Response of the ACS/EFA Joint Task Force

From: John Lamp < jw_lamp@probitas.cs.utas.edu.au> 
To: consult@dca.gov.au
Subject: Response of the ACS/EFA Joint Task Force
Information and Communications Services Policy Group
Department of Communications and the Arts
PO Box 2154
CANBERRA ACT 2601
consult@dca.gov.au

These comments on "Consultation Paper on the Regulation of On-Line Information Services" were written by the ACS/EFA Joint Task Force (JTF). See end for details about the JTF, ACS and EFA.

>   CONSULTATION PAPER ON THE REGULATION OF ON-LINE INFORMATION SERVICES

Note: the quoted text (lines starting >) is from < http://www.dca.gov.au/paper_2.html> .

>   7 JULY 1995

The Government's decision to consult the community is welcome. Particularly welcome is the decision to make the consultation paper available on-line and accept comments by e-mail.

>     INTRODUCTION
>
>    There is community concern over the availability of offensive material
>    from on- line information systems such as computer bulletin boards
>    (BBS) and the Internet. In November 1993 the Minister for
>    Communications and the Arts and the Attorney-General established the
>    Computer Bulletin Board Task Force to examine the regulatory options

It is not proven that regulation is the answer. Given the terms of reference of the BBS Task Force, they were constrained to come up with a regulatory solution. However since the group behind this consultation paper (Information and Communications Services Policy Group) don't have any terms of reference, the JTF strongly suggests that the Policy Group look at other solutions.

>    for BBS. This consultation paper proposes a framework that builds on
>    the work of the Task Force while recognising the need to address the
>    problems in relation to a wider range of services.

Unfortunately the BBS TF proposals for BBS regulation are not appropriate for Internet services since such regulation of the Internet will not work.

The community concern cannot be addressed by regulation. Policing of any sanctions beyond the current criminal law will prove impractical. Education and public training through schools and TAFE colleges, and government encouragement of wider community access to the Internet will assist the Australian public to better use the resources available.

>    Many of the concerns arising from the BBS context are also relevant to
>    other on- line services such as the Internet. There is a clear need
>    for a consistent approach in the regulation of content that is
>    available through various media sources.

The comparison between BBS operations and Internet access providers make a consistent approach technically naive. A BBS is typically operated at one site containing all data and programs available to users. An internet access provider operates a gateway for users to explore a world of information, arriving into Australia at a speed which defies preview.

The differences in the technology involved mean that while the type of regulation proposed in the paper could work for traditional type BBS it just won't work for the Internet.

The comparison between Television, Video, CD, Radio and magazine regulation and an Internet access provider's obligations is fallacious. The Internet is a multi-cast network, with transmission of information occurring simultaneously from any number of sites. No one site is responsible for the material that may be accessed through it, and the site operator does not have any knowledge of what material the user is obtaining as a matter of course.

>    The regulatory regime to be applied to these new services should be

It is important to realise that in the case of the Internet the new services provide access, not content. The content comes from all over the wold. Most of the content available via the Internet is outside the control of anyone in Australia.

>    able to meet a number of potentially competing objectives. These
>    include:
>      * protecting freedom of expression, especially with regard to
>        private communication between adults;

The JTF applauds this objective.

>      * limiting children's exposure to harmful or unsuitable material;

Given the nature of the technology involved this can not be done at a national level, but can be done at the point of access to the Internet. This objective should be the responsibility of parents and teachers, not of the state. The role of government should be limited to providing advice.

>      * supporting the development of new services that enhance
>        Australia's competitiveness;

The JTF applauds this objective, but points out that the type of regulation proposed in this paper will actively hinder the development of new services.

There is a parallel with another embryonic industry that well meaning censorship attempts by Australian Government effectively killed, the FILM Industry. Is it not possible that with the current Multimedia $M budgets the left had has lost sight of the right here?

Censorship CAN and HAS ensured Australia not only missed the boat BUT exported its best and brightest to work in the field but under other flags. Then paid others for imports to see that which regulation prohibited from being made in Australia. The same CAN happen again.

>      * ensuring that emerging service industries are not burdened with
>        unnecessary costs; and

And again the JTF applauds this objective.

