AU Gov't Mandatory ISP Filtering / Censorship Plan

[P]reventing information flow, communication or the exchange of art, film and writing on the internet is a task only King Canute would attempt.

- Bob Debus, (then) NSW Attorney General, Speech at the OFLC International Ratings Conference 2003.

Say No to Net Censorship

This page provides comprehensive, historical, information about the Federal Labor Government's varying mandatory ISP blocking/filtering/censorship 'plans' from late 2007 to 8 November 2012. A significantly different ISP-level blocking policy was announced on 9 November 2012, and information about that is available on a separate page: AU ISP blocking of domains on Interpol "Worst of" list.

Overview

From late 2007 until 8 November 2012, the Australian Federal Labor Government had a highly publicly controversial "plan" to mandate that ISPs block adults' access to Internet content, on a secret blacklist compiled by a government agency, that the Government deems unsuitable for adults.

Implementation of such a plan requires enactment of new Federal legislation - a vey unlikely event during the 3 years following the August 2010 election (hung parliament) given opposition parties' 2010 election policies stating they would not support nor introduce mandatory ISP level filtering/blocking legislation (see: Liberal/National Coalition Policy and Australian Greens Policy).

Update: On 9 November 2012 the Minister for Commmunications, Senator Stephen Conroy announced that [W]e have reached agreement with all of the telco service providers that they will block the worst of the worst, the child abuse pornography material that's available on the public internet and therefore the government would not be pursuing its former plan to enact legislation mandating that ISPs block access to a vastly broader range of material.

Information about ISP blocking of the 'worst of the worst' is available on a separate page:
AU ISP blocking of domains on Interpol "Worst of" list.

Prior to the 9 November 2012 announcement, the Labor Government's "plan" had changed at least three times since they were originally elected in November 2007, and their 2009-2011 plan had zero resemblance to Labor's November 2007 election policy. On 15 December 2009, the Labor Government announced the third version of their mandatory ISP-level blocking policy/plan stating (contrary to their 2007 election policy) that adults would not be able to opt-out, and that ISPs would not be required to even offer to block any adults-only material, i.e. X18+ pornography or R18+. Hence, the mandatory ISP blocking system would have been be utterly useless for a purpose of protecting children online.

The sole purpose was to require ISPs to (attempt to) block adults' access to content that the government deems unsuitable for adults. If implemented, the Labor Government would be the first government in a "western democracy" to mandate that.

The Labor Government's mandatory ISP-level blocking plan was put on hold in July 2010 - pending completion of a government commissioned review of (among other things) "Refused Classification" criteria by the Australian Law Reform Commission, which had been asked to issue its report by 30 January 2012 (and which became publicly avaiable on 1 March 2012).

The remainder of this page provides comprehensive, historical, information about the Government's varying 'plans' from late 2007 to 8 November 2012, and related information about existing AU Internet censorship legislation, etc. For visitors seeking a short overview (approx. 2 A4 pages in dot point format) about the Government's third version 'plan' (announced Dec 2009), see separate page.

Contents:

[Note: To see a more detailed contents list, including sub-sections, click the 'Expand All' button below, or any of the '+' signs at the left side.]

 

Introduction

On 15 December 2009, the Australian Federal Labor Government announced the third version of their mandatory ISP-level blocking policy/plan, which had zero resemblance to Labor's November 2007 election policy (announced 5 days before that election).

The Government announced that it plans to mandate that ISPs block adults' access to content that the Government deems unsuitable for adults, i.e. "Refused Classification" material, on a new secret blacklist to be known as the "RC Content list" compiled/maintained by ACMA, a government agency. Blocking will not be optional for adult Internet users (contrary to Labor's 2007 election policy statement).

"Refused Classification" ("RC") includes material deemed to offend against the standards of morality, decency and propriety generally accepted by [hypothetical] reasonable adults (in the opinion of some or all members of the government appointed Classification Boards). The vast majority of the sub-categories of RC material are not illegal to access or possess in most Australian States/Territories, and much of the material deemed "RC" is legal to publish/distribute/sell etc. in most other Western democratic countries. Australian adults have long been subjected to the most restrictive government censorship policies in the 'Western' world, notwithstanding that the first principle of Australian "classification"/censorship law states that adults should be able to read, hear and see what they want.

The Government also announced that ISPs will not be required to even offer to block any adults-only/unsuitable for children material (i.e. X18+ pornography or R18+ material). Hence, the mandatory ISP blocking system will be utterly useless for a purpose of protecting children online - it will not even attempt to prevent children from accessing all content that has been identified as prohibited by ACMA as trumpeted in Labor's 2007 election policy.

Throughout 2008 and most of 2009, the Minister resisted and evaded clearly answering questions from non-government Senators and journalists, and in 2009 made statements inconsistent with prior statements, indicating that their 'plan' continued to be policy on the run and quarter-baked at best.

Since 15 Dec 2009, when the government announced watering-down of their plan from so-called "prohibited content" to the sub-set that is "RC" (presumably in the hope of reducing opposition) and announcing that legislation would be introduced into parliament in Feb/Mar 2010 (which did not happen), there has been a growing chorus of opposition including from widely respected people and organisations. The Minister's response to this governmental problem has been to claim that opponents of the plan have all been misled by other people and to attack critics on national radio and in the Senate under parliamentary privilege. This is a curious reaction to public opposition; governmental/ministerial bullying tactics seem unlikely to convince anyone that the government should be permitted to block adults' access to online content on a secret blacklist.

Reportedly, proposed legislation was being drafted by the Government in late March 2010 and in early April 2010 the Minister said that realistically he did not expect legislation to be introduced into parliament until second half of 2010 (which did not happen).

A week before Labor announced the date of the 21 August 2010 Federal election, the Minister announced that a Labor Gov't would not introduce legislation mandating ISP blocking until after completion of a review of "Refused Classification" criteria (which did not commence until March 2011). Given typical time frames for such reviews and implementation of any recommendations, it was highly questionable whether that process could be completed before 2013, when the next Federal election is due.

During the 3 years following the August 2010 election (hung parliament), the Labor Government could not implement its mandatory blocking plan without the support of the Liberal/National Coalition; or, the Australian Greens Party and some independents. Both the Liberal/National Coalition 2010 election policy and the Australian Greens Party 2010 election policy stated they would not support nor introduce mandatory ISP level filtering/blocking legislation.

History: Labor's election policies & changing 'plans' 2007-2010

2007: Labor's Federal Election policy re ISP-level filtering/blocking

Five days before the 2007 election, the Labor Party issued "Labor's Plan for Cyber-safety", an election policy 'fact sheet', which stated on page 5:

Mandatory ISP Filtering
A Rudd Labor Government will require ISPs to offer a clean feed internet service to all homes, schools and public internet points accessible by children, such as public libraries.

Labor's ISP policy will prevent Australian children from accessing any content that has been identified as prohibited by ACMA...

Labor will also ensure that the ACMA black list is more comprehensive. ...

[emphasis added]
Source: "Labor's Plan for Cyber-safety", page 5, issued Mon 19 Nov 2007

Labor's ISP-level filtering policy received virtually no media publicity during the election campaign and, even if it had, most voters would expect "offer" meant they would have the option of not taking up an offer of censored Internet access. In addition, Labor's policy specifically referred to preventing Australian children from accessing so-called "prohibited" content, not adults. Also, three days prior to issue of the above policy document, Senator Conroy said during the "Telecommunications Debate" on Sky News (16 Nov 2007) that Labor has argued since March of last year ... that we should have mandatory filtering at the ISP level. Labor's March 2006 policy stated that adults would be able to advise their ISP that they want to opt out of the clean feed .

A month after the election, on 31 Dec 2007, the Labor government's 'plan' began receiving nation-wide publicity, and a great deal of criticism, as a result of a report on Page 1 of the Brisbane Courier Mail titled "NET NANNY - Onus put on providers to clean up web content". A substantially similar version of that article was published online by The Australian IT. That news report and many others in late Dec/early Jan 2008 reported that ISP-level blocking would be opt-out. For example:

Senator Conroy says anyone wanting uncensored access to the internet will have to opt out of the service.

[emphasis added]

2008-2009: Labor Govt's changing policies

In October 2008, it became apparent that Labor's 2007 election policy statement was not trustworthy.

Was Labor's 2008-2009 ISP-level blocking 'plan' consistent with Labor's 2007 election policy?

No. The Rudd Labor Government's policy/'plan' changed after Labor's November 2007 Federal election policy, and the third version, announced 15 December 2009, has zero resemblance to Labor's 2007 election policy. See Comparison of Labor's 2007 election policy with Dec 2009 plan (column-format, 2 A4 page).

To any extent that the Rudd Labor Government considered it had a "mandate" to implement its 2007 election filtering policy (announced 5 days before the election with near zero publicity), the Government had no grounds at all for claiming a "mandate" to implement its completely different policy/plan announced in December 2009.

