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Roger Clarke's 'Coping with Censorship'

How Do You Cope With Censorship?
An Analysis for IT Services Executives
http://www.rogerclarke.com/">Roger Clarke

© Xamax Consultancy Pty Ltd, 1996

Visiting Fellow, Department of Computer Science, A.N.U.

Revised Version of 27 August 1996

This paper was prepared in response to an invitation to address CAUDIT (the Conference of the Australian Universities' Directors of IT), on Magnetic Island, Townsville, on 23 August 1996

Abstract

Considerable energy has been expended during the period 1994-96 by individuals and organisations concerned about the accessibility on the Internet of materials that many people consider inappropriate for children.

In response, some members of the Internet community have spent an inordinate amount of time and money assisting in the education of regulatory agencies, and of Parliamentarians and their staff about the nature of the Internet, and of the communities and the industries that it stimulates and supports.

The focus of the discussion until now has been on those organisations that make a business of providing Internet-related services. Many of these are relatively new and relatively small.

It is important that assessment be undertaken of the impact of proposals for Internet regulation on those parts of existing organisations that provide Internet-related services. In this paper, those organisations are referred to as 'IT Services Groups'. The analysis suggests that I.T. services executives must act quickly but deliberately on the matter.

Staff and students within universities are leaders, and very strong participants, in net traffic. As a result, I.T. Directors in Universities are those most directly and immediately affected by these developments. It is essential that I.T. Directors actively participate in, and even lead the corporate community, in the development of a common Code of Internet Practice.


This paper comprises the following sections:


1. Introduction

Only a tiny proportion of the traffic on the Internet is actually in breach of Australian censorship provisions. During the mere two years since the Web-induced explosion in Internet usage began, however, some sections of the community have succeeded in gaining a great deal of media coverage of the matter.

Statutory initiatives and self-regulatory measures relating to censorship appear fairly likely. These are primarily targeted at organisations that provide Internet access for profit. It appears likely, however, that the scope of the regulatory regime will include internal IT services providers who enable staff and associates to connect to the Internet.

The first purpose of this paper is to assess the responsibilities in relation to censorship law of those executives who are responsible for I.T. Services Groups within organisations generally. In addition, it considers the balance necessary to achieve compliance while performing their primary function of delivering services to their organisations.

The paper commences by outlining the nature and process of censorship law in Australia. It then considers the changes that are arising in the context of the Internet. The emergent regulatory regime is then outlined. On this basis, an analysis is undertaken of the responsibilities of IT Services Groups, and of the options available to them.

The I.T. executives who are in the front line of the debate are those who manage the facilities of universities. The paper therefore considers the special circumstances confronting university I.T. Directors.

2. Censorship in Australia

2.1 The General Concept of Censorship

Censorship is defined by the Macquarie Dictionary, rather too vaguely, as "supervision of the morality of others", and with perhaps misleading precision, as "the examination of [various media] for the purpose of suppressing parts deemed objectionable on moral, military or other grounds".

An alternative definition was provided by the Intellectual Freedom Committee at the 1986 American Library Association Annual Conference. To them, 'censorship' was a change in the access status of material, made by a governing authority or its representatives. Such changes included exclusion, restriction, removal, and age/grade level changes.

There are multiple bases on which freedom of expression may be subject to censorship, or attempted censorship. One example is sedition, which the Macquarie explains as "incitement of discontent or rebellion against the government". This needs careful analysis, because most supporters of democracy would regard 'incitement of discontent' as part of the democratic process, whereas 'incitement to commit violence' lies beyond most people's moral boundaries.

Other examples are subversion ("the act of overthrowing, or causing the downfall, ruin or destruction of, something established"), lese-majesty (injury or insult to the sovereign), the incitement of racial hatred, and the infringement of religious or cultural norms (which includes not only catering for the sensitivities of, for example, Islamic governments and communities, but also bans on the denial of the historical veracity of the Holocaust).

Other constraints on freedom of expression include the common law principles of obscenity, defamation, criminal defamation, contempt of court, contempt of parliament, the law of confidential information, and copyright (especially Crown copyright); and legislative restrictions in relation to privacy, freedom of information exemptions, official secrets, various intellectual property laws, communications with prisoners and with servicemen in operational areas, and visa approval processes.

