On Fri, 19 Jul 2002 16:15:06 +1000 Rick Welykochy <rick@praxis.com.au>
wrote:
>Irene Graham wrote:
[...]
>> Under current FOI law, the ABA blacks out the names and URLs of web pages
>> that have been 'taken down' from Australian web sites by order of the ABA
>> before releasing a document. Under proposed amendments, documents
>> containing identifying information that is currently blacked out would
>> become exempt in their entirety.
>
>Without trawling through legislation, a simple question if I may:
Unfortunately, simple questions about Australian censorship laws can rarely
be simply answered (due to varying provisions and unclear wording of a
variety of untested laws). However, short answer (followed by longer answer
for anyone interested) is below.
>Is there a sanction in the BSA or related Acts that prohibits the
>owner of censored content, once they receive a take-down notice, to relay
>the URL of said content to a third party?
Not in the BSA.
Re related censorship Acts, generally and broadly speaking, no.
If the URL does not "make available" access to the censored content,
certainly not.
If the censored content is still accessible at that URL then, generally and
broadly speaking, no, provided the URL is relayed to an adult (and maybe
also provided the content accessible at that URL does not fall within
legislated definitions of child p.o.r.n.ography. NB: Much of the Australian
hosted content banned is not cp despite gov. implications/claims to the
contrary.)
The difficulty with answering the question clearly is that the answer in
relation to any particular instance depends on whether a relevant
State/Territory has relevant laws in force (only three have, enacted in
1995). Of these, the provisions vary markedly and are a jurisdictional
nightmare. Further, State/Territory laws use undefined terms like "make
available", "transmit" and so on. Does providing a URL "make available"
content at the URL? It appears to be a question courts may one day be
called upon to decide. For more info about S/T laws, see [1] at the end
hereof.
>What is there to prevent those receiving such notices to arrange for
>publication on a server somewhere 'out there'?
Nothing, generally speaking (depends on S/T laws, untested jurisdictional
issues, etc) and that is precisely why the government makes such a secret
about classification decisions of online content. The Federal Government
says that if the name (or URL) of a web page that had been classified MA15,
R18, X or RC and ordered taken down was disclosed to anyone, such
information "would enable, or would be likely to enable, a person to gain
access to...offensive content on the Internet" (extract from Explanatory
Memorandum to proposed changes to FOI law).
For example, a site that was taken down by order of the ABA (in Jan/Feb
2000) was moved to an overseas location. The ABA knows that - they said, in
a report tabled in the Senate, that they notified the URL to filter makers
after the site moved to an overseas host. The 'taken down' content is still
accessible 2.5 years later. The ABA did not release the URL to EFA, but the
information they did release under FOI, with URL etc blacked out, was
unquestionably cross-referenceable to other information EFA received from
non-government sources. At the time the content was 'taken down', the
content provider was apparently resident in a State that has had Internet
censorship laws in place since 1996. However, those laws appear only to
cover intentional or knowing transmission (can't recall exactly off hand)
to a person under 18 years. It appears the police in that State have not
considered there's a case for prosecution of the content provider.
>One really wonders why the gummint is going through such extraordinary
>measures to protect, what was it last year, a couple of hundred forbidden
>URLs.
Btw, it's not just URLs. The proposed changes to FOI will exempt vastly
more info - documents that contain no identifying info at all about
'prohibited content' will become exempt.
>At what was the cost ... over $10,000 per take down notice? I'm sure we
>all feel we are living in a safe Australia ;)
In the six months ended 30/6/2001 (the most recent figures available), the
ABA spent $531,478 enforcing the Internet censorship regime, according to
Senator Alston's answers to questions tabled in the Senate (and Net Alert
spent a further $813,955).
In that six months, the number of URLs 'taken down' varies depending on
which government report one thinks most likely to be accurate.
- Senator Alston's six month official report tabled in Parliament states 8
of 16 complaints about 'Australian hosted content' resulted in the ABA
finding 37 items of prohibited content.