Primary changes from Labor's 2007 election policy were announced in October 2008 and in December 2009:

For more detailed information see:

2010: Federal Election policies re ISP-level filtering/blocking

On 9 July 2010, a week before Labor announced the date of the 21 August 2010 Federal election, the Labor Gov't (Gillard Gov't) announced that it would delay introduction of legislation mandating ISP blocking until after completion of a review of "Refused Classification" criteria by Cth, State and Territory Censorship Ministers. Given typical time frames for such reviews and agreement/implementation of any recommended legislative changes, it is highly questionable whether the process will be completed before 2013, when the next Federal election is due.

[Note: Both the Liberal/National Coalition and the Australian Greens Party issued 2010 Election Policies stating they would not support nor introduce mandatory ISP level filtering/blocking legislation (see Liberal/National Coalition Policy and Australian Greens Policy). Since the 2010 election (hung parliament), the Labor Government cannot implement its mandatory blocking plan without the support of the Liberal/National Coalition; or, the Australian Greens Party and some independents.]

Current: 2011 Labor Govt mandatory ISP-level filtering policy/plan

As at 30 May 2011, the Labor Government has not announced any changes to its policy/plan since December 2009, except that the Minister announced in July 2010 that a legal obligation to commence mandatory ISP filtering will not be imposed until the review [of the type of material included in the Refused Classification category] is completed which will not be until after January 2012.

On 15 December 2009, Minister for Communications, Senator Stephen Conroy announced the third version of Labor's blocking 'plan'. The third version bears zero resemblance to Labor's 2007 election policy and is also significantly different from the intention stated by Senator Conroy in October 2008 (non-optional blocking of "prohibited material"), although the plan still comprises two 'tiers' of blocking:

  • Mandatory/non-optional blocking tier (compulsory for both ISPs and Internet users):
    The Government will introduce legislation to require all ISPs to block RC-rated material hosted on overseas servers (i.e. Refused Classification material, a sub-set of so-called "prohibited content"). A new blacklist of URLs required to be blocked ("the RC Content List") will be compiled/maintained by ACMA. This blocking tier will not be optional for adult Internet users.

    Note: Refused Classification material comprises a significantly wider range of types of content than the 'worst of the worst' shorthand description always used by Senator Conroy. The vast majority of the sub-categories of RC material are not illegal to access/possess under Commonwealth law, nor under the laws of 6 of the 8 Australian States/Territories.
  • Optional blocking tier (optional for both ISPs and Internet users):
    The Government will encourage ISPs to block additional content as requested by households, but this will not be mandatory.
    For those families that wish to have a wider range of material filtered, including possibly X18+ [pornography] and gambling sites, the Government will establish a grants program encourage ISPs to offer these services on a commercial and optional basis.

    As at March 2010 the Government has not stated whether the optional tier will involve blocking of only specific URLs, e.g. on ACMA's (small) blacklist of web page URLs of 'prohibited content' (which includes X18+, R18+ and possibly MA15+), and/or blocking by other means such as commercial filter vendors' much larger lists of URls, or dynamic/real time analysis filtering, or keyword filtering, etc.

The Minister also announced on 15 Dec 2009 that the Government expects to introduce legislative amendments to the Broadcasting Services Act during the Autumn 2010 parliamentary sittings (i.e. February/March 2010) and that [t]here will be a twelve months process of implementation after the passage of the legislation.

However, in late March 2010, the government had still not completed drafting of the proposed legislation. (Note: Passage of legislative amendments requires the support of a majority of the Senate.)

Mandatory/non-optional ISP-level blocking tier

On 15 December 2009, Minister for Communications Senator Stephen Conroy announced in a media release that:

The Government will introduce legislative amendments to the Broadcasting Services Act to require all ISPs to block [Refused Classification] RC-rated material hosted on overseas servers.
...
ISP filtering reduces the risk of Australians being inadvertently exposed to RC-rated material when they are online, Senator Conroy said.

[emphasis added]

At most, it may reduce some accidental/inadvertent access (only to web pages on a relatively small blacklist) but cannot prevent access.

Moreover, it will not even reduce the risk of access to material available via non-Web protocols, i.e. peer to peer (P2P) networks, Usenet newsgroups, IRC (Internet Relay Chat), FTP, Instant Messaging, email, and so on. The Government's 2009 filtering trials found that ISP-level filtering/blocking systems are not capable of blocking material distributed/available via non-Web Internet protocols.

Non-optional for Internet users

As at 15 Dec 2009, the Government intends that this tier will not be optional for adult Internet users (neither opt-out nor opt-in). ISP-level blocking that is neither opt-out nor opt-in for adult end-users was not mentioned in Labor's 2007 election policy but was announced by the Minister in October 2008, 11 months after the Federal election, when the Minister revealed that there would be two blocking tiers, one compulsory for adult Internet users, and the other one optional.

Type of information/material to be blocked

The mandatory blocking tier will aim to block access to Web pages containing information/material that the Government deems unsuitable for adults, i.e. Refused Classification ("RC") material.

Refused Classification material is a wide ranging category of content, vastly broader than the 'worst of worst' shorthand description continually used by Senator Conroy (and hence most mainstream media outlets), and most of which is not illegal to access or possess in the majority of Australian States/Territories. Also, most of the sub-categories of RC involve material legal to sell/publish in other Western democratic countries.

A separate page: "RC" / "Refused Classification" material contains detailed information and examples.

The mandatory blocking tier will not block material unsuitable for children such as X18+ pornography and R18+ material, i.e. it will not block content in any of the other sub-categories of "prohibited content" on ACMA's existing blacklist (which ACMA provides to some filter makers/vendors).

Method of blocking

ISPs will be required to block access to web page URLs on a planned/new secret blacklist, to be known as the "RC Content list", compiled/maintained by the ACMA.

According Senator Conroy, the URLs required to blocked will be those of specific Web pages, not entire Web sites:

...we are only blocking specific web pages, not web sites, so we get a specific URL address and we target the specific URL address.

Quantity of information/material to be blocked

As at 30 Sep 2009, the "RC" component of ACMA's existing (non-mandatory) blacklist was 635 URLs.

Senator Conroy has said the Government expects the new secret "RC Content list" to comprise up to potentially 10,000 URLs, apparently a technological limit. Telstra's report on its filtering trial in 2009 stated it had used a blacklist of 10,000 URLs and that: Telstra believe that the solution trialled would be satisfactory and fit for purpose in Telstra's production environment with the following caveats: The size of the Blacklist doesn't exceed 10,000 entries; The Blacklist doesn't contains pages from heavily trafficked websites. The Gov't commissioned Enex trials in 2009 used a blacklist of only 1,000 pages.

A blacklist of 10,000 URLs is a drop in the ocean given:

  • the Web contains at least one trillion web pages (as in 1,000,000,000,000) unique URLs, and the number is growing by several billion pages per day (reported by Google's Web Search Infrastructure Team on 25 July 2008); and
  • many of the sub-categories of Refused Classification ("RC") involve material legal to sell/publish in other Western democratic countries.

Hence, there are likely to be millions (even billions) of "RC" pages.

Potential for scope creep of mandatory blocking

Is blocking scope creep likely to occur?

Yes. Blocking scope creep is very likely to occur by expanding the breadth of the "Refused Classification" category. This can be, and has been more often than not, achieved by government without enactment of legislation.

In addition, the Government's ISP Filtering FAQ demonstrates the probability of another type of scope creep:

ISP-level filtering will reduce the current inconsistency where Refused Classification-rated material that is hosted in Australia is subject to take-down, while the same material that is hosted overseas remains readily accessible.

[emphasis added]

Exactly the same justification, i.e. reducing inconsistency, could be used by the government, either before or after censorship technology/systems are mandatorily installed by all ISPs, to mandate blocking of other material that is currently subject to take-down from Australian hosted servers, but remains readily accessible on overseas hosted sites. That includes material classified X18+, R18+ and (commercial) MA15+, i.e. so-called prohibited content. This prospect seems likely given Labor's 2007 election policy referred to blocking of any content that has been identified as prohibited by ACMA and in October 2008 the Minister stated that Internet users would not be able to opt out of blocking of "prohibited" material.

According to the Government's ISP Filtering FAQ:

The Government will not expand mandatory ISP-level filtering beyond RC-rated material. This would require changes to the legislation that would have to be supported by both houses of Parliament.

Notably, the Government has not said it will not expand the breadth of the "RC" category (which does not require legislation, see next sub-section). Furthermore, although the current Labor government states it will not extend the blocking scope beyond "RC", a future Labor Party, or any other, government may have different policies. The Labor Government's planned mandatory blocking scheme demonstrates that the Labor Party's censorship policies can change dramatically. For example, the Labor Party voted against the existing Internet censorship legislation which established the current ACMA blacklist, etc.

Would legislation be necessary to extend the breadth of mandatory blocking?

Not necessarily. It would depend on the type of blocking scope creep.

