Censorship in Australia

"Can someone please explain to me why is it that everytime someone talks about enforcing "the standards of morality, decency and propriety generally accepted by reasonable adults.", I, a moral, decent and propietous person, know some fucker is going to try and cramp my style? Probably because it's been happening all my life..." -- Gavan Duffy, writing in the newsgroup aus.music.
The Senate Select Committee on Information Technology received the following paper on 31 April 1999.

Of course, they ignored every word in their majority report, but we all knew they would: Senator Harradine doesn't ever put himself on committees which examine "controversial" publications unless he intends to ban them, and Senator Tierney's views are equally well known. The Democrats put up a valiant fight, but they were a minority of one on this particular committee.

I never thought they'd go as far as they did, though: There were a total of 104 submissions to that committee, and only a handful of them were supportive of the law being questioned. Most of the supportive messages came from companies which have a vested interest in censorware, such as America Online and Clairview.

The legislation went to the senate, and was passed with amendments on May 26th 1999.

On May 28th and May 30th, national protests were held, including protest marches/rallies in Brisbane, Melbourne, Sydney, Adelaide and Perth. I spoke at the Adelaide rally, to about 250 brave souls who withstood the awful weather.

The Bill was supposed to be debated in the House of Reps on Monday 31st May, but it doesn't look like that'll happen now: it'll probably be June 21. If you care about this stuff, call your member of parliament.

I've also written a letter to the Minister for Communications, Information Technology and the Arts, Senator the Honourable Richard Alston, explaining the economic consequences of censorship.  I fear it's the only message left which will find the ear of our elected officials; Generally speaking, they've spent the last four years ignoring most of the other arguments we've put forth.

I've also written an essay called When Democracy Fails about what I think has gone wrong. Comments would be appreciated.

I've written another letter to Trish Worth, my local member, which she has passed on to the Prime Minister with a cover-letter. The Honourable Member has promised to keep me posted with the PM's reaction.

STOP PRESS! Further examination of the bill shows that it's going to be next to impossible to defend yourself if prosecuted by it, due to the relaxation of the normal rules of due process which accompany a classification decision.

The Bill probably won't be voted on 'til the 21st of June (according to sources in parliament house). Keep those phone calls coming; Don't let the delay sap your passion. To quote an ex Australian Prime Minister, "Maintain the Rage!"

Anyway, here comes the submission...

Submission to the Senate Select Committee on Information Technology

Thursday April 29 1999

Mark Newton
PO Box 8138
Station Arcade Post Office
SA 5000

Introduction and Executive Summary

I wish to express my opposition to the Government's Broadcasting Services Amendment (Online Services) Bill 1999.

I have been an Internet user for ten years, and have worked in the Internet Industry for seven of those years. The Internet has formed a large part of my life: I work there, I have friends and comrades there, I participate in communities of people with common interests, I communicate with like-minded souls. I use the Internet in a way that members of this committee might be more accustomed to using a telephone or a fax machine: It is an essential communications medium used to conduct the affairs of my professional and private life.

If this bill passes, I will never be able to be confident that I'll be able to use the Internet in the way in which I am accustomed. I have spent several years watching the efforts of some of the experts in the field come up with ways to censor the Internet, and they've all failed miserably. Given the amazing way in which the Federal Government seems to make a mess of every sensitive political issue it attempts to barge its way into, and given that the technical aptitude of the people who have been responsible for coming up with the Government's regulatory scheme is so demonstrably inadequate, I have absolutely no confidence in the ability of the Government to perform any better than those experts.

This issue will probably be the only one that will decide my vote at the next election. I know I am not alone in thinking that: I am in daily contact with mailing lists of thousands of Australians who are almost unanimously against these regulations, and almost every one of those people own interests in Internet small businesses which will be bankrupted if Senator Alston's content regulation scheme is allowed to proceed unchecked.

I have several totally separate grounds for objecting to the bill, any one of which ought to be sufficient to totally oppose its passing:

  1. The bill does not address its stated goals, in that it will provide absolutely no protection whatsoever for children;
  2. The legislation will create a new class of content which is illegal on the Internet but perfectly legal in other media. As such, it represents a fundamental attack on the freedom of speech which Australians are accustomed to enjoying;
  3. The legislation threatens Internet Service Providers (ISPs) with fines of $27,500 per day if they do not block content which the ABA orders them to block, even though there is no conceivable technological method ISPs can use to comply with those orders (as shown by the CSIRO's report, "Blocking Content on the Internet: A Technical Perspective," prepared for Senator Alston's National Office for the Information Economy (NOIE) in June 1998). The threat of unavoidable criminal penalties and the expense of attempting to comply with the new law will drive most Australian ISPs out of business, especially small regional ISPs. As such, it will make a mockery of the Government's efforts to improve Internet access in the bush and promote competition in the telecommunications industry;
  4. The bill will seriously damage Australia's ability to participate in the world-wide online economy, since Australia will be one of the few countries anywhere in the world with such stringent and stultifying controls;
  5. The bill is unnecessary, since sufficient controls already exist to achieve the Government's stated goals, both by enforcing existing classification law (which already applies to the Internet) and by allowing parents to continue their practice of applying their own content controls for their own children. By enforcing Government-mandated content controls, this Bill actually serves to reduce parental control and responsibility over the conduct of children.
  6. The additional censorship measures are opposed by over 83% of the population of Australia (The Age, 25 April 1997). According to a poll conducted by Channel 9's Sunday programme on April 25 1999, 84% of participants indicated that Senators meddling with Media content rules was worse than realistic portrayals of explicit sex and physical violence.



