Internet Censorship - Who is Caught in the Act?

(c) Jerry Everard 2000


"What matter who speaks?" Under what circumstances does Legislation become Literary Phenomena? This paper will compare legislative approaches towards internet censorship with a particular focus on the Australian Broadcasting Services (Online) Act 1999. The paper will examine the State's constitution of the subject; the freedom-of-speech community's constitution of the State; and the operation of conflicting discourses of power. Drawing on contemporary theoretical frameworks, this paper will show how the state is attempting to apply discourses of virginity and courtship by imposing a dance of the seven veils. The paper argues that discourses of desire and passion underpin much of the rhetoric of prohibition - on both sides. To paraphrase Freud: "What does the State want?" The paper argues that the process of the State's reinvagination of the domestic polity serves to articulate three axes of boundarymaking essential to the formation of identity between: the individual; the state; and the international community. Moreover, the nature of cyberspace ensures that the Act articulates a declarative, rather than operational function: Lots of talk and very little action.

Internet Censorship - Who is Caught in the Act?

You know, governance at the nation-state level is a kind of bizarre thing. I've worked in this area for the last seven years and the degree of schizophrenia articulated by Deleuze and Guattari is not a patch on that articulated by the nation-state. Perhaps what is most bizarre is that there's good reason for it to be that way. The nation-state is a liminal moment of identity making. It is the highest level at which the individual is subject to sanction, and it is, with very few exceptions, the highest level of identity to which an individual subscribes, and which draws its authority from the individuals it contains. So the nation-state is schizophrenic. The fox, in this case, is literally in charge of the chickens.

And there's a word for that and it's called 'democracy'. You see, the government gets to tell you what to do, but only to the limits of what you allow it to tell you what to do. At least that's the theory anyhow. So the fox is in charge of the chickens. And in a way it forms a kind of neat metaphor for nation-states. You see, foxes in mythology are sly, cunning creatures so they have an eye, not only on their own chickens, but also on all the other chickens guarded by all the other foxes, and they call that international politics, or globalisation. At one level, this is a story about death - you know, foxes like to eat chickens. And for the system to be stable, the chickens have to procreate at a rate that would sustain the fox. So it's also a story about sex. Sex and death are probably the two greatest taboos of our society in one guise or another, just as they are literally about life and death. To that extent, then, one of the themes in this paper is the diptych of sex and death.

And while we are on the representation of myth in the form of the nation-state seen as cultural construct, I want to look at the fox as construed by the chickens and the chickens as construed by the fox. Except, in this case we are actually talking about people, both at the level of the domestic polity and at the level of government. But that's the thing about myths isn't it? Sometimes the stories we tell of each other miss the mark in terms of how we perceive the Other in relation to oneself. So the other image I want to weave through this paper is the diptych construed by the freedom of speech community's view of the government, and the government's view of the domestic polity.

The third image is about the nature of the Internet itself - is it a broadcast system? Or a cargo network? One of the documents I shall be looking at reveals the underlying tension between these two definitions of the Internet.

The primary document that is causing all this fuss is the Broadcasting Services Amendment (Online Services) Act 1999, which for brevity I shall refer to as the Act. This brings me to my first question: How are we to interpret this Act - both as a speech act within certain enunciative modalities, and as an encoding of a value system and source of identity?

Let me begin by setting out the sources of authority for the Act, before moving to a discussion of their role in raising questions of subjectivity in discourse.

In Australia the courts can draw on three sources in order to clarify the intention behind a piece of legislation. There is the Act itself of course, which sets out what behaviour is required by whom and in what circumstances. The Act usually empowers some sort of executive body to see that the Act is carried out in accordance with the Legislative powers of government, and a third body is empowered under the Act to consider potential breaches of the Act and administer judicial power. So the Act can tell us what is required of whom, and when. But not why. For this we have to seek out two other sources.

When a Bill for an Act is introduced into Parliament, it is taken through a series of deliberative stages. And in acknowledgment that in earlier times many politicians were illiterate, the Bill was read in full three times, with debate at each stage. Of course some might still question the degree of literacy enjoyed by our gallant leaders, but let it suffice to say that we still have a system of symbolic readings, carried out by reading the long title of the Act at each stage - but the debates still take place. The first reading introduces the Bill into Parliament, and sets a date for further consideration. The next step is important to us, because the second reading is accompanied by a Second Reading Speech, which sets out the policy behind the Act in general terms. The Second Reading Speech is a legal document that can be used by the courts to establish the broad intentions behind the Act, to assist in interpreting whether or not an activity is in breach of the spirit of the Law.

