Internet Censorship - An Australian Perspective

(c) Jerry Everard 1998

I want to begin with Plato, who said:

... once a thing is committed to writing it circulates equally among those who understand the subject and those who have no business with it; a writing cannot distinguish between suitable and unsuitable readers. And if it is ill-treated or unfairly abused it always needs its parent to come to its rescue." (Plato: Phaedrus, ca. 370 BC)

It seems we have always had concerns about who reads what, and whether or not they are 'suitable'. Interestingly, the same paternalistic remedies are proposed in the form of what everyone hopes will be benevolent censorship. What is left out in this formulation is the question of who authorises what is suitable or not suitable in terms of a readership. Who is best qualified to interpret or to speak for a community, and what happens when writing from a community in which a form of writing is deemed acceptable is transferred to a community space where it is not deemed acceptable. This, it seems to me is the dilemma of the internet.

We have, on the one hand the legacy of Plato, who argued against the dangers of information technology in the form of writing, as against what Bakhtin might term the Carnival of internet culture, which proposes that:

* Information wants to be free
* access should always be unlimited and total
* Always yield to the hands-on imperative
* Mistrust authority
* Do it yourself
* Fight the power
* Feed the noise back into the system
* Surf the edge
(Gareth Banwyn, in Mondo 2000)

Clearly there is a divergence of interests, that are mutually exclusive portrayed in these two philosophical positions.

In the course of this Seminar I want to pull out some of the rhetorical strategies used in the internet censorship debate, both by Government who carries the role of enshrining in legislation the mores of Australian society, and by those who would problematise overly simplistic and heavy-handed interpretations of what comprises that society.

I want to focus on two quite similar approaches, undertaken by State governments to the issue of internet censorship - one successful, the other unsuccessful. These are the WA Censorship Act (1996) and the draft NSW Censorship Bill (rejected 1996). Rather than focusing on obscure legal arguments, I want rather to focus on how these two pieces of legislation construct the internet user, and some assumptions made about the nature of the technologies involved. In the process, I want to tease out something of the way governments perceive themselves and their role in the community.

In Australia, the internet censorship debate concerns issues of pornographic material being 'made available' to minors. For the purposes of the NSW draft Bill this would include:
* material that would be refused classification (RC)
* material that would be unsuitable for minors of any age, such as film classified (X) or (R)
* a publication that would be classified 1 or 2 (ie including explicit sexual or sexually related material) and;
* material unsuitable for minors under 15, ie classified (MA+)

NSW State Attorney General, Mr Jeff shaw QC, MLC, stated that the measures in the proposed legislation were designed to : "protect children and others from intentionally or accidentally accessing abhorrent and objectionable material."

Children and others. The children are defined in terms of those under 15, while the 'others' are not. Under the draft Bill these Others would be 'protected' from intentionally accessing material deemed abhorrent and objectionable, presumably by some form of board of censors.

The draft Bill covered material carried on all on-line services, such as the internet, bulletin boards and email.

The draft Bill specifically targeted content providers, internet service providers and users.

I shall return to these last two aspects later, but first let us consider who is being protected from what, and by whom.

Who?
The protected user is construed as at least under 15 years of age. They are minors. Interestingly, however, the number of minors with their own internet accounts is statistically minute. So these minors are presumably those accessing this material via their parent's or school accounts. Indeed the number of schools in Australia with internet accounts, let alone those which allow unfettered student access to such accounts is equally minute at the present time. So it is safe to say that most under 15 year olds are accessing the internet from parent's accounts in their own homes.

The censorship is therefore principally directed at adult accounts. Moreover, it suggests that adults should not be responsible are not capable of taking responsibility for their children's actions - unlike the way parents have for a number of millennia. I am not passing judgement here over whether or not parents should be responsible for their children's activities, merely that the draft Bill assumes they will not continue to act as responsible parents.

If legislators wished to target the end-user in terms of material downloaded onto the user's hard disk, there are problems too, insofar as the act of clicking on a link is sufficient to initiate the process of downloading the web page, for example, for viewing. Without going into the difficulties of ftp files which need to be downloaded in their entirety to be read with an off-line program, there would remain the issue of 'cookie' files. These are files created 'so that if a person browsing the web wanted to return to a previously accessed page, they can retrieve it from a cache on the user's own hard disk.

Let me clarify this. If someone had inadvertently downloaded some pornographic material in the course of browsing, that material would reside for some time on the user's hard disk in the web-browser's cache. You see, to conserve bandwidth - the amount of data actually sloshing through the telephone lines - many web browsers, such as Netscape, actually save the pages you have visited in a work-space called a cache. These are accessed when you press the 'back' button so you don't have to wait for the whole page to download again. The browser keeps a catalogue of the pages in the cache by creating what is called a cache log file.

