Category: Censorship

ASIC and s313

Unless you’ve been living under a rock, you’ve probably heard of ASIC’s handy work in accidentally(!) blocking 250,000 websites under s313 of the Telecommunications Act and the good work of pirate activists in extracting information about other incidents of s313 blocking.

I applied at about the same time for similar information but extended my request to include some of the policy or protocol statements regarding the agency’s use of the powers s313 granted it, as well as minutes or records of any meetings.

a) Internal policy or protocol statements, guides or memoranda regarding the use of s313 of the Telecommunications Act 1997 for the purposes of requesting from Internet Service Providers, Carriers or Carriage Service Providers, the blocking, filtering or other interference with access to websites determined by ASIC, or by a judicial authority on application from ASIC, as warranting such action, produced or currently valid for the period 12 months prior to this request.

b) In particular, documents, reports, memoranda or internal communication relating specifically to the request by ASIC to Internet Service Providers, Carriers or Carriage Service Providers to block the websites mentioned in the ASIC Media Release 13061MR[1] entitled ‘ASIC warns consumers about Global Capital Wealth’.

c) Memoranda, records or minutes of any meeting or correspondence, between the Department of Broadband, Communications and the Digital Economy, the Attorney General’s Department or any other Ministry or Government agency for the purposes of discussing the use of s313 of the Telecommunications Act 1997, within the last 12 months of the date of this request, as discussed by Ms Sachi Wimmer, First Assistant Secretary, Cyber Policy and Homeland Security Division in Senate Estimates, in the Finance and Public Administration Legislation Committee on Monday, 27 May 2013, at page 82.[2]

I received many documents [PDF] already released to Brendan Molloy, with the addition of a slide show from the FSE Forum, 18 December 2012 on s313 blocking, as well as some scans of articles from Delimiter and the SMH.

Also the breadth of departments and agencies that have been debriefed on s313 is revealed with the following participating in the AGD/DBCDE convened conference:

  • Department of Immigration and Citizenship (IMMI)
  • Attorney Generals Department (AGD)
  • Australian Communications and Media Authority (ACMA)
  • Australian Competition and Consumer Commission (ACCC)
  • Australian Taxation Office (ATO)
  • Australian Crime Commission (ACC)
  • Australian Federal Police (AFP)
  • Department of Broadband, Communications and the Digital Economy (DBDCE)
  • Australian Customs and Border Protection Service
  • Australian Human Rights Commission (AHRC)
  • Australian Security Intelligence Organisation (ASIO)

Quite a few documents were refused access, because they’d prejudice the operation of ASIC if they were to be released, or would compromise the investigative/detective/preventative operations of ASIC if they were to be released. That will be appealed in due course.

What is perhaps more troubling is the documents that weren’t uncovered, because they didn’t exist. Policy or protocol statements. Government agencies have the authority and power vested in them by virtue of s313 to block access to huge slabs of the Internet – yet have no guidance or policy statements on how that power should be executed. Troubling.

Like Pulling Teeth

 

Recently, I made a request for access to the Attorney-Generals Department for draft legislation which was refused because it would not be in the public interest to release such information. It was covered fairly comprehensively by Delimiter & The Sydney Morning Herald, the refusal to release advice, preparatory materials and other information was roundly condemned. Similar efforts to make material available by the Australian Greens, strengthened by their access to parliamentary processes were shut down as the major parties colluded to shut down access.

Now begins the long process of asking for a review via the Office of the Australian Information Commissioner(OAIC), and fighting for the documentation to be released [PR]. The text of the appeal is below. I’m informed by the OAIC that there is a huge backlog of appeals for review, meaning it could be months before the process even begins and a case officer is assigned.

This is a situation the Attorney General’s Department is fully aware of. Any request for internal review, would surely fail, simply because of the organisational confirmation bias and they know there is significant lag at the OAIC. The AGD are fully aware of the political sensitivity of the issue and the legislative changes they’ve sought, but are gaming the freedom of information process to strategically delay or preclude public scrutiny and debate. The process of actually bringing government bureaucracies into the 21st century, and acting in accordance with platitudes of ‘Open Government’ really is like pulling teeth.

 

Letting in the sunlight…

The following documents were received from the Attorney-General’s Department under the Freedom of Information Act (1982). They pertain to a secret meeting between copyright industry lobbyists and Internet Service Providers (ISPs). Much of this information has not been previously made publicly available. All information made accessible to me is now publicly available.

Analysis will follow in time. Those that know, understand my current personal situation precludes me from committing time to commenting and analysing the issue. For all comments, I’d recommend contacting Pirate Party Australia as I am informed they will now analyse the documents.

UPDATE: Renai Le May at Delimiter  has quickly picked up on one of the central themes of the documents – consumers were and continue to be excluded from the process. This exclusionary approach is standard practice for the Attorney-General’s Department.

UPDATE 2: Mozart has come straight to the point — what does transparency and open government look like in modern Australia?

UPDATE 3: Michael Lee at ZDNet has a good summary of the issues and themes within the released documents.

 

Lack of Transparency & Inclusion Raises Questions About Integrity of Democratic Process

 

On the August 24, The Australian revealed that the Attorney General’s Department was convening meetings with stakeholders — except that it had excluded one very important group. You.

The copyright lobby and its many faces and fronts are being given an audience with the Attorney General’s Department and platform on which to pressure ISPs into an industry code for ‘dealing’ with file sharers. Of course, we know what that means – the termination of access on their accusation.

