John Perry Barlow of the Electronic Frontiers Foundation warned last year that we were in danger of getting "government by the clueless, over a place they've never been, using means they don't possess". The ACS shares his fear.
The Australian Computer Society Inc (ACS) believes that most adult Australians wish to be able to read, hear and see whatever they wish, totally unimpeded. Within that broad philosophy some feel that the interests of minors justify some controls or regulatory activity in relation to content that is likely to harm them. However, the ACS is concerned to ensure that any controls be carefully designed so that accommodation of the exception does not warp the primary principle. Although many Australians might agree with Office of Film & Literature Classification (OFLC) principles, the ACS does not accept that those principles require the regulatory approach that has been mooted for Australia.
By and large the ABA Issues Paper reflects the flavour that developed during the preceding events (which involved the Department of Communications and the Arts, the Attorney-General's Department and a Senate Committee). It envisages a code of conduct developed by industry, with relevant regulatory and policy agencies looking over industry's shoulder, and advocacy groups participating in the process (rather than merely sitting on the outside looking in).
Rather than being a mere voluntary or 'self-regulated' code, it would be given teeth: the Commonwealth Parliament would enact legislation which renders illegal behaviour which did not conform with the code.
The ABA failed to do something vital that we understood they had undertaken to do. It read the Consultation Paper that arose from previous work by the other two agencies. But page 8 admits that it did not read the submissions to those agencies, nor those to the Senate Standing Committee on Community Standards, nor even, it appears, the materials which accompanied the public event that Committee ran. If more of that key material had been accessed and absorbed, important weaknesses in the Issues Paper may have been avoided.
The ACS recommends that the ABA consider additional relevant material, including:
* Hansard, Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies, Canberra, 4 April 1995, c. 200 pp. plus copies of overheads and materials provided on the day (presenters included Auer, Clarke, Huston, Slater, Wakeley and Worthington), the Hansard of the second public hearing in November 1995 in Sydney and the Committee's report released in December 1995.
* Existing world wide web materials, including:
The ABA appears still to lack a basic understanding of the wide range of technologies and functionality that is available "on-line". In particular:
If the ABA is to carry out its investigation seriously it must make people comfortable that its understanding about the technologies and services proposed to be regulated are not materially inadequate. Perhaps engaging experienced consultancy services would suffice for the balance of the investigation but if the ABA is to have any ongoing regulatory role (which the ACS suggests is inappropriate) it must very substantially upgrade its technical competence in the subject areas.
The Issues Paper does not seem adequately to address the question of cultural differences within Australia. This issue has become very apparent in the United States, where a clash between the values of urban California and country Tennessee was central to a recent case in which the appeals court in Tennessee affirmed the principle that material in a global system can be subject to the standards of each local jurisdiction in which it can be accessed. Most US commentators regard the result as bizarre and the ACS would be concerned if Australian laws were to reflect a similarly unrealistic policy.
Whilst generally supportive of the ABA's preliminary preference for a self-regulatory mechanism, it is important for ultimate community acceptance of that approach that other harsher or more permissive options be rigorously analysed so that the self regulatory option can be demonstrated to be superior.
The following parts of this submission respond specifically to the italicised invitations to comment on the issues raised in the ABA's December 1995 Issues paper. In broad terms the thrust of our comments are directed at ensuring a more precise delineation of the area that has been proposed to be subject to legislative intervention (although opposing such intervention), a careful articulation of the regulatory principles and, most importantly, an approach that will not leave Australia in danger of being regarded by global information service providers as a regime in which compliance costs exceed the benefit of the presence in the jurisdiction.
We disagree with the proposed `inclusive' definition. Content provider should not include those who have not authored the material concerned unless that authorship is unknown and cannot reasonably be ascertained, in which case the first publisher might be treated as the creator. In principle, the Content Provider should be confined to the person that first created the material concerned. Laws that deal with content of on-line services differently from content of any other document or medium are fundamentally flawed. If Parliament wishes to suppress the dissemination of particular types of material, then that should be done by a law of general application that is dissemination-mechanism independent
The ACS does not agree with the imposition of liability on information disseminators by the device of deeming them to be a Content provider when they have not created the substantive content concerned.
The ACS believes that carriers should not be responsible in that capacity for the content of what they carry. A burden analogous to making Telstra responsible for preventing swearing in telephone conversations is both unreasonable and unrealistic.
Although access providers in some circumstances may be able to take steps to control objectionable material of which they become aware, the ACS is against requiring them to do so except as a last resort. A burden analogous to making the licensing authorities liable for keeping poor drivers off the road is both unreasonable and unrealistic.