Expanding the breadth of the "Refused Classification" category

  • Expansion without legislation
    The breadth of the "Refused Classification" category can be expanded by government without enactment of legislation. The classification/censorship system is intentionally designed to enable government Censorship Ministers to increase censorship (e.g. by expanding the breadth of "RC") without legislation, and prevent Parliaments from having any control over changes to censorship criteria decided by government Censorship Ministers. This was, for example, the means by which depictions of lawful consenting adult 'fetishes' were moved from the X18+ category into the "RC" category, notwithstanding that Senator Conroy incorrectly claimed in February 2010 that the Classification Board made that decision. (Also, that expansion of "RC" was implemented without evidence, or even substantial indication, that community attitudes had changed in a way that could perhaps have warranted the expanded breadth of "RC" category - evidence was to the contrary).
  • Expansion by Commonwealth Gov't legislation
    The Commonwealth Government/Parliament has the power to unilaterally extend the breadth of Refused Classification material, and a Commonwealth Government that holds the balance of the power in the Senate (as the Howard Coalition Government did during 2004-2007) can extend the breadth of "RC" without the support of any other political party.

    The Commonwealth's powers in the above regard were proven in 2007 when the Commonwealth enacted legislative amendments which added Section 9A to the C'th Classification Act. Section 9A contains definitions of Refused Classification material that are not mentioned in the Classification Code or Guidelines because State/Territory Censorship Ministers refused to change the Code and Guidelines to suit the Commonwealth Government's wishes. These highly publicly controversial amendments made a mockery of the so-called national 'co-operative legislative scheme for censorship'.

Expanding blocking to other types of material (more than "RC")

Assuming the current government's planned legislation will limit blocking to "RC" material and not contain any loopholes allowing extension to other categories of content, then it could not be extended to other categories of content/material without legislation supported by both houses of Parliament.

However, a government could enact such legislation, without the support of any other political party, if/when the government has a majority in both the House and Senate (as the Howard Coalition Government had during 2004-2007).

What is "RC" / "Refused Classification" material?

Refused Classification ("RC") material is a wide ranging category of content which includes material deemed to offend against the standards of morality, decency and propriety generally accepted by [hypothetical] reasonable adults, in the opinion of some or all of the members of the government appointed Classification Boards. (Classification Boards' decisions are not necessarily made by majority decision of all members, and even when they are, sometimes the decision is made on the deciding vote of one person.)

Almost all sub-categories of RC material are not illegal to access or possess in the majority of Australian States/Territories. Also, most of the sub-categories of RC involve material legal to sell/publish in other Western democratic countries.

While Communications Minister Senator Conroy (and various governmental documents) frequently describe RC material as being material that includes child sex abuse content, bestiality, sexual violence including rape and the detailed instruction of crime or drug use, it should be noted the word includes (rather than e.g. contains/comprises) is used because the foregoing brief outline describes only a small sub-set of the wide variety of material in the RC category. Senator Conroy knows that, as evidenced by his remarks on national TV, and in response to Senate question on notice, in 2009. However, in February 2010, Senator Conroy made a number of false and misleading claims concerning RC material and the Classification Board on ABC TV Hungry Beast.

For detailed information about Refused Classification ("RC") material, see separate page:

Gov't commissioned 2011 review of Refused Classification criteria

This review, announced in mid 2010, did not commence until after 24 March 2011 at which time the government asked the Australian Law Reform Commission to conduct a review of the National Classification Scheme and report by 30 January 2012.

On 9 July 2010, (a week before announcement of the 2010 Federal election date), the Minister Senator Conroy issued a media release stating:

Senator Conroy said ...he has consulted with the Minister for Home Affairs, Brendan O'Connor, and the Government will recommend to States and Territory Ministers that a review of Refused Classification be conducted.

Some sections of the community have expressed concern about whether the range of material included in the RC category, under the National Classification Scheme, correctly reflects current community standards, said Senator Conroy.

In order to address these concerns, the Government will recommend a review of the RC classification to State and Territory Ministers, be conducted at the earliest opportunity. The review would examine the current scope of the existing RC classification, and whether it adequately reflects community standards.

As the Government's mandatory ISP filtering policy is underpinned by the strength of our classification system, the legal obligation to commence mandatory ISP filtering will not be imposed until the review is completed. 

Source: Senator Conroy, media release, 9 July 2010

On 10 December 2010, Ministers met and the SCAG Communique outlining decisions made at that meeting states:

The Operation of the National Classification Scheme
Ministers agreed on the need to reform the National Classification Scheme to accommodate and better anticipate technological and other developments. Ministers agreed to the Commonwealth referring the matter to the Australian Law Reform Commission.

Review of RC (Refused Classification) Classification
Ministers agreed that the broad review of the National Classification Scheme would include consideration of the classification categories, including the content of the RC (Refused Classification) classification, for films, computer games and publications.

Eventually, on 24 March 2011, the Federal Attorney-General and Minister for Home Affairs and Justice (and Censorship) announced a comprehensive review of the National Classification Scheme to be conducted by the Australian Law Reform Commission (ALRC) with a final report due to be delivered to the government by 30 January 2012.

On 20 May 2011, the ALRC issued a National Classification Scheme Review Issues Paper (ALRC IP 40, 2011) and called for public submissions in response by 15 July 2011. More information about the ALRC review is available on the ALRC's web site:
    ALRC National Classification Scheme Review.

The ALRC received over 2,500 submissions, most of which are available on the ALRC web site.

ALRC Report: Classification-Content Regulation and Convergent Media (ALRC Report 118)

The ALRC's Final Report: Classification-Content Regulation and Convergent Media (ALRC Report 118) became available on 1 March 2012 when it was tabled in the Federal Parliament.

The ALRC report contains 57 recommendations concerning classification, and as at 9 November 2012, the Federal Government has not published its response to any of the recommendations.

In relation to the "Refused Classificaton" category, the ALRC said that: Text analysis of the many submissions received to the Issues Paper suggested that the majority of respondents who commented on the scope of the RC category considered it to be too broad - at least for the purpose of prohibiting online content. (p.269) and made the following recommendations:

Recommendation 11-1 Under the Classification of Media Content Act, the 'Refused Classification' category of content should be named 'Prohibited'.
Recommendation 11-2 The Classification of Media Content Act should frame the 'Prohibited' category more narrowly than the current 'Refused Classification' category. ...

If the Federal Government decides to implement the above 2 recommendations, under existing law at November 2012, the changes would, first, have to be unanimously agreed to by the State and Territory Censorship Ministers (SCAG) which typically only meet 2 or 3 times per year.

The ALRC did not make any recommendations in connection with the Government's proposed mandatory ISP-level blocking scheme. However, ALRC comments included the following:

12.31 If the Australian Government were to implement a mandatory ISP-level filtering scheme, as has been proposed, then content should also generally be classified Prohibited before ISPs are required to block or filter it. The ALRC made a similar proposal in the Discussion Paper. Proposed accountability and transparency measures, outlined later in this chapter, also provide for the classification of some content before being added to the proposed list of content that must be filtered.
...
12.65 If ISPs were required mandatorily to filter all Prohibited or RC content, it is likely that certain content would have to be prioritised - and perhaps only a subcategory of Prohibited content would in fact be filtered. For example, the ACMA has recently reported that, of the 1,957 items of prohibited or potentially prohibited content it identified in 2010-11, 1,054 items were determined to be offensive depictions of children, whereas only 68 items depicting a sexual fetish were determined to be RC content.
...
12.71 Given the volume of Prohibited content on the internet, if ISPs were required mandatorily to filter Prohibited content, the Regulator may recommend that particular subcategories of Prohibited content will be prioritised. The selection of such subcategories should be carefully assessed. The ALRC notes in particular the community concerns about actual child sexual abuse and non-consensual sexual violence. In defining such a subcategory, the Regulator might also have regard to the types of content that are now the focus of international efforts to curb the distribution of child abuse material. The subcategory of sufficiently serious content, discussed above, might also be useful for this purpose.

Planned new secret ACMA blacklist - "RC Content list"

What is the "RC Content list"?

This is a planned new secret blacklist of "RC" material to be created for the purposes of the compulsory/non-optional ISP blocking tier, and compiled/maintained by the ACMA. The government announced on 15 Dec 2009 that it will introduce legislation which will enable the creation of an RC content list.

The RC Content list will be compiled from:

  • public complaints made to the ACMA about material that is or is considered likely to be "RC"/"Refused Classification"; and
  • The Government will also add the specific internet addresses (URLs) of known child abuse material through sharing lists with "highly regarded" (currently unnamed) international agencies after an assessment of the classification processes used by these agencies (according to the Minister's media release of 15 Dec 2009).

Presumably the RC Content list will initially be populated with URLs of RC content on ACMA's existing blacklist, which contained approx. 635 "RC" URLs at 30 Sep 2009 (a sub-set of the then 1175 total "prohibited content" URLs).

What accountability and transparency measures, if any, will apply to the "RC Content list"?

It is unlikely that there will be any effective transparency measures given the government has stated that list of URLs on the "RC Content list" will be secret.

The lack of accountability and transparency measures applicable to ACMA's existing secret blacklist (which ACMA provides to filter vendors for voluntary use by Internet users) has been the subject of considerable public criticism, especially since the government announced its (previous 2007-2008) intention to use that existing list for mandatory blocking.