Finally, tabled, but not read in Parliament, there is a third document that accompanies the Bill before it becomes a law, or Act of Parliament - this is the Explanatory Memorandum. This document is added to Hansard and also carries the full weight of law and can be used by the courts to interpret the intentions behind the Act. It is a statement in fairly plain language that explains the reasoning behind the Act in detail, clause by clause. If we understand the role of each of these in the exercise of state power, then taken together, this trinity of documents provides a fairly clear view of how the State constructs its subjects for each matter that is dealt with. In other words, each area where the State wishes to enact a boundary.

So, we have a power exercised on behalf of the state by a legislative arm of government. But this does not happen in a vacuum. Policy is informed (if that is the appropriate term) by public opinion, as reflected in the press, and in other cultural products, and in the outcome of elections where particular issues have been canvassed as the platform, or basis for election. This power is then administered by the executive arm of the government (Ministers of State and public service), and the judiciary hears and determines disputes according to the law. It all sounds a bit grandiose really, doesn't it? But the outcome of the process is what JL Austin would term a speech act. That is, a set of words that has a concrete effect in determining the powers and limits to power of the state.

Since the legislative arm of government is elected, and since it is made up of people, themselves subject to the powers of the state, the laws should in theory reflect the considered and reasonable mores of the majority of society.

Moreover, it represents a set of powers that are very difficult to enact in haste - which is probably just as well. And there are some checks and balances built in - those who make the law cannot judge a breach of it. Nor can they carry out society's retribution in the event of a breach of the law - this is that separation of powers that the Queensland government so famously had difficulty with just a few years ago.

Let me return to that word, 'breach'. It is a word with connotations of unwelcome penetration of one's boundaries. Indeed, the law is full of such sexualised language. But it is fitting then, that we use a word, such as breach, when discussing censorship of:
* that which society defines as pornographic; or
* material which contains what are euphemistically termed 'adult themes' - usually graphic depictions of violence, or
* sexual practices that challenge the boundaries of what society has come to view as 'acceptable'.

Literature and cultural production rightly have a lengthy history of holding a mirror to society, to challenge it to review its boundaries, provoke a response, and thereby re-establish a sense of identity. This is the identity which defines 'us' as against 'them' - those who are to be included as against those who are to be excluded from the benefits and protection of society.

For some reason, sex and violence attract a lot of attention - perhaps because they are dealing at once with the affirmation of life or the reminders of how close we are to death. Life... and death. These are the kind of big issues that lie at the heart of the nature of society. So it gets interesting when society seeks to hide from both of these issues under the guise of 'adult themes', or to enact safeguards around those it considers vulnerable. So these issues force society to identify those it considers morally weak. Confronting literatures force society into making a decision about where the boundary lies between decency and indecency. Confronting literatures, if they are doing their job properly, make us feel uncomfortable, and unsettle complacency. They force us to act; to define the margins of society; to erect strong barricades against penetration by the Other.

The counterforce in society, in respect of any given issue, is that of the interest groups who put the contrary case. If they are a strong enough voice in the community, they can act as a moderating force against those who would regulate away basic human rights. In the legislative process, there is a Committee stage during which Bills are put under scrutiny, and well timed and cogently argued submissions to the appropriate committee can result in significant amendments to a Bill before it becomes an Act of Parliament. Well we can dream can't we? To cover all this in detail would require a book, rather than a paper, so I shall restrict my comments to three areas:
* the legislation and surrounding discourse;
* the lobby-group discourse of Electronic Frontiers Australia; and
* the application of technical means of censorship.

And I'll take these in sequence. The fact that the Act is an amendment to the Broadcasting Services Act shows that the government did make a decision that the Internet is more like a broadcast than like a common carrier. But that didn't stop some prosecutions being attempted under the Crimes Act 1914 in relation to offensive or harassing use of a telecommunications service. And there are hints in the Explanatory Memorandum of a spirited debate as to where the decision would fall.

The tension between regulation and freedom is evident in the opening paragraphs of the EM which states:

"The Government takes seriously its responsibility to provide an effective regime to address the publication of illegal and offensive material online, while ensuring that regulation does not place onerous or unjustifiable burdens on industry and inhibit the development of the online economy." (EM 1999/1)

It is interesting too, that despite being cast as a form of broadcast, the placing of material online is referred to as 'publishing', revealing a further tension between print and broadcast forms.