I will address each of these concerns in more detail below.

I would also like to make the point that manifest dishonesty from the Government has tended to make rational debate on this matter virtually impossible. The Internet industry says, "It's impossible"; The Government shows its abysmal comprehension of the issue by saying, "We shouldn't avoid doing it just because it's difficult." The Internet Industry says, "It creates a stupid class of material which is legal offline and criminalized online"; The Government counters by saying, "We are trying to make Internet regulation parallel regulation in other media," again in blatant disregard for the facts and the truth. The Internet Industry says, "It's technically impossible, we can't do business under this regime," and the Government retaliates with a thoroughly insulting press release which bunches Internet providers who don't support it into the same basket as paedophiles, drug dealers and terrorists.

It has been tremendously difficult to carry out serious discussions over the topic of content regulation when every time an Internet-associated group says something, Senator Alston has come forth with astonishing rhetoric which completely distorts what they have said. No finer example can be seen than the one from The Australian on Tuesday 27 April, where the Minister said he had the support of the Australian Computer Society -- Just days after the ACS had released its submission to this very Committee condemning the new legislation.

For these reasons, attempting to have rational debate with Senator Alston has been an immensely frustrating experience, and I believe the Information Technology Industry, which he seems intent on destroying, would be well-served by demanding his resignation from his post as Information Technology Minister.

I strongly urge the Select Committee to strike down the Bill. It is so fundamentally flawed that we as a nation are better off without it. A simple list of amendments is not enough; the Bill must be defeated entirely.

The Bill does not address its stated goals

In introducing his Second Reading Speech to the Bill, Senator Richard Alston claimed that the bill was intended to:
... enact a regime which balances the need for the Government to meet legitimate community concerns about the publication of illegal and offensive material online, that is commensurate with the regulation of conventional media, while ensuring that regulation does not place onerous or unjustifiable burdens on industry and inhibit the development of the online economy.
The Minister then went on to describe a Bill which: In addressing "community concerns," the Government makes a very large show of how much this Bill will prevent drug dealers, paedophiles and terrorists from corrupting our children. Unfortunately, however, the bill doesn't address any of those nefarious categories of humanity at all.

Drug dealing is already illegal, and information or advocacy about drugs (including how to purchase them) is not something which the OFLC can use to make a classification judgement, except in noting that advocacy of drug taking will earn an "R" rating. But R-rated material will not be blocked from overseas servers, so it is of little consequence. We will, however, have the somewhat ridiculous situation where putting R-rated material on an Internet host in Sydney to inform people about where to buy drugs in Australia will be a criminal offense under this bill, but putting exactly the same material on a host in the United States will produce no legal ramifications whatsoever. This provision makes even less sense when you consider that there's no reason at all for those two Internet sites to be distinguishable: The US version could even have an Australian .com.au name!

Paedophilia is also already illegal, and ISPs and state-based industry associations have a long and favourable history of cooperation with local law enforcement authorities to bring justice to bear on the vanishingly small number of individuals who have used Internet technology to distribute that kind of material. This bill is totally unnecessary to protect children against paedophiles.

Terrorists aren't addressed at all: There is no provision in this Bill to regulate bomb making data, terrorist advocacy sites, hate sites, international propoganda, or anything else commonly associated with terrorism. If I published a web page providing detailed instructions for the construction of a pipe bomb, the OFLC would give it an M rating at worst. Even if the bill did address the prospect of children finding information about terrorism, we would be forced to ask, (a) is it a bad thing for children to see the depths of man's inhumanity to man so that our young can make the decision to not follow in their footsteps? and (b) how could we stop such content anyway?

Even if we suspended disbelief enough to consider that the bill did legitimately address its stated goals, there is still another matter to consider: How does the Government expect to be able to ban Internet content? Answer: It has absolutely no idea. This Bill makes no attempt whatsoever to explain how the Government expects to be able to achieve its aims.

There's a simple reason for that: For many years, the Internet Industry, through state and national industry bodies, have been attempting to educate the Government about the impossibility of regulating Internet content. Senator Alston, Senator Harradine, and Prime Minister Howard do not like to hear things like that, however: Each time a member of the Internet Industry has said the word, "Impossible," the Government has substituted the word "difficult." It has then written a bill which is based on the idea that content controls are rational and possible, and that the only reason the Internet Industry is objecting is because complying with the legislation is too hard and the Industry is too lazy.