>      * aligning censorship regimes for new services with the regimes that
>        have been adopted for other media.

If there is to be regulation and regulation were possible the JTF would agree. However the technology is such that the state can not regulate it effectively, but individuals can. This objective is also at odds with all of the others except "limiting children's exposure". However no amount of Australian regulation is going to limit children's exposure on the Internet since some 99% of harmful and unsuitable material is located outside Australia.

>    To achieve these objectives a self-regulatory scheme for on-line
>    information services is proposed, reinforced by an education program
>    and legislative sanctions to enhance its effectiveness. This strategy
>    will incorporate:
>      * an effective self-regulatory scheme including a code of practice
>        and complaints procedure;

Self-regulation for whom? Access providers? - there is nothing effective they can do to control what people have access to. Content providers? - Australian content is perhaps 1% of the content that is available on the Internet.

This strategy has not been funded and has not been the subject of any attempts by government to develop. While the strategy may have merit, the absence of genuine consultation makes it appear designed to be a failure.

>      * a comprehensive education strategy; and

The JTF is strongly in favour of such a strategy, provided it is focused on giving parents and teachers the ability to control what children in their care have access to.

However no funding has been provided for education, and there is no discussion of whether adult education, public access or parental control are to be part of the "comprehensive" education strategy.

The range of proposals above are inevitably going to lead to the blunt instrument of the criminal law as the governments of Australia's only response to the Internet.

>      * the introduction of appropriate offence provisions.
>
>    In the future, it is likely that consideration will be given to
>    applying the proposed regulation system, or some adaptation of it, to
>    other services. The ongoing development of new technologies,
>    particularly in relation to broadband services, will provide the
>    capability to deliver to consumers content in a form (eg full motion

Such thinking ("deliver to consumers") will strangle broad band at birth.

>    video) that at present is only available through the broadcasting
>    medium. Some of the issues that exist in the regulation of broadcast
>    content will also become relevant as on-line information services
>    develop. The concerns relating to content regulation for on-line
>    computer-based information services should not be seen in isolation.
>
>    The final report of the Government's Broadband Services Expert Group,
>    Networking Australia's Future pointed out that as communications and
>    information networks become more sophisticated, we can expect complex
>    channels to develop for the circulation for information and for
>    interpersonal communication. Such developments will increase the cost
>    of comprehensive regulation of the flow of information as virtual
>    gateways and outlets proliferate in response to greater
>    interconnectivity. It will be difficult to restrict users' access to
>    sites with contentious material, especially when sites are outside
>    Australia (p69).

The JTF applauds the authors for acknowledging this point. It is for this very reason that Australian regulation of the Internet will not limit children's exposure to harmful or unsuitable material. The difficulties are such that short of pulling the plug, it will be impossible to restrict access by regulation, but simple using next generation net access clients under users or parents control.

>    Submissions on the proposed strategy are invited not only on the
>    application of the proposed scheme to BBS, but also whether it is an
>    appropriate system for application to the wider range of on-line
>    information services.

In a word "no" it is not appropriate for application to other networks. See below for the JTF's comments on the term "on-line information services".

>   BACKGROUND
>
>     Bulletin Board Task Force Report
>
>    This paper should be read in the context of the Report of the Bulletin
>    Board Systems Task Force, Regulation of Computer Bulletin Board
>    Systems ('the Report'), which was made public on 5 October 1994.

The ACS, EFA and other bodies have previously requested that the BBS TF Report be made available on-line. It is good to see the Government responding, if somewhat belatedly.

>    The Task Force's Terms of Reference, which were confined to developing
>    a system of regulation for BBS, are set out at attachment A.
>
>    The Report identified a number of options to regulate the content of
>    material distributed by BBS. These included:
>      * development and adoption of guidelines by the BBS community with a
>        complaints based system of enforcement;
>
>      * application of partial classification to BBS by prohibiting
>        material which would be 'refused classification' and developing
>        formal guidelines for dealing with 'restricted classification'
>        material. No compulsory classification would be required;
>
>      * application of partial classification together with a legal
>        obligation on BBS operators regarding 'restricted classification'
>        material; and,
>
>      * application of full classification to BBS including compulsory
>        classification;

Given the extent to which regulation is seen as the answer it is interesting to note that the only option from the BBS TF report that is missing from the above list is the "Do nothing" option. In terms of regulation, do nothing is the only sensible alternative. Approaches other than regulation should be used.

