House of Representatives Standing Committee on Infrastructure and Communications has handed down its report into whether Government agencies should ‘disrupt the operation of illegal online services.’
The ability to do so, a right it has under Section 313 of the Telecommunications Act, is one way the Government hopes to reduce piracy – the illegal downloading of copyrighted material from bit-torrent websites like The Pirate Bay. The Government has also introduced a new regimen under which ISPs will report pirates, allowing content owners to prosecute them once they are identified.
The Committee, dominated by Government members and chaired by Liberal MP Jane Prentice, has unsurprisingly endorsed the Government’s plans to ‘disrupt’ websites it believes facilitate illegal activity. As usual, it cloaks its intentions behind the purest of motives:
“The Internet has created new markets but also the means for producers and peddlers of child abuse material,” says Prentice in her Foreword to the report. “It has provided a global forum for terrorist organisations and recruiters, and has put these organisations within easy reach of impressionable young people. It has facilitated the trade of illicit goods and services, and allowed scammers to anonymously target vulnerable people for their hard-earned money and personal information.
“How we deal with these threats is a question of balance. To do nothing would constitute an abdication of duty—but to go too far would risk trampling those very rights and freedoms we seek to protect. So too, an overzealous censorship program would muffle the critical voice of the electorate, and erode the accountability of government.”
Would it indeed? ‘Overzealous’ usage in the past has resulted in problems, such as when the Australian Securities and Investment Commission (ASIC) accidentally blocked 250,000 legal websites in March and April 2013 because of its ignorance of how the Internet’s domain name structure works.
“The Committee has grappled with these questions, and I believe has struck the right balance between competing priorities,” says Price. “The Committee examined the appropriateness and efficacy of using Section 313 of the Telecommunications Act 1997 to disrupt illegal online services, and has determined that there remains an indisputable need for government agencies to have access to these powers. The Committee acknowledges past mistakes, and sets out a way forward for the effective use of Section 313 by government agencies.”
The Government is asking us to trust it not to make the same mistakes again. The report goes into some detail about the ASIC ‘incident’, concluding that any repetition can be avoided by ‘more rigorous internal processes’.
The report is called ‘Balancing Freedom and Protection’. It is available here. It acknowledges the many submissions it received, quoting from some of them in detail and noting that many of them were highly critical of the lack of transparency and accountability in the current use of Section 313.
The general thrust of these submissions was that if the Government and its agencies are to be allowed to ‘disrupt’ any websites, they should do so in an accountable and transparent manner, so abuses and mistakes do not occur.
The report makes it clear that the Committee has listened to these concerns. It makes two recommendations:
“The Committee recommends to the Australian Government the adoption of whole-of-government guidelines for the use of Section 313 of the Telecommunications Act 1997 by government agencies to disrupt the operation of illegal online services, as proposed by the Department of Communications, including:
- the development of agency-specific internal policies consistent with the guidelines
- clearly defined authorisations at a senior level
- defining activities subject to disruption
- industry and stakeholder consultation
- use of stop pages, including agency requesting the block, reason for block, agency contact and avenue for review.
- public announcements, where appropriate
- review and appeal processes
- reporting arrangements.
“The Committee recommends to the Australian Government that all agencies using Section 313 of the Telecommunications Act 1997, to disrupt the operation of illegal online services have the requisite level of technical expertise within the agency to carry out such activity, or established procedures for drawing on the expertise of other agencies.”
It is now up to the Government to consider the Committee’s report. There is no guarantee it will adopt the Committee’s recommendations. Nor is there any guarantee that even if it does, more mistakes will not occur in the future.