Secrecy and the Digital Economy

It was with some fascination that I noted that the Digital Economy blog and subsequent discussion paper included a section on private sector use of Government information. I realised it appeared there because of the particular interest of one advisor to Minister Conroy who has subsequently moved on to the office of the Premier of Victoria.

It has been one of the notable achievements of the Rudd Government that at least Senator Faulkner has been able to progress on a range of issues to do with openness in Government. This has included both FOI Reform and the lobbying code of conduct. However, I am aware through a family connection that Senator Faulkner is finding the process slow and and the support of his colleagues lacking.

But it remains the Department of Broadband, Communications and the Digital Economy that sets the benchmarks for opacity. One of the more bizarre is their ongoing inability to understand the lobbying code, most recently demonstrated by a claim in a call for sbmissions that submissions by lobbyists would need to comply with the code. The problem is the code actually notes that submissions made in response to requests for submissions is not a lobbying activity.

They also suffer from an ongoing inablity to release submissions to discussion papers at or about the time of submission. The most recent ase is that of the Digital Economy consultation itself. It appears their excuse (from talking to a colleague) is that they forgot to ask at the time if submissions could be published and are only just getting around to that task now.

A related problem is the idea that consultants reports on policy issues are automatically tagged as "advice to the Minister" and hence never allowed to see the light of day. This usually results in repeated consultations covering the same turf.

Thankfully the related agency ACMA only suffers from its interpretations of the lobbying code of conduct. It has a new policy of including an agency response to submissions (that is, active demonstration of the concept of consultation by demonstrating that the views were considered even if not adopted) at the same time as final papers are released.

I would prefer they focus on transparency of the policy process before they worry about access to Government data.

Crikey by-play

Stilgherrian has been busy over at Crikey again today and yesterday. I'm not going to bother linking to him.

In yesterday's Crikey I had comments published. But in response to the extra I made a contribution which has not yet been published, which reads;

Oh dear. Those anti-filter types just can't seem to follow the story long enough to get anything right. Re: Razer: Conroy should not be surprised at blacklist leak, the good Helen has tried to infer something from the list of six providers announced already as participating in the trial, claiming "Sadly, applicants Optus and iiNet are still waiting. For the first round, Conroy has selected some odd companies." This isn't something being decided in "rounds" as the Minister has explained (at ATUG) there are sixteen applicants and some had simpler applications to process than others. Some ISPs have tried to use the trial as a way to fund equipment upgrades, which, understandably, isn't the Minister's intent.

Meanwhile Stilgherrian should have waited till he'd seen my comment before rushing to print. Wikileaks doesn't have another leak they are just describing how they got the list - and - horror of horrors it had nothing to do with the ALP or the filter trial. It was a copy of the list generated under the legislation and distributed in accordance with the industry code. So nothing in the filter trial was relevant to the list leaking, except the campaign. Most importantly the process supposedly favoured by the industry (end user control, filtering software) was exposed for the inadequate process it is.

And there is an attempt to claim that because a site referred to ACMA after August was on the list that the list must be more recent than its date. This conveniently ignores the fact that the list contained URLs not on the ACMA list, so it could have been there from another source, and also that the anti-filter campaigner reporting the URL has no way of knowing if the URL was already on the list before complaining about it.

Finally, if the Minister has made inconsistent statements about what content the final filter will limit (the existing prohibited list or the narrower Refused Classification) I'm prepared to believe his most recent comments, or at least wait till I see what is in the final legislation

Mark Newton got a reply in today's comments and Stilgherrian had yet another go.

I've submitted my contribution;

Mark Newton (comments) incorrectly states that I suggest the IIA was involved in the leak of the ACMA list. But he does agree the list was leaked from the existing process and the existing legislation - which is the framework the IIA supports. He asks how long the list for the ISP filter would take to leak, and the answer, as I wrote, is that it doesn't matter - as with a filter in place the average joe-blow at home isn't going to be accessing the sites.

I think the issue about whether the list released is or isn't the "ACMA" list is a little weird. Even the first list seemed likely to at least include the ACMA list. But, to repeat, the leak came from a nine-year-old process of distributing the list to filter providers who embedded it in software for furher distribution. Can we all agree that that is a dumb idea? And, by the way, if we plan the filter right we only need to install it on the transit links out of the country rather than in every ISP - that is a lot more efficient and a lot more controlled.

And it really does become possible to institute a process for review of the sites listed on the list. Finally it is strange that Stilgherrian can be dredging up the "Conroy s Big Brother" line (which is matched in the chat forums with claims that the Rudd government is totalitarian) in the ame Crikey issue as John Faulkner's review of FOI laws is reported.