Instances also arise in which organisations seek to exercise censorship over critical comment (e.g. several universities have made attempts to stifle criticism of their policies or actions by their senior officers), or poor taste (typically materials that are not illegal, but are unpleasant, and, at least in the eyes of the would-be censors, lack any redeeming artistic value).

A wide variety of organisations have interests in imposing censorship, including governments generally, regulatory agencies concerned with stifling the flow of information, associations with self-regulatory responsibilities (e.g. stock exchanges), corporations, government agencies generally, and educational institutions.

Although there is a vast range of bases upon which censorship may be attempted in Australia, their exercise would tend to be perceived as exceptional rather than mainstream. For more substantial and legally authoritative presentations of the position, see Laws (1996).

2.2 The Specific Use of the Term 'Censorship'

In Australia, the term 'censorship' is often used in a restrictive manner to refer only to those limitations on the publication of materials that are expressed in a specific family of statutes and overseen by a specific regulatory agency.

The primary basis on which this kind of censorship is exercised in Australia is pornographic or 'obscene' materials. The Macquarie defines pornography as "obscene literature, art or photography, designed to excite sexual desire". The reference point against which obscenity is measured is generally highly vague, as depicted by the popular expression "I don't know how to define it, but I know it when I see it". At least partly because of the enormous range of interpretations this results in, the words 'obscene' and 'pornography' have generally been avoided in Australian censorship legislation ('child pornography' being an exception).

During the post-war period, the modestly restrictive environment in relation to publications was eased, and during the last thirty years Australians have enjoyed a reasonably free environment in terms of the reading and visual materials available to them.

The Australian Law Reform Commission summed it up this way: "The basis of present censorship policy is the principle that adults in a free society ought be allowed to see what they wish so long as that right does not infringe the rights of others to avoid offensive material, and adequate protection is given to children. Current policy sees offensiveness mainly in terms of sex and violence, and, particularly, any combination of the two" (ALRC, 1991, p.7).

The regulatory regime that is currently in place is based primarily on The Classification (Publications, Films and Computer Games) Act 1995 (No. 7 of 1995). This is overseen by the Office of Film & Literature Classification (OFLC), a semi-independent government agency within the portfolio of the Commonwealth Attorney-General.

Several changes have taken place during the last few years. The States and the Commonwealth have adopted a cooperative approach, and the States are currently endeavouring to achieve a greater degree of compatibility among their own rules, and between themselves and the Commonwealth.

Different regulatory mechanisms apply to different kinds of medium. The recent emergence of multi-media, and the impending arrival of interactive multi-media throws the appropriateness of a medium-based approach into serious doubt.

The remainder of this section provides an overview of the classification of materials and the enforcement of the law.

2.3 Classification of Materials

OFLC is responsible for classifying:

"in accordance with Commonwealth, State and Territory legislation regarding classification matters".

In general, there are three levels of materials:

The shortest formulation of where the line has been drawn in the sand can be found in the OFLC's answer to the question 'What kind of movie is refused a classification?' (which, confusingly, is referred to as receiving an 'RC' classification). Films are refused classification where they, or to the extent that they, include:

  1. depictions of child sexual abuse, bestiality, sexual acts accompanied by offensive fetishes, or exploitative incest fantasies;
  2. unduly detailed and/or relished acts of extreme violence or cruelty; explicit or unjustifiable depictions of sexual violence against non-consenting persons; or
  3. detailed instruction or encouragement in:
    1. matters of crime or violence
    2. the abuse of proscribed drugs

In short, censorship in Australia is primarily concerned with:

2.4 Enforcement

The standard-setting, and the assessment of specific materials, are Commonwealth matters. Enforcement, on the other hand, is performed under the laws of each State and Territory and through their Police Forces. In respect of materials being imported, enforcement is undertaken by the Australian Customs Service.

It is an offence to possess Refused Classification material. It is an offence to import into the country, and it is an offence to sell or hire:

3. Censorship and the Net

3.1 The Application of the Existing Laws

Although it does not appear to have been conclusively established in a court as yet, it seems that the existing laws would apply to materials possessed, sold or hired (and possibly even imported) using the Internet, where the resulting materials were expressed in hard-copy form, or stored in a disk-file. A case of this kind is pending in the A.C.T., but the accused has skipped bail, preventing the matter coming before the court.

It is unclear, however, whether the acts of 'importing' materials over the Internet, viewing materials on a screen, and/or storing materials in non-persistent memory, would be an offence.