>    The options in the Task Force Report have been considered by
>    Commonwealth, State and Territory Censorship Ministers. Ministers have
>    requested that further consultation take place with industry and the
>    community with regard to the Task Force proposals for dealing with
>    BBS. The following proposal is put forward as part of the consultative
>    process in relation to a wider range of services but is not intended
>    to preclude comment on other means of dealing with the problem or on
>    specific technologies and services.

This is welcome. The JTF points out that other approaches must be considered because regulation will not achieve the desired results.

>     It is stressed that no Government, Commonwealth, State or Territory
>    has made a decision on the matter or on the proposals that follow.
>    They are put forward for consultation purposes only.

This is welcome news. Nontheless, more than two State governments have announced that legislation will be introduced before the responses to this consultation paper could even be collated.

>     Censorship in Australia
>
>    The proposed regulatory regime relies on the application of the
>    classification scheme that currently applies to computer games, films
>    and publications, to material transmitted through, or available from,
>    on-line information services.

This is nonsense in a multicast medium. Virtually all of the material "transmitted through" online information services comes from sites overseas and entirely beyond the reach of such a scheme. Material produced in Australia is mostly text messages, but still at a volume incapable of being read by any number of censors.

>    While publications, films and computers are the subject of a formal
>    legislative structure, the system is also drawn upon to determine
>    classifications given to material in other media. The classification
>    guidelines are the basis for the classification codes for free to air
>    television and also apply to Pay TV. The aim of this approach has been
>    to achieve consistency in the classification of similar material
>    across different media. The method of achieving this end, however,
>    varies according to the media involved. Consistent with this approach,
>    the question arises as to how the current system can be utilised in
>    relation to on-line information services.

Calling electronic networks "on-line information services" is like calling a telephone network an "audio information service" because one can access 0055 numbers using the network. In terms of the question "how can the current system be utilised"? It can't since most of the content available is accessed directly by users from computers which are located outside this jurisdiction.

>    The proposed strategy has three key elements:
>      * a self-regulatory framework incorporating a code of practice and a
>        complaints handling procedure,
>
>      * an education component that could use services such as the
>        Education Network Australian initiative(EdNA) to assist parents
>        and teachers in protecting children from unsuitable material, and

Very good! However as the answer must lie with parents and teachers, much more that three lines needs to be said on this.

>      * the introduction of offence provisions to provide sanctions
>        against persons who deliberately breach community standards.

Who's community standards? Australian? Saudi? Tennesee? If we are going to live in a global information village we are going to have to live with a wide diversity of "community standards".

>    The development of self-regulation will mean that there will not be a
>    need for compulsory or formal classification of material on on-line
>    information services by the Office of Film and Literature
>    Classification. Instead, a code of practice will include guidelines
>    developed in consultation with industry and the community.

The idea that there is material on "on-line information services" which could be classified in Australia betrays a fundamental lack of understanding of what the Internet is. What material is being talked of here? In the future it is likely that less that 1% of material accessible will be material that is in Australia and subject to Australian regulation.

>    These guidelines would apply to material corresponding to the refused
>    classification category and the restricted classification category
>    (eg. the "R" classification for films) with provision for sanctions
>    for non-compliance with the code. A sanction could be, for example,
>    cancellation of membership of the relevant organisation or the removal
>    of industry accreditation, if an accreditation scheme is introduced.
>    Submissions are encouraged to address the point of what sanctions
>    would be appropriate and effective to deal with non-compliance with
>    guidelines.

No sanctions would be effective. All they would do would be to drive operators offshore. Even if all Australian content were regulated out of existence there would still be orders of magnitude more content outside of Australia that is beyond the reach of Australian regulation.