If I was the editor I probably would't bother because I'm not saying anything new ... but then again, neither is Stilgherrian or his colleagues.

To confuse things

Let's talk about democracy.

You might have seen an item by Michael Duffy in he SMH on the weekend. Duffy discusses the claim that "the internet has healthily diluted the political power that used to be concentrated in the hands of those who were older, wealthier, and better connected than the average citizen." He relies upon a book by Matthew Hindman called The Myth of Digital Democracy to claim that the internet has in general made little impact.

The central thesis is that who speaks, and who gets heard is still fundamentally the same. For example, while GetUp! might reach a big audience, so did street stalls with paper petitions. People like me who blog were also letter writers to newspapers. People who talk a lot about politics in chat or twitter do it a lot in the pub.

The thesis has some merit - however, it is not quite as simple as that. True the same people are still mostly doing the same things just in different ways. But significantly the internet means that a individual is no longer denied a voice. The impact is at the margins rather than a fundamental reform. And it is all too easy to forget how in earlier generations the printing press was the most significant weapon of revolutionaries. Simon Sebag Montefiore's Young Stalin is full of the stories of the moving, defending and loss of printing presses.

You don't notice the benefits of the internet in democracies as you do in states that aren't democracies.

This is all a long intro to segue to the fact that I've been included in an online list of the censorship who's who. I'm sure the Crikey guys would be thrilled to see that I'm referred to as having contributed i the main stream media because I have written in Crikey - they don't think of themselves as MSM.

Anyhow the site also has a who's who on a Bill of Rights. Just to confuse matters I'm absolutely supportive of a Bill of Rights. I'm ultimately supportive of a Bill of Rights that would be incorporated in the Commonwealth Constitution, but I can see all the dilemmas that poses.

What I can't stand is all the opposition to a Bill of Rights as just an Act of Parliament. Lots of very idiotic comments running around about either over-empowering judges to "make law" (or at least overturn law) or about constitutional problems if courts lower than the High Court were empowered to make decisions about the constitutionality of laws.

It really is possible to hasten slowly. Step one would be to pass an Act establishing Basic Human Rights in Australia. In that Act you authorise a statutory body (e.g. HREOC) to report annually to Parliament on whether any rights have been affected by legislation, and empowering them to conduct enquiries and receive complaints. Parliament doesn't have to do anything - but the process holds the Parliament and Government to account to voters for the contraventions. (You can expect they will react by varying one or other Act).

Once we all get comfortable with that you change the Act so that the High Court can decide if a new piece of legislation offends the Act, and specify that the latter Act is void if it is not re-enacted by the Parliament within three months (or twenty sitting days) of the Court's decision. Once again Parliament might decide to amend the Rights Act.

Once that becmes stable you put the referendum to adopt the final Act as a set of Constitutional rights.

Not hard really. And I suspect that the filter would be legal under any of them.

Oh Lord Oh Lord

Here we go, the filter issue is getting out of hand. Apart from Stigherrian and Helen Razr getting another run in Crikey, there have been three high-brow pieces.

The first is ABC radio Background Briefing which, quite frankly, was standard beat up 101. Drawing wrong conclusions about who the first six triallists were, pointing out that there are other ways to access child pornography. The idea that the filter is "filtering" all web-traffic rather than simply blocking access o certain sites.

The second is New Matilda which also runs most of the same lines.

Meanwhile at Online Opinion there is a wacky piece which provides a really good scenario of how someone registering a new site could be acquiring a name that has already been blocked. But he spoils it all by claiming that a person who linked to the site would already be in court defending a fine rather than having become aware of the fact the site was on the list. But the supposed solution was about not just URL blocking but actually de-registering domains. That could be far more disastrous.

Pity that with all this attention no one else seems to pose the two step question. Is it appropriate to run classification systems at all? If so, how should it be done on the Internet?

Filtering - again

I promise this is not my obsession, but I am getting increasingly frustrated by the nonsense that is the campaign against Internet filtering. I'm inspired to write by the leaking of the "ACMA blacklist" to Wikileaks.* It is interesting to note that according to the Minister this is NOT the ACMA list.

The difficulties I have with the campaign are many, but the main ones are that it is not a genuine libertarian cause, that it is mostly self-defeating and that it is based on the opponents own constructed straw-man. Let me deal with the first two, and then fill the void created by the absence of clear policy from the Government.

Not libertarian
The campaign against the filter is not a genuine libertarian campaign because, in fact, nowhere do they make the argument that the information that the Government ostensibly claims is to be filtered - images of child pornography and abuse - is information that should be frely available.

