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Greenleaf, Graham --- "Net-nannies #1" [1996] PrivLawPRpr 10; (1996) 2(10) Privacy Law & Policy Reporter 194

Net-nannies # 1

Australian Broadcasting Authority Investigation into the Content of Online Services: Issues Paper, December 1995 (URL http://www.dca. gov.au/aba/olsissue.htm)

The dangers to privacy in Bills to censor the Internet in WA, Victoria and the NT were outlined in 2 PLPR 148. The Australian Broadcasting Authority (ABA) is the latest body to dip its toe into these turbulent waters, but its issues paper gives only a few clues as to which direction it intends to swim.

The ABA issues paper commences with a valuable lay-person's guide to the variety of online services, and also contains summaries of the existing regulatory structure. Other than that, it is mainly limited to a catalogue of general descriptions of issues.

The ABA seeks submissions by 16 February 1996, and is due to report to the Minister by 30 June 1996. Submissions received on disk will be available on the ABA home page at URL http://www.dca.gov.au/aba/hpcov

Inquiry's broad scope

It is important to realise that the ABA's enquiry is far broader than explicit sexual material or violent material. Its terms of reference from the Minister for Communications and the Arts require it to investigate:

The ABA notes that the following 'concerns' (among others) have been brought to its attention, though it notes that some of these may be beyond the terms of reference:

  1. the potential to widely disseminate material that vilifies people on the basis of race, gender, sexual preference or disability;
  2. the potential for defamatory material to be widely disseminated;
  3. the potential for infringement of intellectual property rights;
  4. the need to ensure that consumer interests are adequately protected;

Privacy issues

Another 'concern' recognised by the ABA is 'the intrusion of online services into people's privacy, and the improper use or disclosure of personal information'. This is an encouraging recognition of the net privacy issue which is quite distinct from censorship issues - the enormous potential for misuse of personal information by service providers who capture usage information. However, the issues paper makes no further mention of this.

The danger posed by censorship to privacy is recognised by the ABA in its identification as one of the 'principles' which could be taken into account 'the need to establish appropriate levels of privacy, especially for personal communications between adults and for commercial transactions', but that is as far as the issues paper goes.

The porn hunt - where's the beef?

The ABA requested the Office of Film and Literature Classification (OFLC) to undertake an informal search of online services, particularly the Internet, to find material which would be refused classification (that is banned) or given a restricted classification in Australia. Officers familiar with classification levels searched for 27 hours. The ABA summarises the findings as follows:

The search found that restricted and refused classification material was difficult to find, at times difficult to download and was more prevalent on Usenet newsgroup files than on the World Wide Web. Warnings as to the content of material often accompanied material available on the Web, but were not used at all on Usenet newsgroups. To receive explicit material, users often had to apply to an address and provide credit card details.

They considered that there was a 'low' likelihood that any user could just 'stumble upon' any of this objectionable material ('involuntary access'). The ABA paper does not indicate whether any of the 'bannable' or 'classifiable' content was located on Australian online services.

While this was not an exhaustive survey, it must raise questions as to whether there is yet sufficient justification for any censorship regime. Given the dangers of any censorship, the most that the OFLC survey may justify is an obligation on some body (such as OFLC) to conduct a periodic survey of the net and report whether the position has changed.

Regulatory models

Nevertheless, the issues paper canvasses at some length various issues in the structure and content of a 'Code of Practice for the online service industry', as it was directed to do so by the Minister. It envisages such a code or codes covering all of the 'concern' mentioned above, and others. It questions whether some services, such as e-mail, should be subject to such codes.

The 'refused access list'

The most significant aspect of the ABA's regulatory discussion is its focus on a potential Code obligation to block access to material which would be refused classification, 'the refused access list'.

One option that may meet this requirement is to develop a 'refused access list'. This would consist of the 'addresses' of computers, and possibly the names of newsgroups, containing material that would be refused classification under the existing classification regime in Australia. Strategies could be considered so that material from these sources is prevented from reaching users' computers in Australia. One strategy to block material from offending overseas sites would be to request Australian access providers with international access to filter out data packets from the addresses on the refused access list. In order to comply with such a request, these access providers would need to program their equipment, such as routers, to check the source address in each data packet against the addresses on the refused access list. Similarly, if any newsgroups were refused classification, operators of servers receiving newsfeeds could be requested to omit these newsgroups from their databases.

Similar strategies could be considered for blocking material originating within Australia and might involve all access providers.

Surveillance of the net

A significant problem with these proposals concerning both 'inbound' and 'outbound' traffic is that it would be a trivial matter to extend such net surveillance, once it is in place, to include the capture of the addresses (web or e-mail) of those who are attempting to access sites on the 'refused access list'. The surveillance potential of the internet is so great, and its influence likely to become so pervasive, that all surveillance proposals should, at this stage of its development, be treated with the utmost caution.

Graham Greenleaf


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