>    To provide an incentive for self-regulation, the proposed offence
>    provisions will recognise adherence to an approved code of practice as
>    evidence that a person has taken all reasonable steps to control the
>    existence or transmission of objectionable material. This will
>    encourage on-line information service providers, and their
>    representative bodies, to develop and implement appropriate procedures
>    under a code of practice.

There are no reasonable steps that can be taken to control the transmission of objectionable material over the Internet.

>    The objective of the complaints mechanism will be to resolve
>    complaints about material available through the networks before
>    resorting to any offence provision. It is proposed that the complaints
>    handling body would operate as an independent body to ensure public
>    acceptance and confidence. There will also be a need to ensure
>    standards applied by the complaints handling body reflect prevailing
>    community standards as recognised in the classification standards
>    applied by the Office of Film and Literature Classification for film
>    and video and codes of practice in force for television.

This is just so parochial that it is hard to believe. This approach will place unnecessary burdens on service providers, deflect responsibility from individuals and parents and will not restrict access to "objectionable material" which will still be available from overseas.

There are technical solutions which will soon allow individuals and parents to subscribe to the rating agency of their choice. In fact such technology could also be applied to television, both free to air and cable.

>    The education strategy will address the major concern of access by
>    children to inappropriate material. The development of advice to
>    schools and parents on the measures that are available to manage

Yes, this is all that is needed and all that will be effective. The only effect that the regulatory proposals will have is to harm Australian interests.

>    access to on-line services, and the implementation of safeguards by
>    Government education agencies will provide an effective approach to
>    the problem.
>    The emphasis of the proposal is on self-regulation to harness the self
>    regulatory ethos already evident from the conduct of many of the
>    participants in the new technologies. However, in recognition that in
>    some cases a person may not abide by the rules, the ultimate sanction
>    of an offence provision is included. This approach is consistent with
>    that adopted for other media. The inclusion of offence provisions
>    reflects the view that, notwithstanding practical enforcement
>    difficulties, authorities still need to have a means to ensure
>    compliance with community standards by those who deliberately set out
>    to abuse the system. See attachment B for the proposed offence
>    provisions and further commentary on their operation.

The proposed regulatory system will be sidesteped by those it is aimed at, and will harm those it is not aimed at.

It is unfortunate to see so empty a reason to make unenforceable laws in an official document. If the "rules" are nonsense, they will not be made less so by imprisoning a representative site operator every so often. More importantly, legislation which prima facie makes a site operator liable to prison for offences outside his or her control will destroy the Australian industry, with consequent loss of user access, technical know-how and jobs.

>    A definition of 'an on-line information service' is included in the
>    offence provisions set out at attachment B. The definition is in the
>    following terms: 'an on-line information service' means a system of
>    stored information accessed by computer through the use of a
>    telecommunications network which allows a bi-directional transfer of
>    files or messages between the user and the system'.

Such as a Coles' cash register. In attempting to have a definition which encompasses both the amateur BBS and commercial internet providers, the context has been lost. By all means regulate file transfers from BBSs or overseas web page access from Australian internet sites, but the two must be treated differently. There is a wide range of online services, with different levels of control by operators, and different potential abuses.

>    The offence provisions that are proposed in this consultation paper
>    will address these concerns by ensuring system operators will not be
>    liable:
>      * where they follow the guidelines or code of practice developed for
>        the management of objectionable material or restricted material on
>        their system; or
>
>      * where they take reasonable steps to avoid a contravention.

Will this then make them liable in other respects? What if a user libels someone else. Will it be possible to take the provider to the cleaners because they were exercising some level of editorial control over the content? If this is so then the effect of this regulation will be to drive many access providers out of the market, force up prices to the consumer, and still not achieve its objective of preventing minors from gaining access to objectionable material.

>    The aim of the proposed offence provisions is not to make system
>    operators or service providers liable for objectionable material that
>    has passed through their service or their data base where it can be
>    demonstrated that they have taken all reasonable precautions to
>    prevent that occurring. For example, compliance with an approved code
>    of practice would be evidence of the taking of such reasonable
>    precautions. The code would be determined in consultation with the
>    community and the industry and taking into account any relevant
>    research.

Accordingly, the failure of any government to consult with the industry as to whether such a strategy is desirable or to conduct any research into whether the perceived abuses are widespread enough to justify regulation makes the above an empty platitude.