Earlier libertarian campaigns that did lead to radical changes in Australia's approach to censorship focussed entirely on the right of citizens to access he material subject of the campaign. The campaign about the censorship of The Little Red Schoolbook was a classic example of focussing on specific content. Similarly the work of Wendy Bacon and others expressly focussed on sexual politics, but this was based on some philosophical foundations. The ultimate was, of course, the simple absurdity of the book censorship rules that banned books like Portnoy's Complaint and Lady Chatterly's Lover. It was the revision of these rules that made Don Chipp a poster boy of "small l" liberalism.

A similar campaign now would be about the stringency of the rules that deems certain material "refused classification" and hence not legally able to be distributed or sold in Australia. But this is not the campaign - the campaign is that somehow the Internet is precious and different.

A slightly different variant of the libertarian strand of argument is that somehow the creation of the ability to filter Internet content merely by the device of a secret blacklist would empower the executive government with the ability to filter out other material, such as political material. The whacky case of the gruesome abortion images was supposedly demonstrating the possibility of this. Other comments, notably on the DE blog (now torn down I gather), went to the idea that this Parliament shouldn't provide the tools to another Parliament to implement.

This is all slightly crazy. Firstly you don't need this Parliament to make things possible for a future rogue Parliament, they can do it themselves. Secondly, the list is maintained by a statutory authority not subject to direction on including specific sites. Conspiracy theorists might abound, but you'd need to involve a lot of people in the conspiracy.

The campaign against the filter is not a genuine libertarian campaign.

A self-defeating campaign
Jonathan Zittrain, in his book The Future of the Internet; and how to stop it refers to the wonders of the Internet being the fact it is a generative technology. He writes;

Generativity is a system's capacity to produce unanticipated change through unfiltered contributions from broad and varied audiences.

His thesis is that generativity is the Internet's greatest strength and its greatest weakness, it is this generativity that turns the Internet into a superb means for conducting scams, for phishing and, indeed, to subvert ordinary agreed social rules that are enacted as laws. This ongoing trend makes users sufficiently nervous about the net that they want it "controlled", and control ultimately means "locked down". There would be nothing simpler for controlling the net than going bck to the idea that all networks are Government owned and controlled just the way telephone networks were until the early 1980s.

The campaign about the filter only serves to drive home more to the non-technologists just how much this fear is justified. It does nothing to make the average user feel more comfortable to be told that a Government program to "protect the children" is ineffective because people can just work around it. That's like telling people that there is no point in a law prohibiting murder because people will still get killed. It doesn't instil confidence - it just inspires people to say "do more" - in the case of murder more is banning guns and increasing police forces. In the case of the internet, nationalising it is one safe way to go.

But more specifically the recent event has been the publishing of the ACMA "blacklist". Now this is the list prepared to notify filter providers of the sites that ACMA has identified that under Schedule 5 of the Broadcasting Services Act. It is notable that the list that has ben "leaked" in March 2009 is the one issued in August 2008 - speedy stuff.

It is also notable that this list has been in existence since the original amendment was passed in 1999. Why has the list been made public now - because it suits the purposes of those campaigning. There were lots of comments about how the list would become public, but it only has become public because of the campaign. How exactly does that endear the campaign to anybody? Especially since it also appears that the document is not the ACMA list.

Finally and most damagingly for the anti-filtering campaign, the publication of the list has less effect if the filter is in place! We will talk more about the ability to subvert the filter - but do I really care if the list of sites you can't get to is known?

I really do not know what campaign these people are pursuing, but it doesn't seem to be logical. Of course, they try to take comfort from the idea that the Government won't get its legislation through the Senate. Hello. Has anyone noticed that the existing law was introduced by the coalition when they were in Government. Do they really think that the coalition are the group that are going to vote for child porn?

A better strawman
In the absence of the Government doing it, let's write a possible policy.

The concept of classification of content is now well established in Australia. The most well understood regime is provided by the Classification Act that, as we know from the cinema ads, helps us make informed choices. The essential concept is that it helps a person to know before they (and importantly pay to) watch or buy something that it meets the standard they would expect. So the primary purpose is informing people about the content. A secondary purpose is to impose some mandatory restrictions, specifically on where and how R18+ and X18+ material may be displayed. In addition it allows for certain material to be "refused classification", this is material that cannot be distributed or sold, but it is not illegal to own. Included in this is a tighter level of material covered by other legislation - specifically the "illegal" material of child pornography, this is material that it is illegal to have in your possession.

This regime is all compounded by the fact that aspects of it are in State law, for example, whether X18+ material can be sold. Similarly the classification scheme itself was subject to an agreement between he States and Commonwealth, and the fact that there is no R18+ category for games is because of the inability to get this agreement, not unwillingness on the part of the Australian Government. (The absence of this classification evidently is a reason to object to the banning of online RC material - as opposed to being a reason to get the category created).

