responsibility for what users do with its internet services, Communications Minister Stephen Conroy should be hitting the lobbying trail to pursue yet another way to control what Australians do with their internet services.

But there he was, telling a Senate Estimates committee that he has been in discussions with Google to voluntarily censor YouTube so as to block potentially offensive content. Citing performance concerns that would stop his own pet internet filter from being used for such a purpose, Conroy is apparently hell bent on pressuring even video delivery sites to self-regulate in order to sanitise the Australian internet.

It's a curious development, particularly since iiNet's victory in the AFACT case would seem to indicate the legislative environment is leaning towards US-style net neutrality. This hands-off principle basically says that internet service providers (ISPs) shouldn't discriminate in the services they deliver to users: VoIP, for example, cannot be blocked by a carrier that is concerned it will eat into their voice revenues, and carriers should not speed-limit or block BitTorrent or any other internet service just because it uses a lot of bandwidth.

Net neutrality is the ultimate pro-competition weapon, since it prevents carrier-cum-ISPs from constructing technological hurdles that favour their other telecommunications services. It's also an important philosophy in setting the rights and responsibilities of ISPs — and, by extension, structuring the legislative framework that controls the behaviour of ISPs.

With little incentive for change, Conroy's call for an industry code of conduct is likely to be met with a big fat 'meh'.

ISPs are already revelling in their new-found freedom: Optus, for one, has stated it has no intention of interfering in its customers' services just to suit one particular special-interest group. Exetel has watered down its anti-piracy procedures, and every other ISP in the country will have used the iiNet case as a benchmark by which to decide their own practice. It's not much of a stretch to assume many will follow Optus' lead. With little incentive for change, Conroy's call for an industry code of conduct is likely to be met with a big fat "meh".

Does the decision automatically mean that forcing ISPs to interfere with measures such as Conory's filter, is now illegal? Not necessarily, since the minister has wide discretion in enforcing policies. But one can be sure he has sat down with a hot cuppa and read the judge's decision word by word — especially the parts where the justice repeats the fundamental principle that ISPs provide a carriage service and nothing else.

Whether or not ISPs will use that decision to challenge the legality of the internet filter remains to be seen. The case could be made that the decidedly pro net-neutrality decision lays the framework for such a legal challenge, since Conroy's filter project — apart from being culturally and politically objectionable — is decidedly anti-neutrality.

In the short term, however, Conroy is coming off as weak — and a bit of a liar, truth be told. Remember when he was quick to seize on the results of the Enex TestLab report last December and proclaim that his filtering proposal won't slow down internet access? And remember how he used that as justification to open the throttle on his push for this particular legislation?

Well, he's now apparently citing performance concerns as a reason he is hoping Google will self-censor YouTube rather than expanding the filtering blacklist to block specific Google content. Doing that would, apparently, slow down internet access, which Conroy promised his filter would never do. Which is why he's hoping to get other organisations to do his dirty work for him — even if it means trying to censor a video sharing site that's added 40 hours of footage since you started reading this.

Yes, apparently Conroy's filter actually encompasses the entire web; talk about scope creep. But Google appears to be having nothing of it: as an organisation, the company "has a bias in favour of freedom of expression in everything we do", a Google Australia spokesperson told me, and already has its own community-enforced processes for trapping and reviewing the kind of content Conroy is trying to block. "Originally, [Conroy] said that he had 100 per cent confidence that filtering would not affect performance," the spokesperson added.

With a seemingly shaky legal platform underneath him, Conroy would appear to be in a poor position to be doing anything more than asking politely.

Given that Google is currently engaged in a high-stakes game of chicken with no less than the Chinese Government over censorship, Conroy is delusional if he thinks Google will do little more than listen to his entreaties, nod politely, and direct him to the pinball machines in its break room. And, with a seemingly shaky legal platform underneath him after the iiNet decision, Conroy would appear to be in a poor position to be doing anything more than asking politely.

Consensus says the iiNet case is far from over, with likely appeals set to chew up court resources for some time still. But the court has dealt Conroy's filtering plan a body blow, if only because it contributes legal weight to the tide of dissent against which he has been swimming. Whether this means his plan ends up all washed up, only time will tell.

What do you think? Will the carriage-without-responsibility iiNet verdict threaten Conroy's filtering plans? Should ISPs plan an anti-filtering test case citing iiNet as precedent?