The content of ACMA's existing secret blacklist is not subject to any form of scrutiny or oversight; ACMA's 'classification' decisions cannot be subjected to appeal or review; and Freedom of Information (FOI) legislation was changed in 2003 to exempt all information about content that ACMA has added to its blacklist, (including content that is legal to sell/exhibit/distribute offline), from disclosure under FOI. Also in March 2009, as a result of unusual circumstances, it became publicly known that some web pages had been incorrectly added to ACMA's secret blacklist. For more information, see separate page: About the ACMA's Blacklist of "Prohibited Content".

Gov't public consultation on "RC Content list" accountability and transparency measures

On 15 Dec 2009, the Government issued a public discussion paper on additional measures to improve the accountability and transparency of processes that leads to RC-rated material being placed on the RC Content list with a public submission closing date of 12 Feb 2010. The paper contained a number of 'options' that the Government said it may or may not decide to implement, but used vague and/or misleading terms and failed to explain how the government envisaged that some 'options' would or even could operate in practice. Moreover, none of the options resolve the problems/issues inherent in mandatory government censorship by means of a secret blacklist. (The 'consultation' also had very narrow terms of reference - limited to accountability/transparency of the blacklisting process, not the overall mandatory blocking proposal/plan).

Reportedly, the government received 174 submissions (see: "Conroy's internet censorship agenda slammed by tech giants", Asher Moses, Sydney Morning Herald, 23 Mar 2010).


[Note: The writer (provider of this website) provided some assistance to EFA in relation to preparation of some sections of the above EFA submission, but was not the principal author, nor involved in EFA policy formulation.]

Would mandatory blocking be limited to 'child pornography'/ 'worst' material?

No. The Minister's/government's announcement of 15 December 2009 makes absolutely clear that their intention is to require mandatory blocking of all of the sub-categories within 'Refused Classification', not only the 'worst of the worst' that Senator Conroy refers to when he describe[s] it in shorthand, as does the Government's December 2009 consultation paper.

"RC material" (and the broader category "prohibited content" referred to in Labor's 2007 election policy) is a vastly wider category of material than both 'child pornography' and Senator Conroy's frequently used 'worst of the worst' shorthand description of the types of material that would be blocked.

The Minister has frequently referred to ISP blocking of 'child pornography' in an attempt to stop public criticism and opposition, for example:

 Labor makes no apologies to those that argue that any regulation of the internet is like going down the Chinese road, [Senator Conroy] said.
If people equate freedom of speech with watching child pornography, then the Rudd-Labor Government is going to disagree. 

Senator Conroy's attempt to silence dissenting voices failed spectacularly. Instead it triggered widespread criticism of his attempt to label people opposed to Labor's plan as people who want to view child sexual abuse material.

Since 2007 to date (March 2010), the Minister and government documents have used misleading terminology apparently intended to mislead the public about the type and breadth of content to be blocked by the mandatory/non-optional blocking tier. During 2007-2009 this included using the terms "prohibited" and "illegal" material interchangeably, although so-called "prohibited content" is very different from "illegal" material) and since 2009 using a shorthand description of "Refused Classification"/"RC" material which significantly understates the breadth of the "RC" category.

Misleading statistics about child pornography on Web sites

Is it true that "100,000 commercial websites offer child pornography"?

Highly unlikely. The '100,000' estimate ('reported' by Australian news media and some other commentators in 2008) originated in or before October 2000 and has since been re-phrased to include the words "commercial" and "offer" and is often mis-attributed to overseas law enforcement agencies. Even if the estimate in 2000 had any factual basis, since then there has been a massive increase in international law enforcement agencies' co-operation and activities to shut down such web sites.

Considerably more recent estimates/statistics (late 2007-early 2009) place the number of commercial websites between 150 and 1,144-2,204, the majority of which remain 'live' for less than 50 days.

For detailed information about the origin and history of the 100,000 and similar out-of-date, false and/or misleading 'statistics' see the following research paper on this site:

Furthermore, Australian news media quite often incorrectly report that persons arrested had been using 'web sites' to distribute or obtain child sexual exploitation/abuse material, when in fact they had been using non-Web Internet technologies that will not be affected by the Government's mandatory ISP blocking system. All indications are that the vast majority of trafficking in child sexual abuse material does not occur via Web sites. For more detailed information, see later section:

Ineffectiveness of mandatory blocking in protecting children online

Will the Government's mandatory ISP-level blocking make children safe, or significantly safer, online?

No. It would be utterly useless for protecting children. While Senator Conroy has remarked on a number of occasions that the government knows it is not a silver bullet, in fact, it would be a blank.

The government's mandatory ISP-level blocking, if implemented, is extremely likely to give a very false sense of security to those parents and carers who lack adequate knowledge/understanding about Internet technologies and/or are not aware of the limitations of the government's compulsory blocking system. It would place some children at greater risk if parents reduce monitoring etc. of their children's Internet use due to a mistaken belief that the government has solved, or even reduced, the problem.

Mandatory blocking:

The inability of filtering to adequately protect children was discussed on SBS TV Insight on 31 March 2009:

SUE MCLEAN (Former Victorian Police Officer/Cyber Safety Advisor): ...I think it's time that a lot of parents stepped up to the plate and really took an interest to what their children are doing online.

JENNY BROCKIE (Program Host): I guess the reason I'm asking you this is because the focus of this discussion has been very much about online websites, accessing websites. And I'm just wondering how much the filter is going to address some of the other danger that kids face - for example, you know, peer-to-peer file-sharing, link-sharing.

SUE MCLEAN: File-sharing applications, peer-to-peer networks, using Kazaa or live Limewire to illegally download music for their iPods.

JENNY BROCKIE: Chat rooms?

SUE MCLEAN: Chat rooms where they get images of child abuse and horrendous pornography comes with the file - we're not addressing that. There are those sort of things online that filtering is not going to cover. ...

JENNY BROCKIE: OK. But can you filter those dangers to children online?

SUE MCLEAN: Absolutely not. Not all of them.

JENNY BROCKIE: You can't? Stephen?

STEPHEN CONROY: We've never tried to suggest that a filtering - whether it be home-based or ISP - can deal with peer-to-peer. I keep hearing this argument day in, day out. It will never do this. We've never said it would.

Source: "Blocking the Net", Insight, SBS TV, 31 March 2009

Since the mid 1990s to date, Australian government attempts to protect children online have primarily focussed on attempting to censor content available on Web pages.

Meanwhile, it has become increasingly apparent that there are other, arguably more serious, risks to children's safety and well-being that cannot be eliminated or even reduced by (attempting to) block access to Web pages that contain material harmful or disturbing to minors (whether the blacklist is small or huge). These risks include bullying messages received by email, Instant Messaging, (and mobile phone SMS), etc; efforts to 'groom' teenagers and younger children for sexual purposes via use of the same communications technologies; and the use of such technologies by minors themselves to distribute partially or completely nude photographs of themselves and/or information about their physical whereabouts.

Parents and other carers who believe it will be safe to allow children unmonitored/unsupervised access to the Internet, if/when the Government implements its compulsory ISP-level web page blocking plan, are under a very mistaken impression. They would be well advised to view, or read the transcript of, ABC TV's 4Corners program: "The Bullies' Playground", broadcast on 6 April 2009 (a well-informed, balanced and non-hysterical report) to gain an understanding of the inherent risks in allowing teenagers and younger children to use the Internet without parental interest/attention and/or monitoring/supervision of such use.

Ineffectiveness of ISP-level 'blocking' in preventing access

Would mandatory ISP-level blocking effectively block/prevent access?

No, and the Government does not even claim it will. Senator Conroy's media release of 15 Dec 2009 stated ISP filtering reduces the risk of Australians being inadvertently exposed to RC-rated material when they are online (emphasis added).

On the same day, the Government released the Enex Testlab report on the government's 2009 ISP 'live pilot' filtering trial. Also, Telstra issued a report on its filtering trial (conducted separately from the government trials and in a test, not 'live'/real world, environment).

Both Enex and Telstra reported that the filtering/blocking systems trialled were incapable of preventing circumvention/bypassing of the blocking systems:

  • Enex reported:
    A technically competent user could, if they wished, circumvent the filtering technology.
    In that regard, filters trialled for the purpose of mandatory blocking of URLs on an ACMA blacklist were only capable of preventing 3 to 6 of 37 circumvention attempts tested by Enex. Enex also found that filters trialled for the purpose of optionally blocking a wider range of content (more than URLs on an ACMA blacklist) were more successful at preventing circumvention (preventing 14 to 35 of 37 attempts) but that [a]s a general rule, there appears to be a relationship between measures to counter deliberate circumvention and impact on internet performance (i.e. stronger circumvention prevention measures can result in greater degradation of internet performance.

    While the Enex report and various government documents imply that only "technically competent users" can bypass blocking, that includes some, possibly many, school children and, in any case, anyone can find out about numerous methods, some very simple, by merely doing a search on Google or another search engine for information on how to circumvent/bypass filtering.
  • Telstra reported:
    Given that the circumventions to this solution [are] well known and in plain sight, circumvention testing was not performed.