The damage caused by ill-conceived legislation will not be reduced by the sentiments of reluctance expressed on its passing, given the other options proposed will fail unless funded.

>    The development of a self regulatory framework and the establishment
>    of complaints handling procedures to manage the less serious breaches
>    of the code will allow law enforcement agencies to direct their
>    efforts at the more serious offenders who are deliberately providing
>    offensive material to the general community, particularly children.

What offenders? If there were no code the police would not have to be involved in policing it and could devote all their time to chasing real criminals.

>    Comments on the above and related issues are particularly welcome.
>
>   SUBMISSIONS INVITED

The comments on each point below are in brief.

>    Comments are sought on any of the matters raised on the Consultation
>    Paper and on all or any of the following points:
>      * whether the overall scheme is appropriate for regulating on-line
>        information services;

No. Regulation is the wrong approach. Community education, adequately funded, is the only desirable response.

>      * if it is not appropriate, any other available means for regulation
>        of BBS;

Regulation is the wrong approach. The existing criminal law has proved quite sufficient to deal with serious breaches by BBSs.

>      * whether the definition of "on-line information service" is too
>        narrow or too broad;

The definition is technically incompetent.

>      * the role of the education strategy in informing parents, teachers
>        and children about on-line information services and the ways of
>        addressing possible problems;

Yes, but must go further in developing this one. The US government has produced pamphlets. Australian governments have yet to demonstrate even that level of commitment to education.

>      * non-criminal sanctions that could be applied for non-compliance
>        with a code of practice;

Market forces. A service provider prepared to warrant that there is no objectionable material available through his or her system would enjoy a considerable market advantage. Given that regulation won't work, a code of practice is not needed.

>      * a complaints mechanism and possible establishment of an
>        independent complaints handling body;

Unless fully funded, this strategy cannot make any impact. Most BBSs are amateur and have little to gain from industry affiliation. The volume of complaints for non-compliance with a code by amateur BBS and hobbyist internet systems would be huge, although the actual harm done by such systems would be minimal.

>      * issues arising from the practical implementation of the proposed
>        offence provisions; and

What "practical"? It's impractical, unworkable, won't achieve its desired result, and will have many adverse consequences.

>      * any other matters that may be relevant.

The consultation paper is ten years behind the times. By the time the proposals could be implemented, technical solutions will emerge to both circumvent any legislation and provide parents with more control over the material their child can access.

The desired result of protecting children can be achieved by empowering parents and teachers. Such an approach will be effective, regulation will not. Such an approach will not have adverse consequences, regulation will.

If the government wishes to reduce abuse of online services, it needs merely to encourage more people to use them. Community standards are more likely to apply in a medium to which the whole of the community has informed access.

>    Submissions should be forwarded to:
>
>    Information and Communications Services Policy Group
>    Department of Communications and the Arts
>    PO Box 2154
>    CANBERRA ACT 2601
>
>    or, by email, to consult@dca.gov.au

The JTF applauds the Policy Group for providing an email address for submissions.

>     Attachment B
>
>   COMMENTARY ON POSSIBLE OFFENCES RELATING TO USE OF AN ON-LINE INFORMATION
>   SERVICE
>
>    Before reading the offence provisions it is important to note there is
>    no intention to prosecute operators who act in good faith and maintain
>    an adequate system for dealing with objectionable or restricted
>    material. Operators who conduct their systems responsibly and with a
>    sufficient number of internal controls (determined, for example, by
>    reference to the code of practice or prevailing standards and
>    technology) should not be liable to criminal sanction. Criminal
>    sanctions are aimed at those people, both operators and users, who
>    culpably breach the standards that are set regarding material that
>    they transmit or advertise, or those who fail or refuse to exercise
>    any effective controls over material that is publicly available
>    through their information services.

It is good to see an acknowledgement that operators should not be held liable for that over which they have no control. However the way this is worded will still make them liable because they have to have an adequate system for dealing with objectionable material. If there is no adequate way of doing it they will be in breach of the requirement and will be liable.