Perhaps one way around the issue of users having illegal/objectionable material on their hard disk would be to eliminate the function of a web browser which creates the cache files. This would lead to a considerable increase in traffic load on an already stressed telecommunications system, because each return would result in a completely new download of the page. This can also be time consuming where pages use large graphics.

So that is the user end of the equation. Let me turn now to the material being censored.

Under the proposed NSW draft Bill the material being censored would be that which attracts or would attract certain classifications by the Australian Censorship Board. There is a problem here, insofar as very few people actually know the criteria by which material is judged pornographic - indeed that is precisely why the Board exists.

Unfortunately the whole process of exchanging email would slow down considerably if each packet of data, each piece of email, each net page (wherever produced in the world) and each online discussion group had to pass through the Board of Censors before being forwarded to the internet users with the appropriate classification attached.

Potentially, it is possible to use software filters to screen out documents containing particular key words, or internet sites known to contain offensive material, but there are problems with that too. In late 1995 Germany lodged a complaint against US internet service provider Compuserv. Lacking the means to screen by country, Compuserv promptly blocked access worldwide to sites containing words such as 'breast', 'sex', 'intercourse' and so on - the usual suspects.

The immediate effect was to deny worldwide access to breast cancer support groups, sexually transmitted diseases information services, family planning advice services, gay and lesbian information services and an obscure church sexton's discussion list. It was two months before Compuserv could isolate Germany and reopen these sites to the rest of the world. They have subsequently refined their keyword filters so that these other services have returned even in Germany.

Meanwhile, pornographic sites merely developed codenames that were not picked up by the filters and continued business as usual. 'The internet', as one wit recently put it, 'treats censorship as damage and routes around it.'

The NSW draft Bill covered material carried on all online services -internet, bulletin boards and email.

The legislation would treat private email in the same category as prime time broadcast television. It would be the equivalent of having to provide an Office of Board of Censors rating for every personal telephone conversation, or every conversation held in a cafe or on a street corner.

Clearly in these 'physical life' examples there is a good deal of self-censorship, otherwise known as 'tact' that comes in to play, out of knowledge of the speech situation, and of one's 'reading' of the likely response from those immediately involved.

The internet does reflect the broader community in almost every way. It can be useful to consider what would happen if a city were described in the same terms that are commonly used by the print and electronic media to describe the internet. After all, if the proposed legislation reflects community values, then perhaps it should stand the test of being applied to 'real life'.

In March 1996 a NSW MP renewed calls for controls on internet access after a young boy mangled his hand on a home-made bomb constructed from information downloaded from the net. The device was constructed from a soda siphon and a firework. The MP said that a homemade bomb guide called the Terrorist's Handbook was accessible to young children who could switch on to the internet.

There are two aspects to this that warrant further discussion. Firstly, it is interesting that there were no calls to control the sale of soda syphons or fireworks. Moreover, having read the terrorist's handbook, I note that on the one hand there is nothing there that is not also available in print, and secondly, for the really big bangs, you would need at least an upper high school understanding of chemistry and physics to be able to concoct an explosive from the recipes.

Similar concerns were raised after the Tokyo sarin nerve gas incident two years ago (1995). Interestingly, my local public library had the recipe in a first year university textbook on biochemistry.

On the arguments presented by the proponents of internet censorship, if availability is indeed an issue, perhaps we should ban the widespread distribution of water, because a child may drown in the bath. Moreover, to take the internet analogy further, perhaps we should hold the water distribution company responsible for misuse of its water supply, and encourage them to monitor who has access to its water at any given time.

If knowledge is the issue, then perhaps we need a set of warnings to be issued to parents of any children likely to study, say, physics and chemistry, that by learning these subjects they too will be able to make bombs.

Clearly, then there is some absurdity creeping into the legislative process if it looks silly applied to other real-life situations.

If we really believed some of the more sensational media stories about about the internet, and then applied them to the wider society in which the internet is situated both culturally and physically, then perhaps we should consider cities to contain nothing but shops selling pornography, graffiti using obscene language, and libraries full of pornographic and bomb recipe books?

The NSW draft Bill also sought to fine or jail for 12 months people caught advertising pornographic material in the Internet. But you know, hardly an evening goes by on radio or television without several advertisements for Fantasy Lane in Fyshwick, or classified ads in the daily newspapers, which advertise pornographic material. So there is perhaps an issue of consistency to be raised in this context.

I would like to turn now to the issue of content providers and internet service providers as targets of internet censorship legislation within Australia.