This is simply not the case. Members of the Internet Industry have always been very precise with our language: When we say, "Impossible," we mean, "Impossible."

The Government has no alternative but to understand that the Internet has made the entire concept of censorship obsolete. It is no longer possible to prevent an individual from publishing anything they wish to publish, nor is it technologically possible to prevent an individual from accessing the publications of others. Furthermore, even if the Government takes action against a particular site, anonymity through encryption technology means that they cannot even work out which country the individual who runs the site lives in, so bringing "justice" to bear against them is, like the rest of this Bill, impossible.

Even if the Government completely shuts down the traditional Internet access in Australia, satellite services will ensure that Australians can still publish and receive information, just like Iranians can still view illegal Western TV programmes by deploying dishes in their ceilings. It will be a very sad comment on the Australian Government's respect for the democratic principles upon which this country was founded if the only way citizens can get reasonable Internet access is through covert methods, however.

The Government wishes to entertain the fiction that the way to make Internet content controls consistent with other media is by placing an onerous and paternalistic set of controls on the Internet just like TV, radio and print publications must exist under. This view is sheer idiocy, however: The way to bring Internet content regulation in-line with other media is to relax controls on other media.

As strange as it may sound to members of this committee, that is precisely where we are heading. When bandwidth is economically available in sufficient quantities to permit TV stations to broadcast on the Internet, they will find a country with an amenable censorship framework (such as the United States) and do precisely that -- And they'll be able to transmit whatever they like to whomever they like, anywhere in the world, whether the Australian Government likes it or not. There are no controls the Australian Government or the Australian Internet Industry can devise which will stop this -- Convergence of technology does not mean that the Internet must be regulated like TV, it means TV regulation will be rendered pointless.

The Australian Government should be attracting that kind of investment to Australia; Instead, it's attempting to doom Australia to an information technology backwater, where Australians are mere consumers of content from other countries. Some Senators might take the view that keeping people who wish to publish material prohibited by this bill out of Australia is a desirable outcome, but that attitude does a profound injustice to the Australian Information Industry: Even if a content provider wished to broadcast material which wouldn't run afoul of this bill they won't do it from Australia because this bill will make Australian Internet access too expensive.

Witness what we have already seen in other media: Books which have been banned by the OFLC can be read online (often for free), and attempts to suppress them have only increased their distribution by giving them notoriety and encouraging other Internet Content Hosting sites to "mirror" them (making them impossible to block). Some publications which have been banned by the OFLC, such as "Steal This Book" and "The Anarchist's Cookbook" have been made available on the Internet for free by foreign nationals specifically because they are banned in Australia, and those individuals wish to make a mockery of Australia's ridiculous publications classification system. The Internet has rendered that system essentially obsolete, and literally nothing can be done about that.

Overseas radio stations routinely broadcast over the Internet, and with a suitably equipped computer and free software downloaded from the Internet, you can listen to anything you want, whether it's from the mouths of terrorists, pornographers, or Senators. Any regulation from the ACA or the OFLC is utterly impossible -- And it will forever be that way.

TV will be next. Then Video. And with each new step, another part of the OFLC's job becomes nothing more than a historical relic of times past when Governments were too insecure to allow people access to the things they actually want to read, hear, see or publish.

That is the future. This committee can stand in front of this rising tide of reality with its finger in the virtual dyke, but eventually they will be overtaken -- And the nation will be overtaken with it, because nobody will want to host content in this country for fear of the Government's content controls and because the cost will be prohibitive. Australia will be to the Information Age what Romania was to the Industrial Age.

I repeat, lest it has not yet sunk in or in case it's a thought too appalling for the members of this committee to bear: The Internet has made censorship obsolete. This has happened. It cannot be turned back. We're not talking about something that will happen, or something that can be stopped if we all sit down and think about it for a while; We're talking about something that happened decades ago without the Government realizing. No matter how carefully the Government drafts its legislation, it will be ineffective. And heed me well: This legislation is not carefully drafted.

The Government's bill cannot hope to even remotely achieve any of its stated aims. The entire technology basis of the Internet has had thirty years worth of design and evolution around the idea that halting delivery of requested data should be as difficult as possible. The Government wishes to fundamentally redesign the Internet in Australia, believing itself to be more knowledgable on the matter than the experts who have had decades of experience putting it together. This wholly unbelievable exercise in arrogance is being perpetuated in response to a totally illusory "community concern" fabricated by Senator Alston, Senator Harradine and John Howard to suit their petty moral agenda. For that reason, if not for any other, the bill should be shot down in flames.

Material legal in other media will be illegal on the Internet

At the present time any one of us could start a publishing company which produces R-rated publications which are available at every newsagent in Australia.

If I buy a scanner and feed the paper-based publication into it, I will end up with a set of files on the hard disk of my computer which contain an exact photographic duplicate of the magazine.

