Bassett said the EFA’s unsuccessful bid to access the ABA’s list of banned online content under FOI laws means that particular legal avenue to establish what falls under mandatory filtering is a no through road. Australians, he reminded, have no explicit freedom of speech within the constitution.
“There are cases under the constitution where for example there is freedom of speech in relation to political expression, and that’s been held in a number of cases. For example, in the future if you did find or were able to get evidence showing that some political group has been added to these filters, particularly at the ISP level that never gets seen by people, there might be some room for challenge there. But if those filters don’t get published, how will you ever know?”
Bassett said the term “illegal” in an online context is ambiguous, where child pornography, defamatory material or content that violates copyright infringement could all be considered “illegal” content.
Clapperton warned that we are already seeing special interest groups pressuring the government to add so-called “illegal” content to the blacklist.
“[Independent Senator Nick] Xenophon has said he wants to block access to Internet gambling sites because they are supposedly illegal; the copyright holders will want to block access to all the Web sites on their shit list; the Muslim lobby groups will probably want to block access to the Catch The Fire Christian Ministries because they are inciting racial hatred; the Jewish lobby groups will want to block access to Frederick Tobin, any other holocaust-denying Web sites and Hamas; and the Family First Senator [Steve] Fielding has said he wants to block access to “pro-anorexia” Web sites.
“Every organisation with an axe to grind and any kind of political clout will be lobbying the government to extend the blacklist to block access to whatever it is that pisses them off. They don’t even tell the operators of a site that it has been blacklisted, which as a practical matter means there is no appeal for these decisions. In the case of a false positive it is really dependent on somebody discovering it by chance,” he said.
Greens Senator Scott Ludlam grilled Senator Conroy during a Senate Estimates hearing last week over the details of what will be considered “illegal” under the filtering scheme, and what level of filtering users will be able to opt-out of (see summary).
“I’m no clearer than I was before the conversation I had with the Minister last week. What I think they are trying to do is have two levels: One level where everything which is “illegal” would be blocked, and there would be a less restrictive list of material that would be automatically blocked and you can opt-out of that. I don’t think they are all that clear themselves how that is going to be technically possible,” he told Computerworld.
Ludlam questioned Conroy’s comparison of Australia as following other countries such as the UK, Canada and New Zealand where filtering of blacklist material had been introduced.
“It got really muddy around the subject of what other countries were doing, and what would be considered mandatory and what would be opt-out. He really muddied the waters on the countries that they are trying to compare us to. My understanding is not a single one of them has instituted or even seriously tried to institute mandatory content blocking. As far as I am aware they are all trialling optional content blocking,” he said.
“None of them are really having a proper go at mandatory filtering. When you look at the countries that are attempting mandatory filtering of “illegal” content on the Net, it’s a very different set of countries: China, Burma, the UAE and other places.”