>    Readers should also note that the defences provided are broad. A
>    defendant who had objectionable material placed on his or her board
>    without his or her knowledge and consent could, for example, argue
>    that he or she is not liable as he or she had obtained undertakings
>    from users that certain types of material would not be posted or
>    posted inappropriately. The defendant may also be able to demonstrate
>    that they had conducted random checks of material available through
>    their information service.

Will such random checks amount to editorial control? If so they will be making them selves liable in other ways.

>   OUTLINE OF POSSIBLE OFFENCES RELATING TO USE OF AN ON- LINE INFORMATION
>   SERVICE
>
>     Objectionable material
>
>    Section 1 - No transmission or advertising of objectionable material
>     1. A person must not use an on-line information service to:
>
>        (a) transmit objectionable material; or
>
>        (b) advertise objectionable material as being available for
>        transmission.
>
>     2. It is a defence to a prosecution for an offence against subsection
>        (1) to prove that the defendant believed on reasonable grounds
>        that the material was not objectionable material.

"Transmit" is far wider than "publish". No site operator can know on reasonable grounds whether or not the material accessable through the site is objectionable or not. No site operator can stop users from accessing objectionable material if they are determined to do so.

>    Section 2 - Objectionable material not to be made available to other
>    persons
>     1. A person must not have objectionable material on an on-line
>        information service under his or her control if that material is
>        available to other persons for access and retrieval from that
>        service.

Many parts of a system are under "his or her control" but not written to or viewed by the operator. These include web and memory caches, email and users' directories and a newsgroups news spool.

>     Restricted material
>
>    Section 3 - Restricted material not to be made available to certain
>    persons under 18
>
>    Restricted material which is unsuitable:
>
>    (a) for a person under 18 to see, read, or play must not be made
>    available to persons under 18; or
>
>    (b) for a person under 15 to see, read or play must not be made
>    available to a person who is under 15 years of age without the consent
>    of his or her parent or guardian.

System administrators are not the country's nannies. They do not have the resources to track the usage of every user, and the use of a user's account must remain the responsibility of the user.

>    Section 6 - Commencement of proceedings
>
>    Proceedings for an offence under subsections 1(1), 2(1), 4(1) or 5(1)
>    must not be commenced until the material has been classified.

The impracticality of this notion will be demonstrated once the ABA inquiry reports in June 1996.

ABOUT THE ACS/EFA JOINT TASK FORCE: The ACS/EFA Joint Task Force (JTF) was established by the ACS and EFA in February 1995 to:

• prepare an ACS and EFA draft response to the Federal Attorney-General's BBS Task Force Report.

• advise on additional actions to be taken, such as the development of a code of conduct and providing information to parents.

• advise on options for the ACS and EFA to have the Attorney-General's report distributed.

In July the terms of reference and life of the Joint ACS/EFA task force were extended to cover the preparation of a response to the Consultation Paper.

ABOUT THE ACS: The Australian Computer Society is the professional association in Australia for those in the computing and information technology fields. It was established in 1966. The Society has over 15,000 members and on a per capita basis is one of the largest computer societies in the world. Details are available on the Internet at: URL: http://www.acs.org.au/ by e-mail: info@acslink.net.au or from the ACS office in each state. Internet regulation issues will be discussed at the 14th World Computer Congress, to be hosted by the ACS in Canberra, September 1996.

ABOUT EFA: Electronic Frontiers Australia is an association of people with a common interest in computer based communication systems, online information services, electronic mail networks, and similar media. "Born" on Fidonet and the Internet last year, EFA arose out of a growing awareness by its founding members of the need for a community based organisation to become involved in the establishment of the national agenda for the delivery of data communication services to and within the Australian community-at-large. Details are available on the Internet at: URL: http://www.efa.org.au/EFA and by e-mail: efa-info@efa.org.au.

Yours Sincerely
John Lamp
for the Task Force
--
_--_|\             John Lamp, originating in Hobart, Tasmania
/      \                 Phone: 002 20 2375 - Fax: 002 20 2913
\_.--._/                       email: John.Lamp@cs.utas.edu.au
v < --< < <          http://lamp.cs.utas.edu.au/jw_lamp.html