In addition, Enex reported:

  • Telstra found its filtering solution was not effective in the case of non-web based protocols such as instant messaging, peer-to-peer or chat rooms. Enex confirms that this is also the case for all filters presented in the [Enex/government] pilot.
  • Telstra reported that heavy traffic sites could overload its trial filtering solution if included in the filtering blacklist. This is also the case for all filters presented in the [Enex/government] pilot.

    Telstra's report stated: [I]t is possible for the solution to fail if pages from a heavily trafficked site are added to the blacklist. This is due to volume limitations of a typical proxy server. These sites serve video content to end users. The volume of video traffic would be likely to overwhelm a proxy server. and Telstra believe that the solution trialled would be satisfactory and fit for purpose in Telstra's production environment with the following caveats: The size of the Blacklist doesn't exceed 10,000 entries; The Blacklist doesn't contains pages from heavily trafficked websites.

Moreover, the Government's admission that mandatory blocking will only "reduce the risk" of "inadvertent" access to web pages, i.e. not prevent even inadvertent access, appears to acknowledge the utter unlikeliness of the system actually providing protection, due to the relatively small number of web pages to be blocked. ACMA has been compiling a list of URLs for a decade, and its blacklist has always contained only about 500-700 URLs of "RC" content. However, the Web contains at least one trillion web pages (as in 1,000,000,000,000) unique URLs, and the number is growing by several billion pages per day (reported by Google's Web Search Infrastructure Team on 25 July 2008) and many of the sub-categories of "RC" involve material legal to sell/publish in other Western democratic countries. Hence, there are likely to be millions (even billions) of "RC" pages - blocking about 700 pages, or even 10,000, is a drop in the ocean.

The writer considers the government's web page 'blocking' plan is the equivalent of placing road blocks at street intersections which currently have traffic lights for the purpose of preventing transportation of illegal drugs.

One of the (many) serious risks/issues in implementation of the govt's plan, is that technologically unknowledgeable parents will not realise how ineffective the government's mandatory "blocking" is and therefore be lulled into a false sense of security/reducing their vigilance, while their children are very likely to already know, or find out very quickly, how to bypass/circumvent ISP-level 'blocking'.

Would ISP-level blocking prevent access to child sexual abuse material?

No. As detailed above, the Government's planned mandatory ISP 'blocking' system can only reduce the risk of accidental/inadvertent access (and can easily be bypassed/circumvented), and will apply only to material on Web sites. ISP-level filtering systems/products are not capable of even reducing the risk of access to material available via non-Web Internet technologies.

However, all indications are that the vast majority of trafficking in child sexual abuse material does not occur via Web sites, and therefore so-called 'blocking' of web pages will have minimal if any impact on access to such material (either accidental or intentional), let alone on reducing child sexual abuse.

The mainstream media constantly talk about web sites as if "the Web" = "the Internet". Quite often, news reports incorrectly claim/report that persons arrested had been using 'web sites' to distribute or obtain child sexual exploitation/abuse material, when in fact they had not been using web sites but an entirely different Internet technology (for examples of Australian media misreporting, see separate page). Hence, rarely is public and political attention drawn to the problem of child sexual abuse material (non-commercial) trafficking via non-Web Internet protocols such as peer to peer (P2P) networks, Usenet newsgroups, IRC (Internet Relay Chat), FTP, Instant Messaging, email, etc.

Filters don't work at all re P2P networks

As Australian Federal Police ("AFP") Acting Commissioner Neil Gaughan said in December 2008, filters don't work at all in relation to preventing access to material distributed via P2P networks:

Neil Gaughan [Aust. Federal Police]: Peer to peer technology allows Internet users to share files without actually accessing a central network ...
Philip Clark: So filters and all that sort of thing don't work?
Neil Gaughan: They don't work at all. ...
Neil Gaughan: ...we have people operating in undercover capacity who actually get online and...pose as paedophiles and assist and breakdown those barriers. ... [We] use terminology to make people believe we're actually involved in that trading and as such people will share files with us. Once that's occurred we move forward and take the necessary action.

[emphasis added]
Source: [BROKEN LINK Mp3 audio] Interview - AFP Acting Commissioner Neil Gaughan re 'Operation Resistance', Philip Clark, 2GB Radio, 11 Dec 2008

Unlikelihood of finding/stumbling across child sexual abuse material on Web sites

Australian Federal Police officers have also remarked on a number of occasions about the unlikelihood of finding child sexual abuse material on Web sites via Google search, or otherwise stumbling across such material on Web sites. For example:

4 June 2008:

Mick Keelty [AFP Commissioner]: ...you're not going to put a Google search in for example and find some of this stuff, you're going to find it on unobvious sites, secreted in other images, or accessed by another way that the [child porn] network understands. 

Source: [BROKEN LINK Mp3 audio] Australian Federal Police media briefing re 'Operation Centurion', LiveNews/Macquarie National News, 4 June 2008

15 March 2009:

Wendy Carlisle [ABC Background Briefing]: The peddlers of child pornography are smart, and technically very advanced. And when they set up sites on the web, they don't signpost it with a name easily found on Google. They hijack innocent websites, and engage in sophisticated hit-and-run operations.

Neil Gaughan [Aust. Federal Police]: A couple of investigations we've done recently have been people hacking into websites, and then downloading child abuse material on to those websites, and through word of mouth and through instant messaging and the like, people that like to look at these type of images have gone in and downloaded the images from that hack website. Now the hack website is not in any way, shape or form, involved in the distribution.

Wendy Carlisle: They're just the temporary host?

Neil Gaughan: Exactly right. They are the temporary host. The other thing we are finding now is the proliferation of this type of material through peer-to-peer networks. Most people would be familiar with things such as LimeWire, which is a video sharing, which does a good purpose in life, but unfortunately we have a number of applications where people utilise them, to actually share this type of material.
...
Tim [Aust. Federal Police]: ...A lot of these people find the sites by going into chat rooms that are on the topic of child pornography, they will sort of trade the names of the sites.

Wendy Carlisle: So they're secret websites, yes?

Tim: For sure, for sure. But fully accessible by the public if they know...

Wendy Carlisle: If you knew the keywords?

Tim: If you knew what you were looking for, or if you had the IP address or if you had the actual URL, the domain name of the site, you could find it.

Wendy Carlisle: Would it be easy to stumble across?

Tim: No, it's not that easy to stumble across. Often we hear the excuse I was just searching for something, for maybe adult pornography and I stumbled across this child pornography site, and that's why.

Wendy Carlisle: That doesn't wash?

Tim: That really doesn't wash. It's an excuse. And for our forensic investigators, we can tell exactly what search terms people have been using, and what exactly they have been looking for, so it's very easy to prove what they're actually searching for and how they found it.

[emphasis added]
Source: "Conroy's clean feed", Background Briefing, ABC Radio National, 15 Mar 2009

Is ISP-level blocking more difficult to bypass than PC-level blocking?

No. Most PC-level filtering/blocking products are more difficult to bypass than ISP-level blocking. This is because commercial PC-level filtering/blocking products endeavour to block access to numerous legitimate online services and tools that can also by used to bypass filtering - and the vendors engage in a constant battle to identify and block new services. While blocking such services/tools may be appropriate in the case of young children's Internet use, it would not be appropriate for the Federal Government to mandate that ISPs block everyone's access to them, nor criminalise use of same, and the Communications Minister has stated (in answers to Senate Questions on Notice) that the government does not intend to do so.

Hence, in the case of the government's proposed ISP-level compulsory/non-optional blocking, it will be easier for children to bypass than properly installed PC-level blocking products (and easy for everyone to bypass) because the filter implementation would not, according to the government, even attempt to prevent use of the many simple tools and services, such as language translation services, which can also be used to circumvent ISP-level blocking, let alone attempt to prevent use of proxy servers and VPNs.

Some people assume that ISP-level blocking would be more effective than PC-level filtering as a result of Australian media reports in 2007 about a 16 year old boy who disabled a PC-based filter. However, in 2009 he said that he has no doubt that the government's ISP level blocking will be able to be bypassed. Some (false) perceptions that ISP-level blocking must be effective arise from the marketing claims of some filter vendors and/or because ISP-level filtering systems have been implemented in some other countries. (For more information about these claims and systems, see next section, below.)

Sources of false perceptions about effectiveness of ISP-level 'blocking'

U.K. ISP-level 'blocking'

While some people assume that 'blocking' at the ISP server level must be effective because it has been implemented by some ISPs in the U.K. and a few other countries, in relation to solely child sexual abuse material, neither those ISPs nor the U.K. Internet Watch Foundation ("IWF") claim that the ISP 'blocking' systems actually prevent access. ISP 'blocking' systems can only prevent accidental/inadvertent access, as British Telecom (BT) and the IWF admit:

Blocking is designed to protect people from inadvertent access to potentially illegal images of child sexual abuse. No known technology is capable of effectively denying determined criminals who are actively seeking such material; only removal of the content at source can achieve that goal.