The ACS agrees that Users should have a liability for their conduct if it contravenes established law. But that liability should be formulated by reference to its inherent attributes rather than by references to specific mechanisms by which it is carried out. For instance, Parliament has created a crime of murder. Murder by gun, murder by knife, murder by suffocation are not dealt with as independent crimes. Thus any regulation should identify the essential elements of the conduct sought to be restrained and impose that restraint on those engaging in the conduct rather than on those whose businesses may innocently be `involved'. For instance, the making of threats to the life of a person is illegal regardless of the means of communication of the threat. See also our comments on section 3.5 below.
Save where Constitutional law technicalities require federal regulation to be confined, for instance, to conduct making use of postal, telegraphic and telephonic services, the ACS favours generic principled legislation that is technology independent.
Of the 8 bullet pointed issues listed on pages 18 and 19 of the Issues Paper, those of privacy, consumer interests and gender equality appear to be beyond the scope of the ABA's brief. Nevertheless the ACS believes that laws which otherwise implement sound principles in a technology independent way might properly deal with those issues.
The ACS regards the results of the OFLC's informal search as extremely important, not so much as a rigorous scientifically designed study which it plainly was not, but as illustrative of the critical difference between the operation and nature of on-line services in contrast to broadcasting and television services of the kind with which the ABA is more likely to be familiar. In particular, in contrast to those latter services, a user of on-line services sees only filenames, subject descriptions or hyperlinks. A conscious deliberate decision must be exercised before further underlying content is viewable. This is a critical difference because the act of proceeding to view the content is an act capable of regulation and is an act over which content providers, carriers and on-line service providers cannot be expected to exercise control. If viewing and downloading objectionable material is to be prohibited the prohibition should be directed at the viewer/downloader.
Consistently with notions of complicity such as being an accessory or an accomplice, knowing involvement in any such contravention might also be the subject of justifiable regulation. But any liability must be carefully and precisely described. A broad brush liability with the availability of certain defences such as lack of knowledge is not an acceptable equivalent because on-line service providers should not have to conduct their businesses on the basis of being almost continually prima facie in breach of the law albeit with the ability to prove a defence.
For the most part the ACS believes that the degree of community concern about the availability of objectionable material to minors through on-line services is exaggerated. Furthermore, if there are people who find some of the material available through on-line services distasteful, the ACS sees it as open to those people not to view such material. And if they wish their children to find it equally distasteful, they should bring their children up with a set of standards that will achieve that result. It is erroneous to believe that restricting minors' access to objectionable material will result in their finding it to be objectionable.
The principles which ACS accepts are:
The objectives which ACS endorses are:
The three main options are:
The ACS believes that complete self-regulation would be preferable. However, that is not a realistic option. We already have one State with criminal offences and two about to introduce them. In addition, all indications from relevant censorship officers in other jurisdictions are that the Standing Committee of Attorneys-General has decided in principle to introduce criminal offences. We understand that the NSW Parliamentary Counsel has been asked to draft model provisions to be adopted by all the States based on those in the DOCA/Attorney-General's June 1995 consultation paper and modified to take into account some of the submissions received in response to that paper.
The ACS supports industry self-regulation and urges that any offences (a) exclude service providers who comply with industry practice and (b) recognise the different functionalities of online services (eg. don't regulate email in the same way as public BBSs). The ACS proposes, as part of self-regulation, the establishment of an "Online Standards Forum" with members drawn from service providers, content providers, users and other interested parties. The Forum would have a key role in developing and monitoring any code of practice and would appoint an investigator/arbitrator to handle complaints not resolved by the service provider/content provider. Members of the Forum would have to commit themselves to implement the decision of the investigator/arbitrator. To adopt a governmental analogy, the Forum would have legislative/executive type powers and the investigator/arbitrator would have judicial powers. The model is similar to the Telephone Information Services Standards Council ("TISSC") which deals with phone sex services. This was the model suggested by the Senate Standing Committee On Community Standards in its recent report on regulation of online services.
A licensing regime would be the least desirable option. It could take two forms:
Presently, the ABA has no role to play - the definition of a "broadcasting service" in the Broadcasting Services Act excludes services providing programs on demand on a point-to-point basis. There may be a number of unintended consequences of widening the scope of this basic definition to encompass online services. Further, it would raise issues such as foreign ownership and cross-media restrictions. The ACS believes that any such expansion of the ABA's role will stifle an important and emerging industry and would be out of step with international developments.