Unfortunately, it appears that the notion of 'possession' does not require any intent or consciousness on the part of the person concerned. Hence accidental possession, and even possession as a result of a process of investigation and reporting of material to authorities, also appear to be offences.

Moreover, in at least one instance, a police force is actually prosecuting a case of this nature (the Australian Federal Police - which provides a local police force under contract to the A.C.T. government - has launched a case, separate from the one mentioned above, against Mark Lambert).

This situation may even extend to caches, both on client workstations and on all layers of cache elsewhere. Hence, technically, every cache-operator in the country is quite possibly in breach. This very silly situation will doubtlessly be dealt with sensibly by the courts; but not before some people who are acting entirely reasonably suffer the unjustified time, effort and cost of defending a case.

3.2 Unofficial Enforcement

If cyberspace is a virtual society or cluster of communities, then the possibility, and even likelihood, exists that some groups will attempt to police the behaviour of others.

One model is a collaborative 'electronic neighbourhood watch', whereby attentive netizens bring sites to the attention of authorities. Another model is vigilantes like Cyberangels, who seek to act directly rather than through established enforcement channels. For an unsympathetic review, see van Bakel (1996).

3.3 The Development of New Laws

As a result of irresponsible, sensationalist reporting about 'pornography in kiddies' bedrooms', which commenced during 1994, various government agencies and Parliamentarians formed the view that the Internet was essentially a means for transmitting materials that would attract a restricted or refused classification.

The people and organisations involved further presumed that the existing law was incapable of coping with the challenge. To date, it appears that a serious analysis of that presumption has yet to be undertaken, or at least to be published. (Given that cases have already been mounted against individuals who used the Internet to gather Refused Classification materials, it would seem that the major provisions already work, and that minor refinements may be a sufficient response).

Discussions in Australia have primarily related to the prevention of children accidentally or intentionally discovering obnoxious material. Other strands have been the widely expressed expectation that (at least some) extreme depictions of violence, and instruction in criminal matters (particularly the preparation of explosive devices), not be generally available. The situation is coloured by the apparent desire on the part of a proportion of the population to impose their own moral values on the rest.

The running was initially taken up, in mid-1994, by a combined Task Force of the Commonwealth Department of Communications (which quickly developed a reasonable understanding of both the technology and the issues) and of the Attorney-General's Department (which initially had a great deal of difficulty understanding the matter, and by the end of the exercise was still confused).

The media reports attracted the attention of a (moderately right-wing) Senate Committee. Through most of 1995, that Committee held hearings which all parties involved found very useful, deliberated, and delivered a report that showed some signs of emergent understanding of the nature of the Internet and of the issues involved.

Next, the then Minister for Communications decided for some unexplained reason that the matter should be handed over to yet another agency, the Australian Broadcasting Authority (ABA). Explaining patiently that the Internet is, by and large, not about broadcasting, had no effect. So, by the beginning of 1996, a mere 18 months into the exercise, a new round of consultation, education and discussion was up and running.

Then in April 1996, the N.S.W. Attorney-General decided that this was a State matter, not a Commonwealth one, and took it upon himself to prepare what was nominally to be a model bill on behalf of all State and Commonwealth Attorney-Generals (whose Standing Committee is popularly known as 'SCAGS'). Public access to the draft Bill was denied, but a leaked copy was made available on the net. It was roundly criticised as a highly inappropriate, knee-jerk reaction to public concerns (e.g. Argy 1996, Greenleaf 1996).

A new Commonwealth Government was elected in March 1996. On 30 June 1996, the ABA produced a report to the new Minister, Senator Richard Alston, that showed that the organisation had largely assimilated the information placed before it. The N.S.W. Attorney-General's submission to SCAGS on 11 July met little support, and the ABA's report now appears to be generally accepted as the basis for further discussions of the matter.

The history, including reference to the many documents involved, is presented in Clarke (1996a).

4. The Emergent Framework of Internet Regulation

4.1 Description

The Report of the Australian Broadcasting Authority's Investigation is a 200-page / 500K document which combines background information, argument and recommendations. Unfortunately, the recommendations are scattered throughout the report (at pp. 93, 100, 104, 117, 121, 122-130, 134, 149, 155, 158, 162, 173, 176, 178, 190), and the ABA's considered views appear in even more locations. The flavour can be best gained by reading the Executive Summary (which is to be found in the third quarter of the main web-page).