Once I have those files, I might decide that it's time for my hypothetical publishing company to enter the Information Age (hundreds of Australian small businesses make this decision every day, making the material they traditionally sell "terrestrially" available over the Internet). One business model I might pursue would be to make selected portions of each month's issue available on my web site, encouraging viewers to go out and buy the "real" version of the publication. Or I might just make the whole thing available on the world wide web, ceasing distribution of paper altogether (after all, printing and freight are both expensive).

So, to recap: We have a publication which the OFLC has classified "R". We have a set of hard disk files which constitute an exact duplicate of that publication. You can buy the print version of the publication in any bookstore or newsagent in Australia -- What about the online version?

Unfortunately, if I ran a web server which insisted on making the online version of the very same publication available on the Internet, this bill would make me a criminal. The Bill prohibits the distribution of R-rated material from Australian servers. I do have an "out" if I place my material behind a shield provided by an adult verification service, but that'll make my entire business unviable:

With all the problems Adult Verification Services cause, I don't actually need to use them: According to this bill, it'd be perfectly legal to just upload my web pages to a server in the United States, whereupon they can be viewed by Australians without restriction whether I have an Adult Verification Service or not. Thus far, every attempt made by every US Federal and State Government to regulate the Internet has run afoul of their constitution, meaning that it's effectively globally impossible to prevent publication of any content permitted by the First Amendment to the US Constitution.

The end effect of this is to provide significant encouragement for me to abandon the Australian Internet Industry, while providing absolutely no limitations whatsoever on the abilities of Australians to access my publication.

There are already important stimuli for Australian companies to use the resources of the United States for hosting their Internet content:

With these significant obstacles already hampering the Australian Internet industry, the Government wishes to make business even more difficult for us by driving our customers offshore.

The situation for X-rated material is even more bizarre. In Canberra I can publish an X-rated videotape or magazine and sell it to every adult in Australia without limitation. But if I turn that same videotape or magazine into a file on my hard disk I will face sanctions of up to $27,500 per day if I sell it online, even if I use an adult verification service. This is a farcical state of affairs, which runs in direct opposition to the dozens of press releases the Minister himself has released on this very issue: The Minister seeks to make Internet regulation mirror the regulation of other media, but his legislation creates criminals out of people who seek to use the Internet to distribute that which is perfectly legal in any other distribution channel in the country.

If the Government wishes to bring Internet regulation in-line with other forms of media, it can most effectively do so by relaxing controls on other forms of media. The population of Australia is responsible, intelligent, and offended by efforts undertaken by paternalistic Governments to restrict what they can say, read, see or hear. The Government would be well-respected if it heeded the wishes of 83% of the Australian population by acquiescing to the values of freedom and rejection of tyranny which we strive for. In that sense, it is ironic that this submission is being written in the same week as Anzac Day, a day which commemorates the sacrifices Australian soldiers have made to secure the very freedoms which Senator Alston wishes to strip away.

Criminal Sanctions for Internet Service Providers

In the myriad of press releases full of Senator Alston's rhetoric dating back to last year, he has always stated that Internet Service Providers should not be responsible for material authored by someone else, nor should they be responsible for "pass-through" traffic that they can't possibly know about.

That was a bare-faced lie, another reason why the Internet Industry has been finding it increasingly difficult to work with Senator Alston. This Bill carries criminal sanctions, including fines of up to $27,500 per day if ISPs don't censor "pass-through" traffic that they can't possibly know about.

The Bill creates a framework for the ABA to issue "take-down" notices for material which is rated R, X or RC on Australian servers. Note that RC is already illegal, and ISPs have a long history of cooperating with law enforcement to obliterate it. Note also that R and X ratings do not include paedophiles, drug-dealers or terrorists (otherwise known as "The Three Horsemen of the Internet Apocalypse" by some of our more cynical civil libertarians, who observe them being trotted out like flag-bearers every time a politician or media reporter makes comment on the Internet -- Even though they represent such an infinitesimally small portion of the Internet at large that it's actually incredibly difficult to find them even if you want to).

Failure to observe a take-down notice renders the ISP criminally liable. It makes no difference that the take-down notice covers material which is perfectly legal in other media (again, despite Senator Alston's lies to the contrary).

The ABA is also authorized to issue a take-down notice in respect of offshore content if it's rated X or RC (incredibly, Australians can view R-rated sites if they're not within Australian borders). If an Internet Service Provider fails to comply with the takedown notice, it's liable for $27,500 in fines for each day of non-compliance; Furthermore, the ABA is authorized to seek a court order to shut-down the ISP's services altogether.

This incredible regime is supposed to work in blatant disregard of the knowledge that there is no way of adhering to ABA takedown notices. If an ISP takes-down a domestic site, the individual who has published it can take it to an overseas site and serve it up with impunity.