What is very worrying, is that this is being conducted behind closed doors and that the government seems very willing to place the legislative gun to the head of service providers. If there is one thing that the government is transparent about, it is that it will pull that trigger, in attempting to enforce an antiquated monopoly mechanism, with no regard to clear issues with human rights and civil liberties.

We cannot rely on ISPs to protect consumers — when push comes to shove, they will capitulate, so it is important that civil society and political groups and parties all sing the same song — termination, suspension or limitation of access to the Internet for allegations of copyright infringement, or even breaches, are not acceptable or proportional.

Below is a letter sent to the Secretary of the Attorney General’s Department, Mr Wilkins.

Dear Mr. Wilkins,

I write to you seeking clarification of certain issues raised in an article authored by Andrew Colley, published in The Australian on August 24, 2011 entitled ‘A-G in call for talks on online piracy’.[1]

The article cites a spokesperson for the Attorney General’s Department indicating that a meeting had been convened in order to garner the differing positions, need and scope of any governmental intervention.

It is very concerning that there has been no public mention of the meeting convened between stakeholders and that amongst the published list of invited participants there appears to be no representation from consumer organisations or civil society – in fact, the meeting appears to be convened with the specific intention to exclude these stakeholders.

It is even more concerning that organisations like the Australian Content Industry Group, and the dubious studies they have commissioned, which have subsequently been used by the Attorney General as justification for the policy direction of the Australian Government[2] and only released by the organisation after Freedom of Information requests were made by myself to the department, are being given unfettered access, facilitated by the Attorney General’s department to lobby government and industry for the development of an industry code, or to effect legislative changes.

The willingness of government ministers and the Attorney General to so readily facilitate the development of disconnection mechanisms for alleged copyright infringement like those operating in New Zealand, the UK or France, is worrying.

The termination or limitation of access to the Internet on the grounds of violation of intellectual property laws, in this case, copyright, is completely disproportionate, ineffective and a violation of human rights.

That this is done without the oversight or inclusion of civil society in an open forum raises questions regarding the integrity of the democratic process and the willingness of the government to engage and listen to alternative perspectives, economic analysis and academic study.

It is imperative that the government acts in the interest of Australian citizens, recognising the importance of Internet access, protecting the rights of Australian citizens to seek and impart information, knowledge and culture, and works to safeguard due process and fundamental rights. It can do this by being transparent and open in its decision-making and policy development process.

Kind Regards,

Rodney Serkowski

Filtering and Blocking to Protect Copyright Infringes Fundamental Rights: EU Court of Justice

In what could potentially be very big news, and a first step in actively pushing back the copyright monopoly, the Advocate General Cruz Villalón of the Court of Justice of the European Union has given opinion that states:

Advocate General Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

Rick Falkvinge writes:

This means that Eircom can no longer be forced to eavesdrop on its customers to filter out certain parts, and it means that Danish ISPs can no longer be mandated to censor The Pirate Bay and AllOfMP3. Black Internet in Sweden can give the finger to the court order to block The Pirate Bay. Many, many aggressions from the copyright industry stand to just fall flat on their face.

Christian Engström relays a comment from Slashdot user CrystalFalcon which very succinctly relays what the opinion of the Advocate General actually means:

One, no court may impose an ISP with an order to filter, in particular not because of enforcement of copyright monopolies;

Two, such filtering is a reduction of fundamental rights, so

Three, if laws are written requiring an ISP filter or block the internet, such laws must conform to very strict criteria that are applied to laws limiting fundamental rights. They must be effective, they must be proportionate, and they must be defensible in a democratic society. While this sounds like political wishywashing, it has some very specific meanings. It is useful to compare to what laws have been written to prevent terrorism: these laws are held to that standard, which the copyright industry wants badly to supersede. The Attorney General also goes into detail how such laws must be transparent and predictable.

What this does not say is that:

Four, no censorship must ever take place.

Five, no ISP may choose to limit what they present as “The Internet”.

In conclusion:

Six, it has been the modus operandi of the copyright industry to threaten ISPs with “block to our wishes or we’ll take you to court”. This has been their standard operating procedure for the past couple of years, in order to establish enough precendents to get them written into law. Today’s verdict, or potential verdict, gives those ISPs the power to say “go play on the highway, parasites, we have an order from the highest possible court saying no court can force us to do that. We care more about our customers than about obsolete irrelevants”.

Seven, this is the highest court in Europe, referring to the (equivalent of) Constitution of Europe. Thus, there are no courts and no laws that can supersede this. No EU Directive can change this (potential) verdict. The way forward for the copyright industry appears permanently blocked; I hold it as absolutely improbable that they’ll get paragraphs in the referred European Charter of Human Rights that put the copyright monopoly before the sanctity of correspondence, of personal data, and freedom of information.

This on the day New Zealand’s Government have passed insidious disconnection laws that violate human rights.

 

Blog Safely With Pirate.is

The Washington Pirate Party has launched ‘pirate.is‘ a blogging service not unlike any other, based on WordPress, with one important distinction — it takes advantage of the legal framework and protections provided by the Icelandic Modern Media Initiative by being hosted in Iceland, that provides:

 

 

— Whistle-blower protection
— Source protection
— Source-journalist communications protection
— Limiting prior restraint
— Protection of intermediaries (ISPs)
— Protection from “libel tourism” and other extrajudicial abuses
— Statute of limitations on publishing liabilities
— Process protections

This framework is something that almost all Pirate Parties, including ours, advocate at a national level.

© 2017 Rodney Serkowski

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