Application of the proposed and actual laws to content providers can only be done at best on a national basis - indeed since we are basically discussing State legislation, the laws would actually only be applicable to content providers in whose State the legislation applies.

But even if the Commonwealth government should enact similar legislation there would be problems. With at least 95 percent of internet content providers being outside Australia, actual policing of the internet in terms of content providers would present considerable difficulties in terms of jurisdiction. And to a large extent this is the heart of the problem facing anyone trying to apply censorship to this part of the cycle.

The other aspect of this is that content providers are already subject to laws currently applicable in relation to publications, or, indeed in relation to the use of telecommunications equipment, which is, perhaps more to the point. The internet is, after all, physically carried by telecommunications system's, rather than broadcast systems.

Finally I want to turn to the issue of censorship at the point of distribution - the internet service provider.

Under the Western Australian Censorship Act (1996) a computer service includes, inter alia, "... the transmission of computer data from one computer to another, and the transmission of computer data ... from a computer to a terminal device".

Under the Act, a person can be charged with using a computer service to 'make restricted material available to a minor. Thus internet service providers could be held accountable on the basis of having made such material available.

While the internet service provider may have recourse to the defence that such 'transmission' (to use the legal term), was done unknowingly, the onus would rest with the service provider to prove that they were unknowing in their distribution of such material, or that they had complied with a code of practice. With the Act in force now since the First of November 1996, no such code of practice has yet been devised.

In Western Australia, the Censorship Act provides that police are not required to have a warrant to search the premises of internet service providers, including all records, logs, private email and anything else on the service provider's system.

This would seem inconsistent with the Commonwealth Telecommunications (interception) Act (1979), which provides that only officers of State or Federal police forces with a warrant from the Attorney General, officers of Australian Security Intelligence Organisation holding a warrant issued by the Director General of Security under the provisions of the ASIO Act (1979), - only these people may intercept a communication carried by a telecommunications system.

Such interception is defined in terms of listening to or recording by any means a communication passing over the telecommunications system without the knowledge of the person making that communication.

And to be perfectly clear on this point, the Telecommunications (Interception) Act 1979 defines a communication as:

any conversation or message whether:
a) in the form of:
i) speech, music or other sounds;
ii) data;
iii) text;
iv) visual images, whether or not animated; or
v) signals; or

b) in any other form or in any combination of forms.

Clearly electronic mail falls into this category, as would anything carried by an internet service provider.

Thus the WA Censorship Act (1996) would seem to be directly inconsistent with the Commonwealth Telecommunications (interception) Act 1979. I have little doubt that such inconsistencies would lead to difficulties in enforcing any action arising from the WA Act. This Act is merely incompatible with the Commonwealth Act, and so would seem on the face of it merely unenforceable. The same cannot be said for the NSW draft Bill.

I have dwelt here for some little time on the provisions of the Commonwealth Telecommunications (interception) Act, because it has particular bearing on the NSW draft Bill.

I want to keep in mind too, that this legislation was put forward as model legislation designed so that legislation throughout Australia might follow it's pattern.

Under the provisions of the proposed NSW Bill, internet service providers could be held accountable for any material that passes through their system of an 'objectionable' nature. The relevant provision states:

"An online service provider must not permit objectionable material to be available for access or retrieval by users of the service"

One of the defences allowed to internet service providers is that they have taken steps to assure themselves that objectionable material is not being passed through their system. This includes specifically (and I quote):

"procedures (such as random checks of material available through the online service) conducted by the on-line service provider to monitor material being transmitted or that may be accessed on the on-line system."

This goes beyond the WA legislation insofar as it specifically requires online service providers to break a Commonwealth law in order to comply with the State law - or that would have been it's effect if the Bill had been passed in NSW.

So, what are we saying in all this?

* Firstly, the legislation, both as it stands now, and as has been proposed, is unworkable in its present form;

* Secondly, it targets content providers, service providers and users in ways that show ignorance of the technology and;

* Thirdly, the legislation that has been proposed is at best inconsistent, and at worst is in complete conflict with existing Commonwealth and international laws. In the extreme case it requires people to break a Commonwealth law to comply with a State law.

Let me turn now to some broader issues to provide a context for all this.

At a philosophical level, internet censorship in Australia - indeed worldwide - is about boundarymaking and subjectivity.

It is about construing the sovereign state as Subject, as against the Other of the international community of States. It commits the fallacy of the 'domestic analogy' - domestic order as against international anarchy and chaos.

It also operates at the domestic level by construing the State as Self - the SUBJECT, and the domestic individual as ABJECT (to use Kristeva's term).

And there are specific ways in which the legislation seeks to do so.

The legislation invokes myths of childhood innocence and suggests that the whole internet should be like a child's playground.