Blocking overseas sites is even more problematic: No technological means exists to make this happen without slowing down the Internet to the point where it's virtually unusable, and making it too expensive for most people to use. Complicated access-lists at the router require memory and CPU resources which are outrageously expensive, especially for small regional ISPs serving country areas via satellite. These bush ISPs would be points of entry to Australia, so they'd need to implement the ABA's secret blacklist -- But with their small customer base, they're the ones least able to afford the resources necessary to implement the Government's policy.

The effect of this legislation will be to obliterate small and medium businesses running ISP services from the cities, leaving Telstra and Optus as duopoly providers. In the bush, Internet services will be lost totally, as small providers simply cease to exist because doing business under the threat of criminal sanctions for failing to do the impossible will be too risky -- Country citizens, already forced to pay exorbitant Internet access fees over poor-quality Telstra lines, will be forced to pay even more for access, since they will have no alternative but to call long-distance to the cities.

The Government cannot possibly not know this: The Internet Industry has been very vocal in its representations to DCITA, the ABA and the OFLC for many years. This has been the strong message of the entire industry: Government-imposed content regulation will represent the end of the Internet industry as we know it, and the end of Australia's opportunity to perform an active role in the world's burgeoning Internet economy.

Even if one assumes that ISPs with sufficient funds to adhere to the legislation actually exist (which is doubtful -- even the Telstras of this would find it unprofitably difficult), the legislation still attempts the impossible. The legislation states that ISPs must not only block the specific content dictated by the ABA, but also any content which is "substantially similar" to the offending material. Any method that might be used to achieve this remarkable endeavour exists solely in the mind of Senator Alston; Perhaps he'd grace us with some of his computer networking expertise by giving us all some seminars to illuminate his unique and special insights?

There is no way to achieve compliance with an ABA take-down order which demands the blocking of material "substantially similar" to the specific material which should be taken down. If a purveyor of "controversial" material wishes to make it available to Australians, he can move it to a different address, run it over an encrypted network protocol, change his web server to a different port number, set up "mirrors" of his site on as many other parts of the Internet as he can reach -- All cheaply, all virtually instantaneously, always one step ahead of the ABA. An ABA take-down order will never make the slightest amount of difference to the material Australian adults can access, but it will turn ISPs into criminals for not preventing the attempts.

Senator Alston has been sucked-in by vendors of what is derisively known as "censorware". Censorware vendors claim to be able to filter-out illegal or offensive content by using advanced software, thereby protecting children from things which might damage them. What Senator Alston doesn't know, however, is that the only reason those companies are able to have any degree of credibility whatsoever is because they regularly change their names whenever their reputation starts impacting their sales.

A wonderful example of this is "iFilter", which Senator Alston specifically recommended on the John Laws programme in early April. iFilter's previous name was "BESS", exposed at http://www.peacefire.org/censorware/BESS. It is a piece of software which is trivially disabled by an end user (instructions at http://www.peacefire.org/bypass/Proxy), and even when it isn't disabled it simply doesn't work.

Censorware vendors uniformly claim that they employ people to individually check Internet resources for legality and offensiveness before adding them to the secret blacklist used by the software; However, in every case yet examined, this claim has been proven to be manifestly false. Some censorware vendors claim that they used advanced technology to scan the Internet for material which meets some well-reasoned blocking criteria, but again, these claims border on fraudulent advertising: To perform such an act would require a revolutionary quantum leap in artificial intelligence technology, and if such a leap were ever performed it'd be highly unlikely that it'd be used for something as trivially wacky as surfing the net for porn.

Automatic filtering software is the snake-oil of the Information Age, as shown authoritatively and conclusively by http://www.censorware.net. It doesn't work; It has never worked; It will never work. The Internet is simply too diverse, too large, too varied to categorize in any way that'd be useful for content regulation. And the situation is getting worse for the censorware vendors with each passing day: As the Internet continues its exponential growth, they're categorizing less and less of it. At present growth rates, there's no way a company making a piece of consumer software for $49.95 can possibly keep up, yet that's precisely what these companies claim to be doing.

The rest of the world knows this -- Censorware was debunked as failed technology by virtually everyone except the Australian Government two years ago. As the Censorware Project's reports ably demonstrate, not only do these products fail to block the kinds of content they should be blocking, they also block a phenomenal amount of perfectly innocent material, ranging from feminist sites to safe sex resources. Pages are usually blocked because a piece of software has found a "bad" sequence of words and added the page to the blacklist without human intervention -- The kind of electronic incompetence that leads to things like a home page for a local soccer league being blocked by CyberPatrol because it mentioned the words "under 15" (leading the software to think it was paedophilia. See http://www.censorware.net/reports/cyberpatrol/ada-yoyo.html).