All online service providers are presently licensed under the Telecommunications Act - they provide what is described as "eligible services" in the legislation and are subject to a class licence. The conditions of the licence are general to all online service providers and relevantly require that the service provider "do its best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth, a State or a Territory" and that it give such help to law enforcement authorities as is reasonably necessary to enforce criminal laws.
The United States last week enacted the Communications Decency Act of 1996 (technically Title V of the Telecommunications Act 1995, which became law on 8 February 1996. This submission does not deal with other parts of the TA, many of which are abhorrent to principles of freedom of speech to which most Australians subscribe). Particularly noteworthy in the context of the present submission are the following provisions (extracted in Appendix A to this submission) to which attention is drawn:
Sec. 502 inserts provisions with the following desirable elements:
a) The primary offence is defined to require "knowingly" making creating or soliciting, and then knowingly initiating the transmission of, material which is objectionable "with intent to annoy, abuse, threaten or harass another person" or "knowing that the recipient ... is under 18 years of age". This can be contrasted with presently proposed Australian laws which do not sufficiently have wilfulness as their essential ingredient but instead create a prima facie offence with "inadvertence" or lack of knowledge defences. The US approach is vastly superior and does not inappropriately burden carriers and other service providers. The clear and unambiguous focus is quite properly on the individual that creates material, their purpose and the material's content.
b) The service provider offence still requires "knowingly permits" the facility to be used "with the intent that it be used for such activity". Again, no prima facie offence by the service provider with the availability of a defence. The ACS strongly recommends the inclusion of strong, clear "intent" thresholds before service providers can even be considered to have contravened any provisions.
c) Importantly also the legislation carefully excludes liability on the part of communications intermediaries that own or control systems other than the system on which offending material was created, and employers except where they have plainly authorised or ratified the otherwise impugned conduct
d) Section 223(1)(e)(6) contemplates that the Federal Communications Commission may "describe" measures which are reasonable, effective and appropriate to restrict access to prohibited communications but then expressly notes that the section does not authorise the Commission to enforce, approve, or sanction the use or failure to use such measures, nor endorse specific products. The use of such measures is simply to be admitted as evidence of good faith efforts for the purposes of those defences in which good faith effort to restrict access is an additional defence.
Nothing in these comments should be taken to support the enactment of the US provisions per se. However, the ACS takes the pragmatic approach that if, as appears likely, governments are determined to regulate the Internet, legislation of the kind enacted in the United States reflects a better balancing of liability allocation than does any existing or proposed Australian legislation.
It may be necessary for a code of practice to distinguish between services which should be subject to a code and services which should not. One way in which this distinction may be made is by distinguishing between services which are private in nature and those containing material which is available to the public. It may be more appropriate for material which is essentially available to members of the public, such as a site on the World Wide Web or an on-line computer game, to be subject to a code of practice than material which is essentially made available to one or a small group of individuals, such as email messages or listservers to which users have to subscribe (and can easily unsubscribe). Another basis of distinction could be between those materials which are sent unsolicited (such as 'junk' email) and those materials such as FTP and HTTP and USENET that have to be consciously (and often conscientiously) downloaded.
In terms of balance, the ACS believes that preservation of the privacy and integrity of electronic mail communications should override any mechanism which could tempt service providers into breaching message integrity by the use of text filters or any other device that ill conceived defence provisions may require service providers to adopt.
The ACS favours a single comprehensive code although that code in its application may impact differently upon different industry participants.
The ACS agrees that the following matters might properly be included:
The ACS, as noted earlier, favours the creation of an industry body to whom complaints could be made, somewhat akin to FACTS, and compliance with whose rulings should be a complete defence to any prosecution.
The ACS does not believe that an Australia-only classification system is viable. International agreement is essential. Where that can be obtained, it may be appropriate to require content creators to tag their material with an appropriate classification, and to make it an offence to fail to tag or to wilfully falsely tag material. Carriers and service providers should have no liability for content carrying the tag assigned by the creator unless the industry self-regulatory body has made a finding that the tag is false and that the content is objectionable, and the carrier or service provider has failed after a reasonable opportunity to take some appropriate steps to suspend access or to modify the tag to correctly classify the material.
Compliance with a code of practice can be enforced by legislative mechanisms, such as those established under the Broadcasting Services Act and the Telecommunications Act 1991. However, it also possible to have a compliance regime that is based upon voluntary agreement between industry participants and which establishes remedies for breaches of the code. Where the industry agrees to be bound by a code, it may also agree to be bound by any sanctions for failure to comply with a code. As noted above, the ACS favours a TISSC style of self regulation.