The reality of the internet is, however, that it reflects greater society - in all its aspects. I want to suggest here that what is needed, above all is education, rather than contradictory, and in many ways redundant legislation - remember, that what is illegal in physical life is still illegal in cyberspace, and still subject to current legislation.

We need education, not merely of parents to say 'don't let your kids loose on the internet', but rather to educate the children about stranger danger in cyberspace - we already do that as a society, in discussions about the seemingly nice guy with the lollies and the large car - those same guys are out there on the net, sometimes masquerading as other kids. If they want to meet in real life - let them. But accompany them, just as you would if they were meeting a pen pal.

Of course the police are there in cyberspace too, also masquerading as kids - paedophilia is a crime in most advanced countries, and it is a crime in Australia. Police the world over are learning the tricks used by criminals, and meeting them at their own game. Most times internet messages leave trails and can be traced back to their origin. Even anonymiser services have been known to cooperate with police in criminal investigations.

There is pornography on the net, but not a lot in comparison with all the other information that is there. And there is good reason for that. Pornography uses graphic images - these use a lot of bandwidth - hundreds of times more than text. Most people have relatively slow modems in their homes, so images take a long time to download. Images also take up a LOT of storage space, so large pornographic databases are few and far between. Moreover, at best the images, when downloaded and viewed on the screen are displayed at 75 dots per inch - about the same resolution as a newspaper, or a dot-matrix printer. The local news stand has glossy magazines full of images printed at 600-1200 dots per inch.

There is software available for free for adults to restrict access to at least the main pornographic sites - the others take a lot of searching for, and even then access is via credit card - If we are really so concerned about soft porn images we perhaps first need to tackle billboard advertising and magazine stands, as these are more readily available and at considerably higher resolution than anything you will find on the net.

When it comes down to it, the internet is about communication. As a result of internet and the technical difficulties of censorship, it is increasingly difficult for countries to get away with systematic human rights abuses.

Burma, Peru, Chile, Argentina, China, Vietnam - even Australia, have all had human rights abuses publicised as a result of the internet.

There are counselling services on the internet - I've already mentioned breast cancer support groups, there are grief counselling groups, medical information groups - new anti-AIDS drugs are being documented and discussed on the internet.

Medical advice is being provided at a distance - recent examples include babies born in Outback Stations, child illnesses have been diagnosed via cuseeme on the internet. Internet technologies have allowed doctors to listen to heartbeats, exchange charts with other doctors to get advice on specialist areas.

In Africa, medical and agricultural information is being provided via internet to remote communities as part of UN aid projects. Isolated people around the world are finding common interest communities.

There are issues of civil liberties which remain to be addressed, and different countries have different views on what constitutes fair intrusiveness.

At the end of the day, I think most advanced countries are fairly sensible when it comes to issues of censorship. The Australian Government, for example seems not to be concerned about whether or not you say something rude in your email, rather at stake is the issue of when does something on the internet constitute a danger to national security?

When does the internet threaten the existence of the State? When does it threaten what it means to be a free person in Australian society? Thinking this through, it becomes plain that for Australia, the attempts at legislation, however flawed, have at least been aimed at providing the State with an ability to act if the need should occur - for example to be able to charge someone with an offence if they incite racial vilification, or if they want to solicit children for sex.

In that sense, it matters less that the technology cannot be effectively censored, than that the means exists to act in the event of criminal activity.

In this it is important to place media portrayals of the internet in perspective. There are a small percentage of criminals on the internet. So too, there are a small percentage of criminals in Canberra, or Sydney or anywhere else in Australia. It does not stop us allowing our children to play in parks, or go shopping - even in newsagents. But as responsible parents it would seem just as important to learn about the internet, about the traps and pitfalls as well as the benefits, and to educate our children about how to deal with them.

This does not require state censorship, although a good 'stranger danger' campaign in the schools could go a long way to reducing what dangers there are.

In this paper I have not sought to answer the rights or wrongs of censorship, rather my intention has been to explore some of the issues arising out of the way Australia has tackled the internet censorship issue.

The legislation enacted in WA and in Victoria seems flawed. The NSW proposed internet censorship Bill was thrown out as completely unworkable. But the result has been that internet censorship has been placed on the agenda for Australia. People are out there discussing the issue, even if in often misinformed ways. In my view, before we enact national legislation on internet censorship, we need as a country to be clear about what it is we want out of the legislation. We need to think in terms of what does it set out to achieve?

A good place to start would be to have the process informed by three things:

* a realistic assessments of the threats;
* a thorough understanding of the nature of the technology; and
* a realistic assessment of what is achievable

And that would seem to be a good place for me to finish.