[LINK] US prof undermines foundations of Aussie firewall

Bernard Robertson-Dunn brd at iimetro.com.au
Wed Jan 14 10:04:25 AEDT 2009

US prof undermines foundations of Aussie firewall
World govs better take note
By John Ozimek
Posted in Law, 13th January 2009 13:02 GMT
The Register

Just as Australian Communications Minister Stephen Conroy thought things 
couldn’t get any worse, his proposal for the great Aussie firewall is 
under fire again – this time from the lofty heights of US academia.

A paper <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1319466>
by Derek Bambauer, <http://www.brooklaw.edu/faculty/profile/?page=472>
Harvard graduate and Assistant Professor of Law at Brooklyn Law School, 
not only puts the cat amongst the Australian pigeons; it also sets out a 
series of key tests - Andy Burn’em please take note - that should be 
applied to any government proposals for regulating the net. He writes:

To assess legitimacy, the process-based framework asks
four questions. First, is a country open about its Internet
censorship, and why it restricts information?
Second, is the state transparent about what material it
filters and what it leaves untouched?
Third, how narrow is filtering: how well does the content
that is actually blocked - and not blocked - correspond
to those criteria?

Finally, to what degree are citizens and Internet users
able to participate in decision making about these
restrictions, such that censors are accountable?
Legitimate censorship is open; transparent about
what is banned; effective, yet narrowly targeted;
and responsive to the preferences of each state’s citizens.

His verdict is pretty damning as far as Australia is concerned. While it 
just about gets by on the first of these criteria – the incoming 
government did make mandatory internet filtering a plank of its election 
campaign – it is deemed to have failed outright on the other three issues.

On transparency, the government keeps resorting to wild generalisations, 
talking about the blocking of material that is inappropriate or, as 
Bambauer observes, "other unwanted material". This is key to the debate 
that Australia isn’t really having.

The government has quoted a notional list of 10,000 sites that would be 
blocked. Bambauer asks: do they actually have a clue which these would 
be? Or is this just a finger in the air? He concludes that it is 
probably the latter.

Without transparency, it is hard to determine how well the filtering is 
doing its job: and without transparency, open debate on the issues of 
what should or should not be banned become next to impossible.

Finally, he raises the question of whether the first criterion is even 
satisfied. Since it looks more and more likely that the target for the 
filter list is content deemed unsuitable for adults, as opposed to that 
which is merely unsuitable for children, even the issue of democratic 
mandate for this policy may be called into question.

An interesting comparison in this respect is between the Australian 
total of 10,000 sites to be blocked and the total of sites that the 
UK-based Internet Watch Foundation (IWF) claims to be involved in 
blocking. The latter claims to include somewhere between 800 and 1200 
live urls at any one time: given that the IWF may be considered to have 
one of the world’s most comprehensive systems when it comes to blocking 
access to child porn, this suggests either that Australia thinks it can 
find another 9,000 such sites – or that its block list will go far, far 

Professor Bambauer’s paper is mirrored by the views of one UK 
counterpart, Lilian Edwards, Professor of Internet Law at Sheffield 
University. Professor Edwards is principally interested in the law as it 
pertains to the web and internet technologies and, under the nick of 
panGloss, writes a very useful blog on these topics.

She has taken on our very own IWF in the past, and following the recent 
controversy over the IWF’s censorship of allegedly indecent imagery 
published on Wikipedia, she wrote a closely analysed piece about what 
should be the principles that underpin internet censorship (aka 
"filtering"). Her starter for ten was a set of five criteria: namely 
that any filtering or blocking ought to be transparent, open, 
democratically determined, judicially backed, and accountable.

There is a pleasing overlap between this set of criteria and those set 
out by Professor Bambauer.

For those minded to dismiss the above as academic froth, these are both 
important milestones along the road to a rational approach to internet 
regulation. The model for regulating media, in the UK, has historically 
been to ask the media owners to do the job themselves.

That may just have been acceptable when dealing with media that were 
essentially pushed from publishers to consumers: that is far less 
acceptable when the media themselves are used as much, or more, as a 
means of extending public debate on issues as a commercial tool.

As Professor Bambauer points out in his introduction: the Australian 
experiment is the first attempt by any democratic Western nation to 
engage, at state level, with the filtering of the internet. However, it 
comes at a time when almost every other western state - including the UK 
- is trying to thrash out its approach to internet regulation, so the 
outcome of this experiment will affect us all.

If reaction to Stephen Conroy’s proposal can result in the emergence of 
a consensus around the principles that will underpin any such filtering 
in future, that might just be a good thing.


Bernard Robertson-Dunn
Canberra Australia
brd at iimetro.com.au

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