The Act also specifies that the Industry must develop content rating systems which can be used to block traffic. Senator Alston is presumably referring to implementing rating schemes using something similar to PICS, which has been developed with the assistance of many dollars and man-hours from the ABA. PICS is another failed technology: Despite the grand plans and claims from PICS proponents three years ago, virtually nobody uses it and those that do use it put up with flawed implementations (see http://slash.dotat.org/~newton/pics for a historical viewpoint of what was intended contrasted against what was actually achieved, and http://www.mrlizard.com/haley.html for an expose of the fact that according to the RSACi PICS criteria, Alex Haley's classic of literature, Roots, carries the same rating as a $1.95 pornographic paperback called "Nazi Masters, Teen Sluts". PICS doesn't work either).

In review: The Government expects ISPs to remove and block Internet content on pain of criminal sanctions, despite several years worth of promises to do otherwise (some of which were made as recently early April). Because the Internet has been designed specifically to thwart the kind of outages produced by censorship, there are no technologies which can achieve what ISPs will be forced to do, and there probably never will be (since nobody is going to re-engineer the Internet on a world-wide scale simply to accommodate the wrong-headed delusions of an Australian Federal Minister). Without exception, those technologies which can deliver an approximation of the ABA's demands don't actually work: Their approximation is a poor one at best, they are easily defeated by a teenager with five minutes to spare, they fail to block the overwhelming majority of "controversial" content, and they inadvertently block vast swarths of the Internet which should never be blocked.

The Minister for Information Technology wishes Australia's Internet Industry to bet their businesses on technologies which failed years ago. It is this closed-minded attitude which will see Australia relegated to the backwaters of the international online economy.

Please try to understand the effect this legislation is having on the Internet Industry: The Government is sending out press releases which effectively say that members of the Internet Industry who don't support these laws are in the same boat as child molesters. Meanwhile, the Internet Industry is horribly, palpably aware of the fact that the laws are impossible to comply with. There is an awful sense of fear in the industry at the moment that the Government will be successful in getting these laws through, leading to the destruction of the businesses that thousands of us have invested years of our lives building.

We also know that the Minister is fully aware of this -- He commissioned the CSIRO to report on the matter, and they come forth with conclusions which paint an all-too-clear picture of the impossibility and unworkability of exactly the kinds of things his Bill demands. Rather than heeding the advice of the report he specifically asked for, he ignored it because it didn't say what he wanted to hear. So it isn't at all surprising that some members of the industry are of the belief that the Minister isn't driven by mere ignorance, but that he actually harbours real hatred for everything the Internet stands for and wishes to destroy it.

Would Australia Post survive if it was to be made criminally liable for transmitting certain types of material? And would the Australian population stand for it if the Government demanded that Australia Post intercept and examine the contents of their mail? Yet this is exactly what the Government is demanding from the Internet industry.

Australia's Participation in the Online Economy

As covered elsewhere in this submission, content providers will be ill-advised to use the resources of the Australian Internet industry if this bill passes. There are already substantial incentives for Australians to use overseas content hosting sites, including more favourable taxation, cheaper production costs, cheaper online service charges, better exchange rates and better reserves of bandwidth. The Government will hammer the final nail into the coffin of the Australian content hosting industry, and drive content developers off-shore to "follow the money."

I personally know of people who will leave this country in protest if this bill passes -- These are the kind of emotions Senator Alston has raised with his ill-thought-out legislation. But people don't need to go to that extent to kill Australia's online economy.

Australian users don't even know when the web sites they use move offshore -- It can be done with absolutely no impact to customers in Australia whatsoever, right down to the "domain name" used to access the site (it's a fallacy to believe that a name ending in ".au" actually resides in Australia). An Australian server can be given a new IP address and shipped to a friendlier jurisdiction with virtually no interruption to service.

The Government has seen other Australian industries move offshore, but some industries remain in Australia because running a business offshore is a difficult prospect and a potential regulatory nightmare at the mercy of foreign governments. The Internet has no such barriers, however: A company's registered office can be in Adelaide with its content hosted in California in a .com.au domain name and there's absolutely no reason why Australian's can't continue to access it, and no way for the ABA to assert jurisdiction over the content of the site. It's really that simple.

Some Australian ISPs already run overseas World Wide Web servers to provide better performance to their customers. Putting all Australian content on US servers is a natural next step.

The Bill is Unnecessary

The Government seems determined to make a political point so that it can put out a press release saying that it has done something to "protect the children." As a result of that, it has ignored many years worth of attempts by the Industry to point out that parents can already control what their children can see without these laws. Additional censorship is not only impossible, it's also unnecessary.

The key to "protecting the children" is parental responsibility. The Government would be aghast if a responsible parent allowed their child to walk the streets of Kings Cross at night without supervision. MPs would be justifiably incredulous because of the danger of drugs, violence and molestation -- Yet the Government claims that it's perfectly reasonable that children should be able to use the Internet without supervision, even though it also claims that they're in danger of drugs, violence and molestation.

We can't have it both ways. Either the danger of damage to a child warrants parental supervision or it doesn't. Parents who abdicate their responsibility and allow their child to come into harm from the Internet should receive the same treatment they'd get if they allowed their child to wander Kings Cross. The Internet is not a babysitter, and young children shouldn't be permitted to access it without parental supervision. Teenagers should be provided with a bit more lee-way, but only if the parent is satisfied that they are sufficiently responsible. And if parents are supervising their children, this Bill is useless.