The ABA report recommends a regulatory framework for 'on-line service providers' based on one or more Codes of Conduct developed and administered by the on-line services industry / community in consultation with the public and relevant regulatory agencies, subject to a number of specific requirements and the purview of an appropriate agency.

Specifically, it is proposed (the primary reference is pp.122-130) that 'on-line service providers':

Further aspects of importance are the encouragement of greater community awareness; the fostering of education programs; and the encouragement of the States to adopt an approach which is supportive of the national industry- based scheme, through both the Standing Committee of Attorneys General and the new Online Government Council.

The report demonstrates a reasonable appreciation of the differences between :

although not all of the ramifications of these differences have been fully thought through yet.

The recommendations generally propose controls over organisations and individuals according to the function they perform. This is important, because the relationship between organisational types and the roles they perform is not simple; for example:

The ABA (assuming that staff turnover is minimised), has an increasingly strong, although still incomplete, grasp of the nature of the technology they are seeking to regulate. It appears that an additional player in the game may be the Information Policy Advisory Council that is currently being formed. It is to be chaired by a well-respected member of the IT community, Terry Cutler, which augurs well for ongoing improvement in the understanding shown. It is also anticipated that the foreshadowed On-line Labelling Task Force will contain a substantial proportion of industry people, which will hopefully help in ensuring that misinterpretations of the technology are minimised.

The remainder of this section provides an outline of content-labelling and -filtering, identifies a number of concerns about the ABA's proposal, and discusses some early moves towards the establishment of one or more Codes of the kind the ABA envisages.

4.2 Content Filtering

Broadly speaking, there are two ways that content filtering can be performed:

Civil libertarians put up strong arguments for not delegating censorship to someone else, but instead performing it as close to the individual as practicable, e.g. Rheingold (1996), Barlow (1996). For an argument as to why even schools (let alone universities and companies) should be very wary of applying delegated censorship, see McKenzie (1996).

The ABA report's recommendation is for ISPs to be required to support personal censorship, using the PICS infrastructure, and applying a yet-to-be developed content-classification scheme based on the existing Australian classification structures. This is, however, coupled with a recommendation that people under 18 not be permitted to have accounts that provide Internet access.

The Platform for Internet Content Selection (PICS) is an infrastructure, developed by the World-Wide Web Consortium, which extends the web to support rating schemes for individual web-pages. It enables:

PICS enables delegated or personal censorship, because material can be filtered at either service-provider or user level, or both; for example, a user can filter out material that is classified less seriously than, or differently from, the 'official' classifications.

An index to material on content filtering is provided in Clarke (1996a). A description of PICS is provided in Clarke (1996b), and a deeper analysis of PICS is available at Whittle (1996).

4.3 Concerns

A significant proportion of the ABA Report's analysis and even recommendations appear to many observers to be balanced and sensible. This section identifies a number of aspects of the present situation in Australia which do, on the other hand, give rise to concern.

(1) Continued Use of the Term 'On-Line'

The ABA appears to still be under the misapprehension that the word 'on-line' is appropriate (see, for example, the discussion on pp. 20-23). Technically, in a packet-switched network, none of the services are 'on-line'. Some present themselves in a similar manner to a genuinely on-line session over a switched circuit, e.g. telnet sessions. But most are expressly asynchronous between client and server, e.g. web and gopher; or between initiator and addressee, e.g. email.

The working definition of 'on-line service' used in the report (p.22-23) makes no reference to connection or synchronicity, and its scope (presumably unintentionally) appears to include the telephone, fax, CB radio and within-premises intercom.

The term 'on-line' derives from the Terms of Reference of the 1994 Task Force, at that stage as a qualifier for 'Bulletin Boards'. It is possible that its continued usage is merely for historical reasons, or for want of an appropriate adjective. Alternatively, it may be symptomatic of remnant misunderstandings by the ABA about the nature of Internet services.

(2) Broadcasting

The ABA, and the Minister, see the ABA as the appropriate body to be invested with regulatory powers. This creates the serious difficulty that the regulator will be continually tempted to force the Internet into the almost entirely inappropriate model of a broadcast medium: as the old adage has it, "when you have a hammer in your hand, everything looks like a nail". Given that the ABA was created solely to deal with the broadcast media, and, apart from this one project, appears to have only ever dealt with the broadcast media, this predilection is hardly surprising.

