Google warns of unfettered website blocking power

Google has asked the Australian government to review the power given to agencies to compel ISPs to block websites.
Written by Josh Taylor, Contributor

Google has told the Australian government that agencies using Section 313 of the Telecommunications Act to block websites could result in "over-broad blocking" and should be reviewed.

In April 2013, a bungle by the Australian Securities Investment Commission, that resulted in the accidental blocking of customer access to 250,000 websites for at least two ISPs, revealed that three Commonwealth government agencies had been using Section 313 of the Telecommunications Act to compel ISPs to block customer access to websites on their behalf.

A Freedom of Information request late last year revealed that when news broke of the government using this power to block websites, Google's head of public policy and government affairs in Australia and New Zealand, Iarla Flynn informally raised concerns with the department about the regime. Now, as part of the new Coalition government's review of deregulation in the communications portfolio, Flynn has put it on the record (PDF) that Google is concerned about the use of Section 313 powers.

"It appears that [Section 313] has been interpreted broadly by various Australian government agencies to include the take down of websites that are deemed illegal. Google believes that Section 313 does not contain sufficient safeguards, and could potentially impact significantly on the availability of information and content on the internet through the overbroad blocking of websites," Flynn said.

"Google submits that it is essential that systems and measures be created to ensure there is a transparent process in place for any removal of websites by government departments and agencies."

Flynn added that the government should consider whether Section 313 should remain in the Telecommunications Act, or whether it should be moved under the government's broader national security powers.

Yesterday, ZDNet reported that ASIC, the Australian Federal Police (AFP), and one unnamed national security agency had indicated to the Department of Communications that they intended to keep using the powers in the Telecommunications Act to force ISPs to block websites in the future.

Google also called for the government to review safe harbour rules to protect online companies from the actions of its users.

"Under current Australian law, online intermediaries are potentially exposed to liability for unlawful content published by users (including defamation, hate speech, and pornography), regardless of the fact that they have no practical means of preventing the content from being published," Flynn said.

"Google urges the government to have regard to the need for clear and robust safe harbours for online intermediaries as a central plank of promoting a flourishing online environment."

Online retailer eBay also said (PDF) that online platform intermediaries need to be offered safe harbour from liability for what its users do on its website.

The issue of safe harbour often comes up in the context of copyright, where ISPs argue that they should not be held liable for the actions of their users. As the Australian government mulls options for combating piracy, including implementing a graduated response scheme for users caught downloading copyright-infringing material, Flynn said Google would be "disappointed" if the government went ahead with this plan.

"We would be disappointed if the government decided to go down the route of overly harsh regulation to combat piracy without considering evidence from around the world that this would likely be costly for businesses to implement with little effect," he said.

In Music Rights Australia's submission (PDF), the group said that the 2012 High Court ruling in iiNet's favour against the copyright industry showed that safe harbour rules currently in place are not working to address copyright infringement, and stated that any deregulation from the communications portfolio should result in "an internet which works for everyone and importantly [results] in a copyright environment which gives incentives for ongoing investment in new innovative services and talent".

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