Source: IWF FAQ: 'Child Sexual Abuse Content URL List', Page Last Modified: 8 January 2009

 We've built a system that won't stop the hardened paedophile, admits [BT's] Galvin, who says that CleanFeed's main aim is to stop accidental access from users following links such as those in spam email. ...

Source: "Back door to the black list", SA Mathieson, The Guardian UK, 26 May 2005

While the above BT/IWF statements tend to imply that only 'the hardened paedophile' and/or 'determined criminals' can circumvent ISP 'blocking', anyone - child or adult - can do so if they wish. Purpose-built software/tools and step by step guides and tips, etc., for bypassing ISP/server level blocking have been available online for many years - ever since various authoritarian/totalitarian governments commenced attempting to censor their citizens' use of Internet communications technologies for reasons completely unrelated to child sexual abuse material.

Moreover, the 'blocking' system implemented by BT (reportedly costing approx. AU$1 million to implement) and similar systems implemented by some other ISPs in the U.K, and in a few other countries, can prevent only accidental access to child sexual abuse content on Web pages, i.e. made available via the HTTP protocol. ISP filtering/blocking systems are incapable of preventing even accidental access to content distributed via numerous other Internet protocols, such as via peer-to-peer ("P2P") networks, Usenet newsgroups, IRC (Internet Relay Chat), FTP, Instant Messaging, and email, etc.

China's 'Great Firewall'

Some people may assume that 'blocking' at server level is effective because it has been implemented by governments in countries such as China, however as James Fallows (The Atlantic's National Correspondent based in Shanghai) reports:

China's Great Firewall is crude, slapdash, and surprisingly easy to breach. ...

As a practical matter, anyone in China who wants to get around the firewall can choose between two well-known and dependable alternatives: the proxy server and the VPN [Virtual Private Network]. ...

As a technical matter, China could crack down on the proxies and VPNs whenever it pleased. Today the policy is: if a message comes through that the surveillance system cannot read because it's encrypted, let's wave it on through! Obviously the system's behavior could be reversed. But everyone I spoke with said that China could simply not afford to crack down that way. Every bank, every foreign manufacturing company, every retailer, every software vendor needs VPNs to exist, a Chinese professor told me. They would have to shut down the next day if asked to send their commercial information through the regular Chinese Internet and the Great Firewall. Closing down the free, easy-to-use proxy servers would create a milder version of the same problem. Encrypted e-mail, too, passes through the GFW without scrutiny, and users of many Web-based mail systems can establish a secure session simply by typing https: rather than the usual http: in a site's address-for instance, https://mail.yahoo.com. To keep China in business, then, the government has to allow some exceptions to its control efforts-even knowing that many Chinese citizens will exploit the resulting loopholes.

Source: "The Connection Has Been Reset", James Fallows, The Atlantic Monthly, 8 February 2008

16 year old Australian disabled a PC based filter product in 2007

Some, probably many, assumptions that PC-based blocking is more easily bypassed than ISP-level blocking arise from Australian media reports in 2007 that a 16-year old, Tom Wood, bypassed a PC-based filter made available free-of-charge by the former Coalition Government in 2007.

The Federal Labor Party (then Opposition) made Tom Wood their 'poster boy' in promoting the impression that PC-based filtering was ineffective because one 16 year old had bypassed a PC-based filter and therefore, according to the Labor Party, ISP-level filtering would be more effective. (Some Labor Party politicians may be well advised to read the Safety Tips on Parry Aftab's WiredSafety.org site in relation to protecting children aged 16 and over which include: All bets are off. If they have earned your trust, give it to them. If not, unplug the computer and take away their cell phones and interactive gaming devices.)

In 2007, 16-year old Tom Wood, was able to bypass the particular filter product in less than 30 minutes because he had 'Windows Administrator privileges' on the subject PC (computer), which he said (and the writer does not doubt) was the default situation when Windows is installed on a PC, i.e. the situation if the person installing Windows does not configure Windows to limit administrator privileges to specified users of the PC (e.g. parent/s). To the writer's knowledge the particular PC-based filter was not publicly named and it is unknown how many other PC-based filters could, or still can, be disabled in similar circumstances, nor whether administrator privileges continues be the default Windows configuration on installation.

Notably however, Tom Wood does not contend that ISP-level blocking would be immune from circumvention by minors or adults. To the contrary, on SBS TV Insight on 31 March 2009, Tom Wood said there is no doubt people would be able to bypass ISP-level blocking:

TOM WOOD: ...I think it's naive to think that any filter will ever be foolproof. PC-based filters like the ones provided previously by the government could be completely disabled like they weren't even there, which takes a bit of time and is moderately complex. But it doesn't have any extra side effects.

JENNY BROCKIE: What do you think will be the outcome if this goes ahead? What would you predict or what will you be doing? Will you be trying to get around it just to prove a point?

TOM WOOD: Well, of course I'll try. And I think there's no way it'll be foolproof because the difference is, here, you can't disable it. But there's different things you can do to bypass it, such as proxy sites - we don't know the exact technology and what will ... get past it, but have no doubt you will be able to. But it will make things slower and have further privacy risks - it might be a bit more secure overall, but I think it's just naive to think anything will be completely foolproof.

JENNY BROCKIE: And how old are you, Tom?

TOM WOOD: 17.

JENNY BROCKIE: OK. That's an interesting note to end on.

[emphasis added]
Source: "Blocking the Net", Insight, SBS TV, 31 March 2009

Netsweeper Vendor / London Grid for Learning & BNSL ISP India

Some perceptions that ISP-level blocking is difficult, or even impossible, to bypass may arise from reader comments posted on numerous Australian newspaper sites, blogs and other discussion fora during 2008/09 by person/s apparently involved with the sale of Netsweeper, a Canadian made censorware product. The commentator/s use pseudonyms including Observer, Technology vendor guy of Melb, Mike the Observer, Mike the Participant, Security Techo, etc, and refer to the London Grid for Learning and/or India's BNSL ISP, both of which use Netsweeper (which is rarely named in the person/s' posts). For example:

One of the products we have tested and used ...
One single 2684 schools network in the UK use them, and have for nearly seven years, because they do recognise and block anonymous proxies, are extremely difficult to get around

Just for public information: 1. Quality ISP based filters have the ability to block current workarounds such as anonymous proxies and site redirectors pretty easily. ... 5. If any interested party really wants to know how something like works with a multi-million user network and central (ISP style) based filtering, then check out the results from the London Grid for Learning project.

The London Grid for Learning ("LGFL") uses Netsweeper and comprised 2684 schools (as stated in a Netsweeper case study which was publicly accessible in December 2008 but no longer is (Google cache copy still existed as at mid April 2009).

Claims that Netsweeper is extremely difficult to get around are contradicted by reports by school system administrators on the UK EduGeek forum about Netsweeper being bypassed by school children, for example:

  • Netsweeper vs Yahoo Answers, EduGeek.net Forum, 11 March 2009
    Its the old chestnut of students finding proxies...
  • Students Accessing restricted Sites, EduGeek.net Forum, February 2008
    ...Also Proxy Sites... Netsweeper doesn't seem to keep up and when you block one ten more appear.. I believe there are mailing lists on proxy sites that emails new updated proxy sites to the list members.. and the students get these at home and use them on site. ...
  • EMBC - filtering - not fit for purpose?, EduGeek.net Forum, 29 Jan 2008
    Netsweeper treats parts of Google as if an anonymous proxy website
  • Web Filtering, EduGeek.net Forum, 22 Apr 2008
    Broadband Sandwell use Netsweeper which isn't amazing. The students are quickly realising that if they use https:// rather than http:// most proxys that BB Sandwell have blocked work... Always good having a walk around the school at lunch, can get all the new proxy aviodance websites ...
  • Proxy Heads Up, EduGeek.net Forum, 31 December 2007
    Just found the kids using google translate as a proxy. This should be fun as there are loads of google country domains that will need to be blocked. ... We use...the LGFL proxy. Netsweeper.
  • youtube - we're sorry this video is no longer available, EduGeek.net Forum, 20 Mar 2009
    Netsweeper started blocking all video files on YouTube

As is evident above, server level filtering (whether by ISPs or schools) is easily circumventable unless the system blocks services such as Google translate, blocks use of secure servers (httpS://) and the filter vendor and school (or ISP) system administrators engage in a constant battle to identify and block proxy servers, etc. Also, while a school system administrator can walk around the school at lunch times (as mentioned above) with the aim of seeing/finding out what new proxies etc. students are using to bypass filtering and then block those, obviously ISP system administrators cannot walk around the homes of the ISPs' customers.

Bypassing / circumventing ISP-level blocking

Overview

Numerous online services/tools can also be used to bypass ISP-level blocking. These include language translation, privacy, security, caching, etc. services such as Google Translate, Yahoo! BabelFish Translate (e.g. select from any language to English), Google Cache, anonymous proxy servers, secure virtual private networks ("VPNs"), etc.