The ABA Report directly addresses the question of broadcasting vs. 'on-line services', and reaches the conclusion that "there are significant differences ... and any legal definition of an on-line service should be separate and distinct" (pp.45-48).

Unfortunately, the Minister's office does not appear to have read that section. In a classic piece of double-speak, the Minister stated on 5 July 1996 that "Clearly the Internet is not a broadcasting or diffusion service as currently defined in the Act. In establishing our scheme we will need to start with a clean slate and devise a solution which recognises the special attributes of online services, particularly the Internet [which seems like an encouraging start]. Nevertheless, the convergence phenomenon is a fact of life. The Internet, with its increasing use of multimedia content, will increasingly look like the coming interactive broadcasting services, particularly when they both flow down the same hybrid fibre and coaxial cable" (Alston, 1996, emphasis added).

The simplest interpretation of the highlighted text is that the author simply misunderstood what the concepts of multi-media and the Internet entail. An alternative is that it reflects blind adoption by the Minister's office of the perspective preferred by commercial interests, whose sole purpose for an information infrastructure is to project their content at consumers.

The Minister's speech-writer had still not grasped the fact that broadcast is a mode of usage of a medium. Some media can support only broadcast mode, and these (in particular television and radio) have been the traditional focus of regulation. Other media, on the other hand, support multiple modes. The Internet is largely unfriendly to broadcast mode (at least at this stage), and the vast majority of services available over it are not conducted in that mode. As the Internet matures to support broadcast mode, it appears very likely indeed that the non-broadcast services will continue to flourish.

The process of education of ministerial staff and Parliamentarians is far from complete. Worse still, they appear to be under the thrall of powerful 'supply-push' interests, which want to avoid the information infrastructure being developed as a genuinely bi-directional, community-based, people-empowering architecture. This substantial mis-reading of the technological potentials and community mood creates difficulties far beyond the mere question of regulating offensive materials.

(3) Requirements of the Code

Some of the anticipated requirements are entirely reasonable expectations of a mature industry, such as clear communications of the terms and conditions applying to services, an effective complaints mechanism, and an onus to act when a problem is identified.

Other requirements may yet prove to be onerous and/or subject to significantly varying interpretations. For example, the ABA talks of the provision of appropriate community safeguards (which may be interpreted very differently by different parties), and the necessity to clearly detail the conduct required which would constitute a defence to an offence against censorship laws. This can easily be read as imposing a burden greater than that which book-publishers, film-producers and games-suppliers are subjected to, e.g. by extending the restrictions imposed on restricted materials, as the N.S.W. Attorney-General sought to do.

In addition, the content-labelling scheme that is envisaged will need to be developed within Australia to conform to the terms of the schemes administered by the OFLC. It appears that these costs and complications will be borne by participants in the Internet industry and community.

(4) The Organisations Subject to the Regulatory Regime

The ABA's Report refers to the organisations that it envisages being subject to regulation as 'on-line service providers'. The primary discussion is on p.28 of the Report (emphasis added):

In the issues paper 'on-line access providers' were identified as a category of participant who perform the function of supplying users and content providers with network access. The issues paper also noted that many on-line access providers also act as publishers for content creators by supplying authoring services and secure systems for payments. However, many organisations and individuals who provide access to on-line services are increasingly offering services, in addition to access, for users. Therefore, the ABA considers that the function performed by these participants is 'on-line service provision'.

The matter is further discussed on pp.87-88, but no conclusion reached, definition offered, or recommendation provided.

A straightforward approach would be to impose on an 'access provider' (AP) a (practicable) set of responsibilities, and on a 'service provider' (SP) a different (practicable) set; or possibly multiple different sets, relating to specific services. Of course an organisation that functions primarily as an AP might also sometimes act as an SP, in which case it would be subject to the relevant extra responsibilities. Unfortunately the lack of clear conclusions from the ABA's discussion suggests that the concepts, functions and responsibilities may end up being muddled together, in a manner which would be bound to have unfortunate side-effects.

Whatever the scope may be in terms of the functions performed, the question remains as to whether the regime is intended for commercial services only. Nothing seems to suggest that it will be; hence it appears that all IT services organisations that provide access to the Internet are intended to be covered, whether or not they do so for profit.