Erosion of Parental Responsibility

The Government is treating every parent in Australia as if they're singularly incapable of bringing up their own children responsibly. Along with many other Australians, I find that attitude patently offensive. Letters and press releases from Senator Alston's office make it clear that is he aware that products exist which can be used by parents to control their childrens' net access, but that he thinks Australian parents are too stupid to work out how to use them.

Senator Alston seems to think that Australian parents are so irresponsible and so ineffective that the only way to bring up children properly is to impose strict controls on the material everyone in the country, including adults, are permitted to view. The unprecedented scope of this breathtaking invasion into the private home stuns the imagination of everyone I've been able to talk to.

Children themselves, the voters of tomorrow, also have good reason to resent these intrusions. For years they have been demonized in the media, painted as irresponsible louts stumbling through their lives as layabouts and borderline criminals, causing trouble through their school years so they can grow up and join the dole queues and leech off the rest of society -- And whenever anyone in any position of influence talks about the Internet, the topic eventually begins to center on the idea that children are sexual deviants who would spend all day surfing the net for porn if the Government wasn't there to bring them up. Is it any wonder that the teenagers of today are reaching adulthood with such profound disrespect for the mass media and the Federal Government?

Anyone who has spent any significant amount of time with modern children knows that those views are simply false. Children these days are, by and large, imbued with a deep sense of responsibility, coming from the need to grow up faster in our modern age. They know how to get vastly more value out of the Internet than their parents do (and infinitely more than the Minister for Information Technology does), and they use it to maximise that value. They understand that they shouldn't give personal information to strangers, they should be careful about who they talk to, and that they should view information with skepticism until it is independently confirmed -- Yet the Government insists on making the assumption that they're all so amazingly stupid that they're in danger of being molested by a complete stranger who doesn't even know where they are as soon as they're allowed on-line without supervision.

The Internet is infinitely safer than the streets of our cities; Yet children routinely take public transport to and from school without supervision. For some bizarre reason, the Government seems to think that these very same teenagers will be in mortal peril if they're allowed to get onto the net once they get home -- apparently even if their parents are there to watch them (remember, these regulations affect adults too). I cannot even begin to imagine how the Minister has reached the conclusions that have driven him to believe the fantasy that his regulations will "protect the children," because (a) they won't actually restrict any material on the net at all, and (b) there isn't a significant threat to protect them from in the first place.

If a child is incapable of looking after themselves on the net by the time they're in their teens, then the parent has failed in their mission to bring up the child -- it's that simple. We permit children to have sex and drive a car at 16 years old, and assume the full mantle of adulthood by the time they're 18, yet the Government's controls exist as a failed attempt to keep teenagers wrapped-up in cotton-wool until they've reached the age where they're expected to look after themselves. How are they to understand the life they'll be thrown into at age 18 if they've been legally excluded from it until the moment of their birthday?

Children who are truly too young to understand and deal with the content of the Internet should be supervised by their parents at all times. This is simple to enforce: Internet access requires a password, and there's no requirement whatsoever for the parent to provide that password to their children. By attempting to make the Internet "safe" for very young children the Government is actually advocating bad parenting by sending the message that it's alright to use a piece of software to bring up your children.

Parents need control. This Bill erodes that control by dragging it back into the realm of the Federal Government and making it a criminal offense for parents to decide to wrest control back (by prohibiting them from using an ISP who isn't victimized by ABA filtering controls).

Australians Object to Censorship

When asked, Australians almost unanimously reject censorship. Some recent polls which spring to mind include:
The legislation is manifestly unpopular. Most people agree with the idea of keeping certain types of material away from unsupervised children, but when the method the Government wishes to use to achieve that goal is explained, even the staunchest advocates of child protection waver and agree that the Bill is wrong. The Government is ploughing ahead with this with the arrogant attitude that it knows best and that the "solution" it has found for the the "problem" is the only rational way to go.

But the Government is wrong.

As the US Federal Court found in its 1996 landmark ruling in ACLU v. Reno (later affirmed by the US Supreme Court), the Internet is "... the most participatory form of mass speech yet developed", and, "The plaintiffs in these actions correctly describe the `democratizing' effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them." Because of this world-wide participation in democratic principles of free speech, the Internet in its present form is precisely the kind of media that appeals to Australians. Yet the Government wishes to destroy those principles, trampling them in the name of some unspecified and undemonstrated danger to our children, which, even if it existed, could be better fought by encouraging responsible parenting.

Every Australian should feel a deep sense of betrayal at the treatment we are experiencing at the hands of Senator Alston over this bill; And I firmly believe that if the bill passes, and Australians see the future of their country in the Information Age evaporate and their freedom of speech in the 21st century's most important communications medium evaporate out from underneath them, they will feel every last nuance of that betrayal for a very long time.


