New Australian government sits on website censorship inquiry

The new Australian government has had a draft discussion paper prepared on the controversial Section 313 powers granted to government agencies to force ISPs to block websites, but it has not acted on it since the election.
Written by Josh Taylor, Contributor

The former Labor government was preparing to launch an inquiry into the controversial use of Section 313 of the Telecommunications Act that allows government agencies to force internet service providers (ISPs) to block websites, but the new government has not acted on it since the election.

The use of the power had been relatively unknown until May this year, when it was revealed that the Australian Securities and Investment Commission (ASIC) had accidentally blocked 250,000 websites in April when seeking to block websites associated with investment fraud, including the website of Melbourne Free University. It was revealed at the time that three agencies had been using the power with no oversight.

Given the controversy surrounding the revelations, and the lack of transparency and oversight into the regime, in June, then-Communications Minister Stephen Conroy said he had directed his department to begin looking into how to improve the transparency and regulation of agencies that have been using the power.

According to documents obtained under Freedom of Information by technology website Delimiter and provided to ZDNet, the department began working on a discussion paper into the use of the powers in June, and in July, began circulating draft discussion papers to various government agencies, including the Australian Communications and Media Authority (ACMA), the Department of Prime Minister and Cabinet, the Australian Taxation Office (ATO), the Immigrations Department, the Australian Crime Commission, and the Attorney-General's Department.

The August version of the draft discussion paper, titled "Improved transparency and accountability when blocking online content via Section 313 of the Telecommunications Act 1997", suggests that oversight of the regime could be achieved either through a set of standards developed for government agencies, or through new legislation.

The paper states that while Australia "supports a free and open society in which everyone has the right to express themselves freely online", blocking some online content can protect national security, alert users to risks associated with accessing certain sites, and "disrupt illegal activity by denying criminals and criminal organisations access to Australian users".

The paper defends the broad nature of Section 313 of the Telecommunications Act, stating that it was written to give federal, state, and local agencies flexibility on the types of requests that they make to the telecommunications companies.

"Blocking of online content is simply one form that assistance may take," the paper notes.

The paper also says that s313 does not "provide for unfettered blocking of the internet", limiting the telcos to enforcing criminal law and laws with penalties, assisting law enforcement, protecting public revenue, and safeguarding national security.

The paper proposes that in cases where it would not jeopardise ongoing investigations or national security, agencies should announce to the public when sites are blocked, and there should be a block page put in place when a user attempts to access the page. This would be similar to the Interpol internet filter of the so-called worst-of child abuse material sites that have been blocked by a number of Australian ISPs, including Telstra and Optus.

The discussion paper also suggests that there should be an internal review conducted of the blocks when a complaint has been made about a blocked site, but states that there could also be an external review either through the ACMA or the state or Commonwealth ombudsman.

While the discussion paper appears to be in its final stages of drafting, the inquiry seems to have stalled since the election of the Coalition government in September. A Department of Communications spokesperson told ZDNet that the department is still in consultation with other agencies.

"The department is consulting with agencies on the most appropriate arrangements for use of s313 for blocking content, including transparency and accountability arrangements. The government will carefully consider the outcome of this process before commenting further," the spokesperson said.

The documents released under FOI also contain a number of responses to the proposed discussion paper from some of the affected agencies. The Human Rights Commission responded in late July, stating that it had no comment. This week, Attorney-General George Brandis appointed Tim Wilson, the spokesperson for the right-wing think tank the Institute of Public Affairs, to the role of "freedom commissioner" in the Human Rights Commission, with a special focus on freedom of speech.

The Department of Prime Minister and Cabinet, then under former Prime Minister Kevin Rudd, responded that Australians have freedom of expression online, with limitations in some places such as national security. The department said that it does not support censorship for "upholding community standards", and suggested that the paper should provide examples for the types of websites that are blocked.

Section 313 should also be subject to parliamentary scrutiny through a parliamentary committee, according to the department, and the paper should discuss how easy it would be for "tech-savvy members of the public" to bypass the blocks through proxies or VPNs.

The ACMA said in its submission that there are potentially significant free speech implications in blocking sites, so there is a good case for limiting s313 use to block websites associated with serious criminal activity or national security. The authority said that as long as agencies are transparent about the sites they are blocking, it would be easy to quickly rectify mistakes, and an external review agency would not be needed.

Google raises transparency concerns

The documents also reveal that Google's head of public policy and government affairs in Australia and New Zealand, Iarla Flynn, raised the alarm with the Department of Communications in June — then known as the Department of Broadband, Communications and the Digital Economy — stating that ASIC blocking 250,000 websites was "pretty serious".

In response, deputy secretary for the department Abul Rizvi quoted the talking points provided by the department that 99.6 percent of the sites had "no substantive content" and the blocks were temporary.

"We will soon be holding further discussions with the relevant agencies to develop advice to the minister re use of s313 as he requested," Rizvi said in the email.

Flynn indicated that he is still concerned by ASIC's actions.

"Did ASIC explain how they know these sites had no substantive content? Seems like a lot of checking to review 250,000 websites," he said.

"We are very keen to hear how your investigations progress and are also talking with other interested parties to get their views."

Information on how ASIC was able to determine that the sites contained no substantive content was redacted from the released documents.

It comes as Google's latest transparency report released today shows that in the first six months of 2013, the Australian government made 19 requests to Google to remove content. Five came from court orders to remove three Blogger pages for defamation, one Google search for privacy and security, and one trademark in AdWords. Google said it only complied with these requests 20 percent of the time.

Of the 14 requests relating to 17 items asked to be removed by governments and law enforcement agencies, Google complied with these requests 50 percent of the time.

A total of 12 pages from Google Search, YouTube, and Blogger were requested to be removed due to defamation; three YouTube and Google search pages were requested to be removed on the grounds of privacy and security; one Google Play app and two YouTube videos were requested to be removed due to copyright infringement; and two sites were requested to be removed because they contained adult content.

Of the total 17 YouTube videos that the Australian government agencies asked to be removed, Google removed one for breaching YouTube community guidelines, and three in accordance with local law.

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