The question also arises as to whether the regime applies to the Internet only, or also to any other surviving or new networks. It seems reasonable to assume that the use of 'On-Line' is meant to imply that any such service is also meant to be covered by the scheme.

(5) Age Limitations

One seriously problematical recommendation is that service providers implement age verification before granting 'open' account privileges to their subscribers. The very notion of 'verification' is a misapprehension, and the recommendation entirely impractical.

It is in any case a matter of serious concern that the government should preclude people under 18 years of age having accounts (as distinct from applying less extreme controls). This represents an acquisition by the State of a power that is properly left in the hands of parents and teachers. It has a range of additional implications; for example, it would preclude 'street kids' from having access to the information infrastructure. If we wanted to confirm to them that they are excluded from society, that would be a very good way to do it.

An exemption is envisaged for universities (given that matriculants in at least one State are generally only 17 years of age when they enter university). The exception tests the rationale of the rule as a whole.

A much gentler approach, and one much more in keeping with the practicalities of Internet service provision, would be to require persons who are under 18 to have a co-signatory, generally a parent.

In any case, the whole proposition is undermined by the likelihood of use of at least some Internet services without accounts, in such contexts as (popularly but misleadingly described) 'free-to-air' information, and public kiosks.

(6) Multi-Media

Multi-media by definition involve a complex or merger of hitherto somewhat separate means of communicating ideas. Yet no explicit recommendation has yet been made for a move towards rationalisation or integration of the multiple regimes applying to publications, films and games.

This matter will need to be considered by the On-Line Labelling Task Force, which the ABA's report has recommended be established (p.93).

4.4 Early Moves Towards Implementation

It is as yet unclear what the Code or Codes will contain, nor who will be the organisation or organisations that negotiate and promulgate them.

A significant number of organisations claim to represent the interests of the Internet community and industry. In the industry association arena, there are the Australian Information Industries Association ( AIIA), the Association of Australian Commercial Internet Providers ( AACIP), the Internet Industry Association of Australia ( INTIAA), the Service Providers Access Network (SPAN), and State-based Internet Associations in at least Western Australia, South Australia and the A.C.T. Other potential players include the Australian Interactive Media Association (AIMA), IINET, The Internet Society ( ISOC-AU), and Electronic Commerce Australia ( ECA).

Relevant associations of user organisations and individuals include the Australian Telecommunications Users Group ( ATUG), the Australian Internet Users Group (AIUG) and various user groups representing individuals, particularly the PC Users Group ( PCUG-ACT). Other players include the Australian Computer Society ( ACS) and Electronic Frontiers Australia ( EFA).

One source of guidance is the Draft Code issued by the Internet Industry Association of Australia ( the INTIAA Draft Code) on 17 February 1996. A revised version is due very shortly.

INTIAA claims that this Draft Code is based on Australian Standard AS-4269-1995, the Guidelines for Implementing Codes and Guide to Fair Trading Codes of Conduct published by the Australian Competition and Consumer Commission. It further claims that "[the Code] attempts to comply with the requirements described in those documents while being reasonable, fair, practical and justified on the basis of actual experience or likely consequences". The Code is intended to apply to all members of INTIAA as a condition of membership; and to members of the industry who are not members of INTIAA but register under the Code.

The key provisions are that "Commercial and Public Sites" who are members of INTIAA together with registered industry members must ensure that what INTIAA refers to as 'adult services' "are:

"Commercial and Public Sites who are members of INTIAA or registered industry members must work towards and support the adoption of a system of tagging [based on PICS?] as related to adult services".

Discussions about the content of the Code have included the following:

The original INTIAA draft and subsequent discussions suggest that considerable further effort is needed if a workable Code or Codes is to be achieved. It is also unclear how many other initiatives will emerge.

5. The Responsibilities of IT Services Organisations

5.1 Services

In the current marketplace, there are many new organisations that are reasonably described as 'Internet Services Providers' (ISPs). As the marketplace matures, however, there will be a convergence between the provision of Internet-related services and the many other IT services.

The focus of this document is not on commercial provides of Internet-related or more general services. Rather it addresses the concerns of the many sub-organisational units within larger organisations, referred to in this paper as 'IT Services Groups'.

The function of IT Services Groups is to enable the organisations and individuals they support to perform a range of functions. Although the facilities and services are compromised by a wide variety of factors, that fundamental objective must not be lost sight of.