- Senator Alston's later answers to questions on notice in the Senate say
the official report was wrong. He said there were less items found, 34 not
37, and these came from 11, not 8, complaints.
Let's say there were 37 items taken down, that's $14,364 per item 'taken
down'. Of the 37 (or 34) items taken down, 17 were newsgroup postings which
the ABA orders only one ISP to take down - the postings remain available on
the news servers of some 600 other Australian ISPs, but they're reported as
'taken down' in government reports on the 'effectiveness' of the regime.
Perhaps that $ calculation is unfair, after all, the ABA also notified 153
items of content hosted on overseas servers to the makers of filtering
software in the same six months. In April 1999, before the Commonwealth
Internet censorship laws were enacted, Senator Alston spoke favourably
about a filtering product that claimed to have 8 million URLs on its
blacklist without any help from the ABA. Perhaps that American company has
found the ABA's notifications (at Australian taxpayers' expense) of 400
URLs over the 18 month period commencing Jan 2000 helpful.
[1] Here's a more detailed answer to:
>Is there a sanction in the BSA or related Acts that prohibits the
>owner of censored content, once they receive a take-down notice, to relay
>the URL of said content to a third party?
First, to ensure clarity, I understand "owner of the censored content" to
mean the content provider, not an ISP or ICH who hosts content created by
other people. Second, the below assumes the content at the URL is still
accessible and that some State laws might be interpreted to construe
provision of a URL as "making available" the content.
There are no sanctions in the BSA. The BSA only regulates Australian ISPs
and ICHs in relation to content hosted on their servers. It does not
regulate content providers who have their content hosted by ISPs and ICHs.
In relation to other Acts, generally and broadly speaking, no, provided the
content in question is relayed to an adult and does not fall within
definitions of child p.o.r.n.ography. However, the answer in any particular
instance depends on a combination of factors including:
- in which State/Territory does the "owner" and/or the "third party" live,
and or where was the content relayed from and/or where was it received
(existing State laws in Vic, WA and NT are a jurisdictional nightmare).
- is the "third party" an adult or a person under 18 years.
- is the content in question classified MA15, R18, X, RC.
Examples:
- It is not illegal under any State/Territory to make available Internet
content classified MA15 or RA18 to an adult, whether on the Web, or relayed
by some other means. However, the Federal Government tries to keep names
and URLs of any such content secret.
- It is not illegal under any State/Territory laws, except under Victorian
law, to make available Internet content classified X to an adult, whether
on the Web, or relayed by some other means. However, the Federal Government
tries to keep names and URLs of any such content secret.
- Under the laws of Vic, WA, NT, it is illegal to "make available" or
something like that (legislative phrasing varies) Internet content
classified RC to adults. (Under WA law, it is also illegal for adults to
obtain possession of such material knowing it to be 'objectionable
material' as defined in the WA law).
The Federal Government tries to keep even the names of such online content
secret. In contrast, when a movie is banned the government makes a public
announcement. For example, recently the government announced the film
'Baise-Moi' had been banned, and thousands of people subsequently viewed
the banned film at the cinema. Many more have possibly ordered a copy on
video or DVD from overseas. Although it is illegal to import a video/DVD
that is "Refused Classification" and delivery may be stopped by Customs, as
AAT Deputy President Forgie remarked during an FOI hearing on 19 July 2001:
"I'm sure people have thought of ways around that which will work some of
the time."
There are two reasons for the veil of secrecy over the Internet censorship
regime:
- it could not be perceived, by anyone, to be remotely effective, nor a
justifiable use of taxpayer funds, if the veil of secrecy was removed.
- some information currently obtainable under FOI (not including names/URLs
of prohibited content) raises, to say the least, questions about the
accuracy of government claims about effectiveness of the regime. Evidently,
the government considers release of such info to the public is double plus
ungood.
Irene
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