Also having cast its responsibilities first to the community and then to industry, the next paragraph reverses this to place industry as the first term of the dyad. It states that the proposed regulatory framework "strikes a balance between the needs and interests of the industry and wider community concerns in relation to material that is illegal or highly offensive, or may be harmful to children." (EM 1999/1)

Now, censorship, in any form is a highly charged term, both politically and emotionally. And the use of a blunt instrument, such as legislation to determine what can and cannot be viewed or read tends to raise alarm bells wherever this occurs. People start citing the 5th amendment to the US Constitution as though there were something universal about it. Australia doesn't have anything like that, other than a harking back to some second-hand legislation written in the 1680s under William and Mary, that we borrowed from the UK. But that clause only provides for Parliamentary Privilege - a very limited form of freedom of speech for a very limited group of people.

So we don't really have a right to free speech in this country. And that means the government is quite within its rights to try to express the community's concerns and enshrine certain kinds of protection within legislation.

The outcome in this case is that under the Australian Broadcasting Services (Online Services) Amendment Act 1999 a ratings system, similar to that already in place for books and movies was applied to internet content. Now this all sounds very draconian. Especially when it comes to defining what 'adult themes' might mean - is it just about banning material of exceptional violence? Or is it about banning access to health information, and political views contrary to the government? It can certainly be made to look that way. Let's look at the Australian Broadcasting Authorities own guidelines as to what constitutes an objectionable film:

This is a film that:
(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult; or
(b) describes or depicts a person who is, or looks like, a minor under 16 engaging in sexual activity or depicted in an indecent sexual manner or context; or
(c) promotes, incites or instructs in matters of crime or violence; or
(d) is classified RC or X or would, if classified, be classified RC or X or has been or would be refused approval as the case requires.

An objectionable publication has a similar set of criteria but includes material that:
Lacks serious literary, artistic, political, educational or scientific value and describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that a reasonable adult would generally regard as unsuitable for minors and so on.

Pity about the Simpsons, Days of our Lives and the News then, isn't it!

But basically the legislative view of the protected user is two-fold:
Firstly, minors are considered at risk from explicit sexual material and excessively violent material; and secondly, business is seen to be at risk from excessive controls.

So we have an interesting tension that is laid out in the opening lines of the legislation. The question for government is how to be seen to be acting for the benefit of both client communities.

John Perry Barlow of the Electronic Frontiers Foundation suggests that we were "in danger of "getting government by the clueless, over a place they've never been, using means they don't possess" (Philip N Argy, 1996).

But what does the legislation actually enact?

Basically, it is only content that is subjected to a written complaint to the ABA that will be examined, rated and possibly ordered taken down or filtered. If there are no complaints, then there will be no ratings and no government intervention, according to Stephen Nugent - ABA Special Projects Manager in charge of implementing the regulations.

The Act has been in force since 1 January this year (2000) and the flood of complaints from those accidentally seeing the masses of pornography on the net amounts to 124 complaints to date. The vast majority of these complaints were over pornographic content, some depicting child pornography. The outcome of the 71 investigations that were finalised is that some material on 31 websites was ordered to be taken down.

Now, according to the Australian Bureau of Statistics, some 6 million Australians used the internet at least once between November 1998 and November 1999. If indeed each of these logged on just once, then the 124 spread over the year would amount to one complaint in 12,000 internet usages - a complaint rate of about 0.0083 percent, according to a recent article in Hotwired - the online Wired Magazine. Our 31 domestic take down notices broke down into 26 cases of material deemed overly sexually explicit or connoting sex with minors and the other five were deemed material that required some form of adult verification before viewing. Those that weren't finalised were submitted to filtering software makers, and some were referred to the police as they contained violent crime instructions or gratuitous scenes of death or crimes of violence.

Given that the word "sex" is one of the most searched items one would have to ask how much is out there? A recent survey by Steve Lawrence and Lee Giles of the NEC Research Institute in Princeton revealed that about 83 percent of web content is commercial; 6 percent is from educational or scientific institutions, while pornography made up a whopping 1.3 percent of web content - about the same amount as government content sites. So perception is an interesting thing. In fact the pornographic content of the web is about the same percentage as for printed material. Lawrence and Giles explain that most people, when searching for information using search engines target their searches with fairly well defined search parameters - if I am looking on the net for spark plugs for my car, I would probably look for spark-plus-plug-plus-automotive and so on in order that I don't get flooded with pages of bathroom sink plugs and wood-fire spark arrestors. On the other hand, those looking for sex typically use a restricted search vocabulary - hence sex emerges as a statistically skewed search term.