5.2 Constraints

Factors that influence the manner in which, and the extent to which, IT Services Groups satisfy their clientele's needs include:

5.3 Countervailing Interests

There are, in addition, constraints on the constraints. Of especial relevance to the discussion of censorship is the high standing in Australia of the freedoms of speech, thought and action.

Two countries whose legislatures have acted precipitately in relation to pornographic materials on the Internet are the United States and France. In both cases, the Internet censorship laws that were passed have been struck down by the courts for infringing in excessive ways on rights more fundamental than protection against offensive content.

5.4 Conclusion

In addressing the question of censorship, IT Services Groups need to move reasonably briskly, but must do so deliberately, and take into account not merely the rhetoric of alarmists, but also the interaction between the various interests affected by their services.

6. Implementation Alternatives

It is clear that inappropriate handling of materials that infringe censorship laws is a risk that needs to be confronted by IT Services executives. Among these risks are the possibility of a criminal offence being (quite possibly unwittingly) committed by the organisation or an officer of the organisation, e.g. the IT Services Director; bad public relations for the organisation or an officer of the organisation; shocked, traumatised or harassed staff or students; and shocked, traumatised or harassed co-habitees of staff or students.

The techniques of Risk Analysis / Risk Assessment are well-understood, and readily applicable to the need. Once the risks have been properly understood, conventional Risk Management techniques can be applied. Most of the generic approaches identified in Exhibit 1 are applicable to at least some degree.

Exhibit 1: Risk Management Approaches

Of the wide range of alternatives that are available, some are highly intrusive and very likely to infringe laws and social norms, while others may fall short of the effectiveness that the ABA, on behalf of the conservative elements of Australian society, are presently seeking. Exhibit 2 offers a set of options, listed in approximately decreasing order of degree of intrusiveness.

Exhibit 2: Possible Measures

In addition to these formal measures, other, softer approaches are needed. The concept of 'cyberculture' gets discussed, but all too often as though it were an accidental outcome. In fact, it is possible for IT service providers to encourage cultural maturation, and so assist civilising influences to prevail over tendencies to disorder and unreasonableness.

Study can be undertaken of dysfunctional behaviour on the net (e.g. Clarke 1995a), and the resultant understanding used to develop guidelines on netethiquette, and on rights and responsibilities in cyberspace (e.g. Clarke 1995b). These materials can then be used not only as stagnant postings on the web, but also as sources for instruction and discussion.

Beyond that, there is a need for incident reporting mechanisms, linked to appropriate people such as counsellors, EEO officers and the like. Guidelines on procedures to be followed in handling various contingencies (in order to not only solve problems, but also avoid exacerbating them) are other elements of such a strategy.

7. The Particularities of University IT Services

Universities perform a special role, which has been referred to as "the production, distribution and legitimation of knowledge". As a result, the user-population is a severely biased sample of the overall population. Generally (and particularly among the student population), the IT-using community is intelligent, inquisitive, challenging and experimental.

This combination of institutional role and user characteristics engenders a particularly virile intellectual environment among staff and students alike. This may be uncomfortable, but it is an unavoidable, and, from the viewpoint of society as a whole, absolutely essential, role.

The degree of discomfort experienced by IT Directors will sometimes be acute. When parliaments pass unpopular laws, and governments implement unpopular policies, one of the most likely hosts for resistance activities is universities. Sometimes this will involve university facilities being utilised in arguably illegal, and occasionally clearly illegal activities. On the other hand, some actions by parliaments and governments are illegal too, and the role of individual universities in assisting the community to hold out against unreasonable behaviour may in due course be applauded.

This implies that IT Services executives in universities need to err heavily on the side of freedom of expression, and, at the margin, risk being in breach of censorship provisions. Hence they should be strongly motivated towards the less intrusive options identified in Exhibit 2.

8. Conclusions

IT Services Groups are providers of infrastructure. They facilitate publication / content-provision, but, with exceptions, they do not themselves act as publishers / content providers.

IT Services Groups appear likely to become subject to a regulatory regime in relation to the publication of certain kinds of materials, if they provide their users with connection to the Internet, or any other kind of open network or inter-network.

It is accordingly essential that IT Services executives:

Because (a) I.T. Directors support communities of users who enthusiastically 'push the envelope', and (b) they are highly exposed to public visibility, it is readily arguable that I.T. Directors should be not merely participating in, but even leading, the development of Codes of Conduct and Practice in relation to Internet usage.