Some, probably most, commercial PC-level and server-level filtering/blocking products endeavour to block access to the above types of services/tools and vendors and system administrators engage in a constant battle to identify and block new services. While blocking such services/tools may be appropriate in the case of young children's Internet use, it would not be appropriate for the Federal Government to mandate that ISPs block everyone's access to them, nor criminalise use of same, and the Communications Minister has stated (in answers to Senate Questions on Notice) that the government does not intend to do so:

Q 831: (4) Does the Government propose, or is it considering, the criminalisation of circumventing or attempting to circumvent the proposed filtering regime.

A 831: (4) No.

Q 834: (8) Will access to services such as Google Translate, Google Cache and similar tools provided by various other search engine providers be blocked to prevent circumvention of the filter.

A 834: (8) No.
Source: Senator Stephen Conroy, answers to Questions on Notice, Senate Hansard, p.127 & 130, 3 February 2009 [PDF 1.4Mb]

Moreover, even if at some time in the future an Australian Government becomes silly enough to decide to attempt to block language translation services, proxy servers etc., Australians will be able to bypass blocking by means of the same specially designed circumvention tools and services originally developed for use by people in countries such as China and Iran (see below).

Detailed guides on methods of bypassing server level blocking also exist.

Purpose-built circumvention software/services

The Global Information Freedom Consortium partners have developed many anti-jamming (anti-censorship) products which are made freely available to everyone.

The Consortium's mission is to build a pioneering online platform that breaks down the Great Firewalls blocking the free flow of information penetrating into, moving within, and originating from closed societies (e.g., China and Iran) via the Internet.

As reported in the New York Times "With new software, Iranians and others outwit net censors" on 30 April 2009:

College students discovered the [free software] first, then spread it through e-mail messages and file-sharing. By late autumn more than 400,000 Iranians were surfing the uncensored Web.
The software was created not by Iranians, but by Chinese computer experts volunteering for Falun Gong, the spiritual movement suppressed by the Chinese government since 1999. They maintain a series of computers in data centers around the world to route Web users' requests around censors' firewalls.
...
The creators of the software seized upon by Iranians are members of the Global Internet Freedom Consortium, based largely in the United States and closely affiliated with Falun Gong.

In March 2009, ITPro UK reported in "Kids bypass school internet security controls" that school children were using software such as Ultrasurf (made by a member of the Global Internet Freedom Consortium) to bypass blocking in schools and that Ultrasurf, for example, can be passed as a 100kb download on a USB key between pupil to pupil.

Guides to bypassing ISP-level blocking

While the above guides are relatively recent versions, such guides have long been available, as noted in 2006 by the former (Coalition Gov't) Communications Minister Senator Helen Coonan:

...Revealingly, no advanced economy in the world has introduced mandatory server level filtering. And even where it has been introduced - in countries such as Saudi Arabia, China and Pakistan - it has proven problematic.
All these countries have experienced high levels of circumvention of these controls with industrious users using the phone system to contact an ISP in another country or using proxies to bypass the controls.
...
And Internet users can already access step by step guides for side-stepping ISP filtering from the Internet itself.

[emphasis added]

Polls/Surveys about mandatory ISP blocking

Two surveys/polls were referred to in an on-camera interview of Senator Conroy by Fairfax Media's national Canberra bureau chief, Tim Lester (made available on Fairfax newspaper sites on 1 April 2010). Tim Lester referred to a Fairfax online poll conducted during 30-31 March 2010 which found 96% of 45,154 respondents opposed to the government's mandatory filtering/blocking plan. The Minister suggested that result was due to a lot of misinformation being spread and claimed that a survey commissioned by ABC TV Hungry Beast program showed that 80% of Australians supported the government's filtering/blocking plan.

Information about these polls is below.

[Note: The writer considers that any polls/surveys about the government's mandatory ISP blocking plan are highly unlikely to provide an accurate proportional representation of public opinion. Among other issues, telephone surveys of randomly selected interviewees will not do so due to the impossibility of providing sufficient accurate information during a short telephone call, and online polls on newspapers sites etc. are likely to be voluntarily responded to by a larger percentage of people who have already had sufficient interest in the issue to inform themselves about same.]

ABC TV Hungry Beast program - survey conducted by McNair Ingenuity Research, February 2010

This telephone survey, involving 1018 adults in Australia, was widely reported in the media in early February 2010 as having found that 80% of adults support the government's mandatory ISP-level blocking plan. These misleading media reports were the result of an ABC TV Hungry Beast program media release which claimed that, for the purpose of advertising/promoting a program to be broadcast on 10 February 2010.

While it is true that the survey found that 80% supported having a mandatory Government Internet filter of some sort, it certainly wasn't the mandatory ISP-level filtering/blocking system intended/planned by the Federal Government.

The 80% result was achieved by giving survey participants a shorthand description of "RC" substantially the same the government's/Minister's consistently used worst-of-the-worst shorthand description of RC and asking whether they were in favour of [h]aving a mandatory Government Internet filter that would automatically block all access in Australia, to overseas websites containing material that is Refused Classification.

Regardless of whether the 80% result would have been different if participants had been given a more accurate description of "RC" material, and/or more detail about the government's actual plan, and/or informed that the government's planned 'filter' will not automatically, or otherwise, block all access to overseas websites containing RC material, responses to other questions show there was minimal support for the government's plan:

  • 91% were not in favour of secret blacklisting/censorship, i.e. 91% were in favour of the community being advised which websites have been Refused Classification and the reason why they have been refused classification - which is the opposite of the government's stated intentions, but interviewees were not told that;
  • 50% were not in favour of (and 4% were unsure about) having a Government appointed body determining whether a website is appropriate for you to visit - which is the government's stated intention, but interviewees were not told that;
  • 70% were concerned (and 3% were unsure) that if the Government's mandatory Internet Filter were put in place, future Governments could use [it] to restrict free speech or block other forms of website content they don't approve of.

For more information see:

Fairfax Media online newspapers polls, March/April 2010

(a) Poll 30-31 March 2010 (attached to report "Government goes to war with Google over net censorship", Asher Moses, 30 March 2010)
Do you support the government's internet filtering policy?

Total votes: 45154
Yes 3%
No 96%
Indifferent 1%

(b) Poll 31 March-1 April 2010 (attached to report "Rape simulator' game goes viral amid calls for censorship", Asher Moses, 31 March 2010)
Do you support mandatory internet filters to block material such as sites offering downloads of the game RapeLay?

Total votes: 32600
Yes 12%
No 78%
Indifferent 1%
Yes, but there are too many problems with internet filtering to make it viable 9%

(c) Poll 1-2 April 2010 (attached to report "Internet's not special, says communications minister", Asher Moses, 1 April 2010)
Censoring the web - How do you rate the internet?

Total votes: 45027
A special case 96%
Not a special case 4%

Will the cost of Internet access increase?

Almost certainly, as it seems highly likely that ISPs will pass on, to their customers, the costs they incur in installing and ongoing maintainance of filtering systems, and according to the government in December 2009:

Introduction of filtering by ISPs in other western democracies has been achieved without funding assistance from governments. There is no reason why Australia's ISPs cannot do the same.

The Government will explore measures to assist smaller ISPs to filter the RC Content list, where they cannot access a filtered wholesale or re-sold service.

[emphasis added]

The govt's intention not to provide funding to larger ISPs appears related to why their previously announced Budget for ISP filtering appeared to be grossly inadequate. Labor's budget for the first year was only 62% of the ISP installation costs estimated in a 2004 Coalition Government commissioned report (which was based on there being 36% less ISPs than existed in late 2007). See later section for more detail about Labor's ISP-Level filtering budget and the 2004 estimated cost.

Also, with regard to costs incurred by overseas ISPs:

  • the initial cost of installing ISP level filtering, at a retail level (not wholesale level), within U.K. ISP BT's network environment was approximately £500K (AU$1.05 million) as at Feb 2008, according to Nick Truman - Head of Internet Security at BT Retail (source: AU Gov't commissioned IIA Feasibility Report, Part 3 - International Survey, p.26, February 2008).
  • U.K. ISP Tiscali said their cost was several hundred thousand pounds at June 2006 - £300K then equalled AU$741K (source: "Surfing with a safety net", The Guardian U.K., 29 June 2006).

Will mandatory ISP blocking slow the Internet down?

The answer to this question is unknown. It depends, at the least, on a government decision about whether or not the ACMA would be permitted to add web pages on high traffic web sites to the planned "RC" content blocklist. The Minister/government has admitted that would slow the Internet down (see below). It would also depend on how any particular ISP decides/chooses to implement a government requirement to block material notified to them by the ACMA. In addition, the Government's ISP filtering trials conducted in 2009 did not test filtering/blocking at the high Internet access speed rates that are currently available to some Australian Internet users nor at speeds that would become widely available if/when the government's proposed NBN becomes operative.