This bill is wrong -- There is no other word to describe it. It criminalizes an industry that is supposed to be formed around a core of common carriers, it destroys freedom of speech, it will obliterate entire industries, it will damage the economic basis of the future of this country, and it will turn Australia into the laughing stock of the Internet community ("Oh, you can't get that email to him, it'll get stopped by the Australia-filter! What a joke!"). As a result of Senator Alston's efforts, I have found myself embarrassed to call myself an Australian in certain online forums over the last few months, as if the association I have with him simply by being in the same country is having a negative impact on my reputation. I know this will only get worse if the Bill passes into law.

Australia is presently the only western democratic nation in the world going ahead with content controls -- that alone should demonstrate how wrong-headed these moves are. To compound matters, the content regulation is based on ideas which were tried and found to be lacking years ago, and no amount of wooly-headed optimism from Senator Alston will prevent them from lacking in future.

Malaysia, usually viewed as a censorious nation, announced that it was abandoning its content control regime in March 1999 on the grounds that the regime was directly responsible for extremely slow uptake of the Malaysian online services industry.

Yet that's the future Senator Alston has in store for us.

Singapore also uses content controls, but they are routinely bypassed and authorities don't seem to mind. Like the Malaysians, they accept that filtering the Internet is a recipe for failure because it is technologically impossible, and like the Malaysians they turn a blind eye to violations as long as they're discrete violations. In Singapore, it's more important to have the law than to vigourously enforce it.

In the United States, censorware vendors continue their name-change dance. What's known as "BESS" today is "iFilter" tomorrow; "X-Stop Felony Load" today becomes "Librarian II" tomorrow. Other companies are more subtle by contracting manufacturers to embed their product in network devices without referring to it by name at all, which is why so many corporate firewall products contain an embedded version of "CyberPatrol". Changing or obscuring their name is the only way these companies can maintain credibility, as each of their old names becomes tarnished by the negative publicity generated when people work out that the product doesn't even come close to performing as advertised. Seth Finkelstein wrote for the Censorware Project:

"So another censorware product has been found to have secretly been blacklisting gay and lesbian material, anti-censorship sites, feminist resources and an incomprehensible scattershot collection of totally innocuous organizations. We can treat this as yet another 'bad apple' in the endless search for the magic anti-porn program. Or we can use it as a basis for examining why such a program won't ever exist.

"A censorware blacklist seems to enjoy the enviable status of being assumed perfect until exposed as otherwise. Even though CyberSitter and NetNanny were caught banning the National Organization for Women, and CyberPatrol stigmatizes feminist discussion and electronic newspaper articles about gays as 'Sexual Acts', every new expose of this type seems to follow a pattern. First, it is greeted with great surprise (and denial) by too many people. Then the company's public relations staff issues a weasel-worded press release of excuses. Finally, later, we are told that that particular program may have problems, but there's another one which is better, and the cycle begins anew.

... and so the cycle continues in Australia.

I converse regularly by email with individuals in many countries. One person I spoke to recently described a plan he has to make money out of Australians by charging them to access a server he will run which will bypass Australian filtering restrictions. There is no technological way to combat something like that short of cutting off the entire country's Internet access, so as Australians become more and more frustrated by the poor performance they're receiving and the missing chunks of the Internet they can no longer view, they'll know that for just a few dollars per month charged to their credit card they can use his service and never worry about stupid Australian content controls again. He'll probably make a ton of money at the expense of ordinary Australians, just one more way that the money in Australia's Internet industry will move off-shore.

The pornographers aren't asleep at the switch either. They are developing a system which will permit them offer service to Australians by changing their network addresses every time they get added to an Australian blacklist. It'll be a matter of "Now you don't see me -- Now you do!" and will trivially frustrate any attempt by the Australian Government to restrict access to those sites.

The Government is doomed to fail in its attempts to regulate the Internet - It's too late, it should have started 20 years ago. The Government is now trying to squeeze the free speech toothpaste back into the censorship tube. If there was ever a war to fight, the Australian Government has already lost it, and it's high time it realized that and stopped fighting.

It is an article of faith that members of parliament are not computer network experts. The Internet Industry has attempted to educate the Minister over the last few years -- We've tried to explain how trivially simple it is to move content offshore without interruption to service and without increased cost to the consumer or provider; We've tried to explain that censorship is a technical impossibility; We've tried to explain that good parenting actually does work. We've tried to point out the breadth of destruction that will be wrought on our nascent industry in the event of ill-advised legislation... The Minister is fully aware of everything I've said in this submission, it hasn't made any difference.

I call upon this Select Committee to condemn this bill in the strongest possible terms. Even in an amended form it will bring untold havoc onto the Internet Industry, nipping Australia's Information Age future off at the bud. The Bill must not be permitted to pass.

Yours truthfully,

Mark Newton

Revised: May 1 1999; Fixed typos and spelling - How embarrassing...