Acknowledgements

My thanks to Karl Auer and Tony Blackmore, who provided comments on an early version of this paper, and to the many members of the Internet community who have contributed to the debate about Internet regulation during the last two years, and who have therefore at least indirectly assisted in its preparation. Thanks also to Mark Nearhos of the A.N.U., and Jacqui Brosnan of Gilbert & Tobin who provided me with some valuable sources. Finally, thanks to the organisers and participants at CAUDIT, for their invitation, and the interactions.

Responsibility for the content is, of course, mine alone.


References

ABA (1996) 'Investigation into the Content Of On-Line Services: Report to the Minister for Communications And The Arts', 30 June 1996, at http://www.dca.gov.au/aba/olsrprt.htm

ACS (1996) 'Submission by the Economic. Legal And Social Implications Committee of the Community Affairs Board of the Australian Computer Society Inc. to the Australian Broadcasting Authority', at http://www.rogerclarke.com/II/ABASubmn

ACTIA (1996) 'A.C.T. Internet Association', at http://www.actia.asn.au

AIIA (1996) 'Australian Information Industries Association', at http://acslink.net.au/~tomw/aiia.html

ALRC (1990) 'Report No. 55: Censorship Procedure' Australian Law Reform Commission, Canberra, 30 June 1991

Alston R. (1996) 'Address to the Internet Industry Association of Australia', 5 July 1996, at http://www.dca.gov.au/speeches/intiaa.html

Argy P. (1996) 'Internet Regulation, Australian Style', at http://www.wp.com/PhilipArgy/ABArep.html

Barlow J.P. (1996) 'Thinking Locally, Acting Globally', Time Magazine, 15 January 1996, at http://www.eff.org/pub/Publications/John_Perry_Barlow/think_local_act_global_011596.article

Clarke R.A. (1995a) 'Netethiquette Cases', at http://www.rogerclarke.com/II/Netethiquettecases.html

Clarke R.A. (1995b) 'Information Technology & Cyberspace: Their Impact on Rights and Liberties', at http://www.rogerclarke.com/II/VicCCL.html

Clarke R.A. (1996a) 'Regulating the Net', at http://www.rogerclarke.com/II/Regn.html

Clarke R.A. (1996b) 'PICS - The W3 Platform for Internet Content Selection', at http://www.rogerclarke.com/II/PICS960716.html

Greenleaf G.W. (1996) 'Internet censorship - privacy reprieved' Privacy Law & Policy Reporter, 3,3 (June 1996) 1-4

INTIIA (1996) 'Draft Internet Industry Code of Conduct', 17/2/96, at http://www.intiaa.asn.au/code.htm

Laws (1996) 'The Laws of Australia', Looseleaf Service, Law Book Company, vol. 21, at 21.4 (Civil & Political Rights), Part C (Freedom of Expression), generally at paras. 52-75, pp.50-63, and specifically at Subdivision ii (Legal Restraints on Freedom of Expression), at paras. 66-67, pp.63-65

McKenzie S. (1996) 'A Dozen Reasons Why Schools Should Avoid Filtering', From Now On, 5, 5 (March/April 1996), at http://www.pacificrim.net/~mckenzie/mar96/whynot.html

OFLC (1996) 'Office of Film & Literature Classification', at http://www.oflc.gov.au/

Rheingold H. (1996) 'Citizen Censorship or Government Control?', at http://www.well.com/user/hlr/tomorrow/cyberporntools.html

Sansom G. (1995) 'Illegal and Offensive Content on the Information Highway: A Background Paper', Spectrum, Information Technologies and Telecommunications Sector (SITT), Industry Canada, June 19, 1995, at http://www.nlc-bnc.ca/documents/infopol/canada/cihac009.txt

SPAN (1996) contact details, c/- pbc@online.tmx.com.au (Paul Budde)

van Bakel R. (1996) 'To Surf and Protect' Wired 4.07 (July 1996) pp.90, 92, 94, 96, at http://www.hotwired.com/wired_online/4.07/cyberangels/

Whittle R. (1996) 'Internet censorship, access control and content regulation', at http://www.ozemail.com.au/~firstpr/contreg/index.htm

Willock C. (1995) 'Electronic Documents Policy - Information Resource', at http://www.cse.unsw.edu.au/web/free-expression/fos_sites.html



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