However, regardless of the general situation that may/could exist in relation to speed now or in the future, the immediate issue is that the government has, on the one hand, claimed that the 2009 trials found that RC material on a government mandated blacklist can be blocked by ISPs with "100% accuracy", but has also admitted that if any of the blacklisted material is on a high traffic web site, then requiring ISPs to block same would slow the Internet down. The Enex TestLab report commissioned by the goverment on the 2009 ISP filtering trials stated:

Telstra reported that heavy traffic sites could overload its trial filtering solution if included in the filtering blacklist. This is also the case for all filters presented in the [Enex/government] pilot.

Therefore, the government hopes that overseas hosted high traffic websites, e.g. Google YouTube, will voluntarily agree to delete or prevent access to content objectionable to the Australian Government. The Government/DBCDE ISP Filtering FAQ page states that: In consultation with owners of popular overseas sites, consideration is being given to exempt high traffic sites from having their material included on the RC Content list if they implement arrangements to either take down identified RC-rated content or to block it from access by internet protocol (IP) addresses in Australia (Q16, Last Modified: 17 Dec 2009).

However, it appears that the Government is overly optimistic. See, for example: "Google baulks at Conroy's call to censor YouTube", Asher Moses, Sydney Morning Herald, 11 Feb 2010. Previously on 16 December 2009, Google Australia's Head of Policy, Iarla Flynn published "Our views on Mandatory ISP Filtering" which states:

At Google we are concerned by the Government's plans to introduce a mandatory filtering regime for Internet Service Providers (ISP) in Australia, the first of its kind amongst western democracies.* Our primary concern is that the scope of content to be filtered is too wide.
...
... Refused Classification (or RC) is a broad category of content that includes not just child sexual abuse material but also socially and politically controversial material - for example, educational content on safer drug use - as well as the grey realms of material instructing in any crime, including politically controversial crimes such as euthanasia. This type of content may be unpleasant and unpalatable but we believe that government should not have the right to block information which can inform debate of controversial issues.
...
Exposing politically controversial topics for public debate is vital for democracy. Homosexuality was a crime in Australia until 1976 in ACT, NSW in 1984 and 1997 in Tasmania. Political and social norms change over time and benefit from intense public scrutiny and debate. The openness of the Internet makes this all the more possible and should be protected.

Statements issued by Google in February 2010 show their views have not changed and that the type of material, and circumstances in which, Google would delete material from YouTube is significantly narrower than the wishes of the Rudd Labor Government:

Hence it appears the Rudd Labor Government has two choices: either mandatory ISP blocking will not block RC material on YouTube or it will do so and will slow the Internet down. The situation in relation to most types of RC material on other overseas hosted high traffic sites in Western democratic countries is very likely to be the same (because in such countries the vast majority of types of content classified "RC" in Australia are not illegal to sell/distribute/publish).

Existing legislation: ACMA blacklist, "prohibited content", etc.

ACMA existing secret blacklist

The Australian Communications & Media Authority ("ACMA")'s existing blacklist is a secret list of overseas hosted content that is allegedly either "prohibited content" or "potential prohibited content" (i.e. material that is, or in ACMA's opinion would be, classified RC, X18+ or R18+, and also may include some MA15+). ACMA is not required to obtain a classification from the Classification Board.

The ACMA provides its blacklist to an unknown number of filter software vendors who agree to add such content to their filter's block list.

To date (March 2010), use of a filter by members of the public is voluntary and ISPs are not required to block any content on the ACMA blacklist.

In stark contrast to the offline censorship regime, the online censorship regime operates in secrecy and without accountability. The content of ACMA's secret blacklist is not subject to any form of scrutiny or oversight; ACMA's 'classification' decisions cannot be subjected to appeal or review; and Freedom of Information (FOI) legislation was changed in 2003 to exempt all information about content that ACMA has added to its blacklist, (including content that is legal to sell/exhibit/distribute offline), from disclosure under FOI.

In March 2009, as a result of unusual circumstances, it became publicly known that at least one page containing 'PG' content had been incorrectly added to ACMA's secret blacklist, allegedly due to a "technical error" within ACMA, and also that ACMA staff had incorrectly guessed that a web page would be "Refused Classification" if submitted to the Classification Board. While it may be argued that such errors are not particularly important when the blacklist is only provided to filter vendors (and Australians are free to choose not to use a filter), it is a serious and highly concerning issue in the context of the Government's mandatory ISP-level blocking intentions.

Number of URLs/web pages on ACMA blacklist

  • At 30 Sep 2009: 1,175 URLs.
    of which 18% (212) of the URLs was, according to ACMA, child sexual abuse material (a 32% decrease in number of URLs since 30 April 2009):
    • 41% (482) X18+
    • 5% (59) R18+
    • 54% (635) RC, comprising:
      • 18% (212) "RC - Child Depiction"
      • 36% (423)  RC - other reasons
  • For statistics at previous dates (2008-2009), see separate page.
  • On 16 March 2010, Senator Conroy said in the Senate chamber during Question Time that: at the latest count there were 355 child abuse URLs on the ACMA black list and on 24 March 2010 he said on the Channel 10 TV 7pm Project: There are currently today 355 web sites that are banned because they...show child pornography (emphasis added). That statement concerning 'banned' web sites is unlikely to be factual because the ACMA blacklist contains URLs of individual web pages not web sites. The 355 URLs referred to by the Minister in the Senate could be 355 pages on one web site, or one page on each of 355 web sites, or some other number of web sites containing some number of blacklisted pages.

More detailed information about ACMA's Blacklist of "Prohibited Content" is available on a separate page:

What does "prohibited" material mean?

The term "prohibited" material is highly misleading. It does not mean "illegal" material, notwithstanding that the Minister for Communications used the terms "prohibited" material and "illegal" material interchangeably during 2008 and into 2009 when referring to the Government's mandatory ISP-level blocking intentions.

"Prohibited content" is defined in Commonwealth Internet censorship legislation, which was originally enacted in 1999 (and which the then Labor Party voted against).

So-called "prohibited content" includes material unsuitable for children (some MA15+, and also R18+ and X18+), i.e. material that is lawful to sell/publish/distribute/obtain offline in Australia, (and some is also lawful to exhibit in cinemas and on TV), and which is not illegal for Australians to view on the Internet.

Australian-based Internet content hosting service providers are prohibited from hosting "prohibited content" on Australian-based servers if/when the hosting service provider has received a take-down notice from the ACMA ordering them to remove the particular/specified content.

For more detailed information about "prohibited content", see separate page:

What does "illegal" material mean?

During 2008, Minister Senator Conroy frequently referred to blocking "illegal" material. However, he consistently skated around defining the term when questioned by journalists and other Senators, and used the term "illegal" material interchangeably with "prohibited" material, although the latter as defined in existing Internet censorship legislation does not mean "illegal".

Are "euthanasia web sites" illegal?

In October 2008, the Minister said:

Stephen Conroy: ...euthanasia websites [are] currently illegal under the existing laws.

Source: "The Great Firewall of Australia", The Media Report, ABC Radio, 30 October 2008

However, "euthanasia websites" is vague and misleading terminology which misrepresents Commonwealth law: the Criminal Code Amendment (Suicide Related Material Offences) Act 2005 (which was the subject of much public controversy and criticism, see e.g. Senate Committee inquiry into the 2005 Bill). That legislation does not make web sites "illegal". It contains criminal offences for using a carriage service (telecommunications/Internet) for specified purposes with specified intent, and it does not prohibit use of a carriage service to engage in public discussion or debate about euthanasia or suicide; or advocate reform of the law relating to euthanasia or suicide; unless the person has specified intent beyond such discussion/advocacy. Refer to the Act for details. It would however be very concerning if ACMA were to start applying the criteria in that Act (which requires determination of a person's intent), rather than a court of criminal law as intended by the Parliament.

More recently, in February 2010, Senator Conroy said on ABC TV that publication of Phillip Nitschke's book and other euthanasia self harm material is banned in Australia today. However, Phillip Nitschke's book was not banned/classified RC on the grounds of being euthanasia or self harm material. See separate page, for information on why it was banned.

Does "illegal" material, as referred to by Senator Conroy, include copyright infringing material?

No. Senator Conroy was asked, during February 2009 Senate Estimates hearings whether his references to blocking "illegal content" include "illegal MP3 download sites and things like that". Senator Conroy replied that it does not.

Is "RC" material illegal to access/possess?

"RC" comprises a wide range of types of material, the overwhelming majority of which is not illegal to access/possess in most parts of Australia. See separate page for detailed information.

Continued ...

The following sections have been moved to separate pages:

Related Information & Other Commentators

Liberal Party Politicians

Liberal Party Politicians: Opinion articles etc

Shadow Communications Minister: Media Releases etc

Other Commentators

The list below contains a small selection of commentary, the primary purpose of which is to show that claims made by some supporters of Labor's mandatory scheme (e.g. the Australian 'Christian' Lobby ("ACL")) that the only people who oppose Labor's plan are "cyber libertarians", and/or people who don't care about child protection, are not true.

See also:

Minister's Answers to Senate Questions on Notice

Senate Standing Committee on Environment, Communications and the Arts Estimates Committee hearing transcripts

These transcripts contain questions to and answers by the Minister and/or ACMA concerning filtering, blacklist, etc.


 
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