And how effective is the legislation? Well, at least one of those under take down notices immediately transferred their content to the US where the material is constitutionally protected, while retaining the same Australian address for the website - it is an automated click through.

The speed and ease with which this could be accomplished opens a fairly obvious question doesn't it?

Why make legislation that can be circumvented so easily? Is there a disjunction between intent and execution? Let me return to that question later.

The fire and brimstone born again freedom of speechers say it's all a con job. The government is out to censor and stifle freedom of speech and will stop at nothing to pry into peoples private lives under the guise of protecting us. The more extreme free speechers see the government as wanting to turn the net into a kiddy playground.

As recently as 5 May 2000 the Electronic Frontiers Australia was saying that the Australian internet censorship regime is one of the most draconian Net censorship proposals the world has ever seen. One of. I suppose this statement could be accurate if you were to list the censorship regimes of about 45 of the world's countries, in which case Australia might scrape in. But I doubt it. In a report from Reporters Sans Frontiers issued last year, internet censorship measures included:
* forcing everyone to access the net through a single state-owned and filtered ISP (Internet Service Provider) (Belarus);
* forcing under pain of long jail terms everyone to register their computer with the government (Burma);
* Allowing only one ISP to operate, and then only in the Capital city (Tajikistan);
* Monitoring user's access and jailing people for sending classified material over email (a phone directory) (China);
* Mounting organised attacks against internet servers that hold contrary political information (Sierra Leone, Burma);
* Forcing everyone who joins and ISP to register with the government (Vietnam);
* Completely banning all access to the internet (North Korea, Iraq, Libya, Syria)
And so on. Against this backdrop, inviting people to write in with suggestions for sites they would like examined with a view to placing behind a verification page, seems somewhat trivial.

EFA is concerned about a range of issues including:
* freedom to read;
* freedom to publish;
* restricted access systems - as to complex or expensive for small service providers;
* technological problems and expense of ineffective filtering software (that blocks classical latin texts for the word 'cum' and support groups for various medical conditions, including breast cancer)
* use of credit cards for age verification for non-commercial sites.
So the EFA is construing the government as draconian insofar as it seems to be applying through legislative means pressure to render the web difficult to access, and child-safe to the point of restricting basic rights of expression - the reinvagination of the domestic polity.

The government invokes the 'harm' principle in applying censorship classifications despite contradictory evidence on whether there is a causal or associative relationship between pornography and crimes of sexual violence - does pornography lead to such crimes? Or is it simply that people who commit such crimes sometimes also read or view pornographic material? Perhaps the associative relation is sufficient to warrant some form of response.

What I find interesting here is that the legislative response is so apparently inadequate. Why pass legislation that cannot be enforced; that will not stop people accessing pornographic sites hosted offshore in constitutionally protected jurisdictions; and do so using an enforcement body that is patently incapable of classifying more than a tiny percentage of material even where it is hosted on Australian servers.

Is the government ill-informed? Is it draconian? Is it incompetent in this area? Or is something else at work?

I would argue the latter position. The Senate committee charged with looking into the issue received around 1200 submissions in considering the legislative response. Clearly there were community perceptions that needed to be addressed, but equally clearly, the government could see that the emerging electronic economy would be an important source of revenue. So what can a government do when faced with such a tension? One response is to produce legislation with a lot of declarative rhetoric resulting in a 70 page amendment Act, but with limited powers of enforcement. The Act makes use of industry-based codes of conduct in order that whatever the outcome it will be something that is achievable by industry. Then the Act relies on people taking the time to make submissions in writing on each page that is to be examined for classification. And even if there are complaints, the material in most cases can still be made available providing a front door is built for that part of the site. In any event it is not difficult for material to be moved offshore, so in the end the Act is unenforceable by the small, under-funded agency charged with classifying the material. It is in fact a clever move - at once being seen to act on behalf of those in the population with concerns, and on the other to say we'll act only where someone takes the time and effort to complain, and, by the way, it's pretty easy to circumvent the technical controls.

In the end it is a dance of the seven veils - you may view this site by clicking here. Are you sure you want to proceed? Then click here. Do you want to complain? Then click here and fill out a ten page form for each page you wish to complain about. It is arguably a form of raising desire by deferment, delay, enfoldment, containment. But it is not, in the end, denial.

DRAFT ONLY: NOT FOR QUOTATION. Comments, however, are most warmly welcomed.
Copyright Jerry Everard
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