The ACS supports the ABA's proposal for a national forum to identify stakeholders and to bring them together to discuss the issues arising in the on-line environment. A key goal of such a forum would be the establishment of an effective consultative framework for industry participants and the public.
The submissions received by the Department of Communications and the Arts and the Attorney-General's Department, in response to the June 1995 consultation paper, generally supported the establishment of an independent complaints handling body. The matters which an independent complaints handling body responsible for on-line services might address include:
The ACS would be against creation of another statutory body and against conferring additional roles on the ABA or any other existing statutory authority. An ongoing review of the code of practice by our suggested Online Standards Forum would be our preferred approach.
TISSC is the ACS' preferred model for the reason that it comprises true self-regulation. It is also the model preferred by the Senate Standing Committee On Community Standards.
A combination of TISSC/accreditation may be possible. Accreditation could be by way of the Online Standards Forum. Service providers would be under an incentive to join that body and be accredited because of the criminal offence provisions.
The ACS believes it is for parents and schools to implement any technical solutions they require to limit access to objectionable material. Whilst being against the imposition of any liability on service providers for a failure to do so, the Good Samaritan provisions in section 509 of the USA legislation, extracted in Appendix A to this submission are commended as an intelligent approach. Of course there is also an educational role that can be played by the media and others in the industry regarding the existence of these kinds of solutions.
Although online services have a key role to play in education, the ACS does not see a role for the industry regulator in this activity. Schools and parents can decide what material to make available on facilities which they provide. Indeed there may need to be some exception created to allow for tertiary students to study the operation of the regulatory mechanisms by having access to material that might otherwise be unavailable.
The ACS is against any requirement that Australian access providers with international access filter out data packets from addresses on some refused access list. Recent experiences with requests to Compuserve by German authorities make clear that the hope of such control is forlorn, and that the damage done by the attempt is considerable. In general terms the ACS fears that in order to comply with such a request, these access providers would need to program their equipment, such as routers, to check the source address in each data packet against the addresses on the refused access list. This is potentially so burdensome that global operators could elect to abandon service to Australia. Similarly, if any newsgroups were refused classification, operators of servers receiving newsfeeds would have to omit these newsgroups from their databases. To be effective, a refused access list would need to be updated on the basis of complaints received and investigated by a complaints handling body, and possibly as the result of independent monitoring. Mechanisms would also be needed for reinstating sites and newsgroups to cater for situations where offending materials have been subsequently removed.
Unless significant international agreement can be obtained so that Australia does not suffer any competitive disadvantage the ACS is strongly against the imposition of such requirements on service providers. Laws which make it an offence for an end user to knowingly download material tagged as objectionable and the availability of mechanisms for parents and schools to inhibit access to such material should be sufficient. Furthermore, the routing solution is very primitive - most routers are manually configured, so alterations to the refused access list would require physical adjustments to the network. Performance and data integrity could also be affected.
The ACS believes these matters should be left to the market and general trade and consumer protection regulation. There is nothing about online services that differentiate it from telephone or mail order trading and therefore no technology specific regulation should be adopted. Where direct mail operators already have codes of practice, those codes of practice should apply regardless of the communications mechanism chosen.
The ACS is supportive of all moves to encourage and nurture the creation of Australian content on on-line services. However, the ACS does not favour the imposition of content quotas or any other mandatory content requirements for on-line services. If Australia is to develop world class content the best incentive is for it to do so in an environment where the best content is commercially successful on its merits. Government initiatives in funding development of multimedia material and creation of online content are certainly supported by ACS but quota systems that are quality independent are not.
As noted above, international agreement on classification issues is needed to ensure that Australia is neither cut off from the rest of the world nor a safe haven for material that other countries have banned. Australia has demonstrated in the past an ability to influence global standards and policy formation disproportionately to its population. Australia has a respected position on the world scene in technology matters and should be taking an active role in seeking to achieve global uniformity of policy formation and implementation.
This submission has been prepared for the Australian Computer Society by Philip N Argy, Chairman of its Community Affairs Board's Economic, Legal and Social Implications Committee, in consultation with the President Tom Worthington, Director of the Community Affairs Board Andrew Freeman, and Committee-member Roger Clarke.
Mr Argy can be reached at email@example.com or firstname.lastname@example.org
Go to the ACS's 'Internet Regulation' page, including links to the ABA Issues Paper and many other submissions to the ABA.
Go to the Australian Computer Society's home-page.
Go to Roger Clarke's Home Page.
Go to the contents-page for this segment of Roger's Pages.
Send an email to Roger
Original Version: 19 February 1996
Last Amended: 20 March 1996
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