Let's also look at the limitations of the content classification scheme. Refusing something a classification and making it not available for distribution in Australia will not prohibit someone from accessing that material. It might be brought in undetected in luggage or even in the mail. However, the fact that it might still be accessed is never given as a reason for not having the classification and the prohibition.

This is not the only process. Recognising the more dynamic nature of television the TV networks operate their own classification scheme within the TV code of practice.

In the best of all possible worlds a similar classification scheme could operate for the entire web content on the Internet. For simple browsing all that would be required is that as part of the DNS scheme every domain had a classification. Just as TV that classification could be self-attested by the domain owner. Where the domain facilitates other contributions, e.g. blogspot that hosts this blog, whirlpool which is a forum, it is up to the domain owner how they police the need for all content to met the classification standard. The ability to execute a take-down notice of some kind would suffice. A variation on this is the approach taken by the Internet Content Rating Association (ICRA).

Unfortunately due to a range of factors, including the fact that different countries still have different standards, the full implementation of a satisfactory online classification scheme is some way off.

So absent a global solution, how can we replicate the outcome of a classification scheme (noting that if you want to make the libertarian argument against classification that should be a technology independent argument). The coalition tried to do it through the device of the existing BSA provisions. This defined certain content as prohibited. Prohibited content was to not be hosted in Australia, and through an industry code, the industry agreed to restrict access to the content that was hosted outside Australia. That latter restriction is by the provision of the list of prohibited content to filter providers and the promotion by ISPs of those filter providers to their customers.

This legislation unfortunately defined prohibited content as being R18+, X18+, and RC material. The procedure is that content is currently only listed if a complaint is made to ACMA and ACMA has investigated the site, classified the material in one of the categories and identified the site is hosted overseas. The ALP policy did include a plan to be more active on the list construction in conjunction with the filter. In addition ALP policy planned to require all ISPs to offer an optional "clean feed", that is of a filtered service more restrictive than the prohibited content.

What Conroy has never clearly stated is that it is his intention to modify the BSA so that there are two classes of content. The RC material that must be filtered out, and then the R18+ and X18+ that would be filtered out if a customer elected to acquire a clean feed.

The only objections to this (that are not objections to classification in general) are that it will "slow the internet", that it won't actually stop access to the bad stuff and that it is subject to abuse as the list is secret.

Slow the internet
Say the word "filter" and people immediately assume dynamic filtering or "deep packet inspection". In reality the simplest implementation of a filter of designated URLs (parts of sites) is to map those URLs to the IP addresses of the machines that host them. It is this list of IP addresses that is provided to ISPs and they route traffic to those IP addresses to the filter provider who undertakes the further analysis. This is cheap, scalable and efficient. It adds zero latency to IP addresses not on the list, and ideally can be implemented as part of the transit provision service out of the country and not need to occur in ISPs.

It won't stop access
This is the weakest argument, because it is equally true of all attempts to prohibit anything. As mentioned above you can find ways to get access to RC films or pictures. But is that a reason not to try? Is that sufficient reason to say they can be sold in any newsagent in the country? It is also the argument of the tech savvy who don't understand that the vast bulk of internet users never get past just typing URLs into browsers.

Secrecy of the list
The more effective the filter, the less necessary it is to keep the list secret. The list of films refused classification is public. It is no use in Australia because you can't buy them, though you could use it to try to source one through the means we know. Similarly the list of banned sites isn't much use to you if the filter is in place (except that you may equally use it to subvert). As a layer between secrecy and full disclosure the list could be made available for interrogation by application - so that civil libertarians and others could check to ensure the guidelines are being pursued.

Concluding remarks
The campaign against the filter is, quite frankly, stupid. It is only succeeding because Conroy hasn't been prepared to convert more of the campaign promise into policy documents. A good old fashioned "green paper" to accompany the trial would have been a good start.

Meanwhile others keep making gooses of themselves. The IIA is most concerned about the idea of legislation and would prefer to deliver whatever Conroy wants by way of a revision to the industry code. Conroy himself in answering a question at the recent ATUG conference is reported to have gone on at some length with the idea that the filter can't be undemocratic because it was the Parliament that will introduce it.

That hasn't stopped the Greens' Scott Ludlum engaging in a bit of posturing that he and other Senators will stop the legislation but they are still afraid the Government might try non-legislative routes.

It would be all much simpler if we divided the discussion into its two simple parts. What classification and content restriction schemes are appropriate for all content, and how can we mot readily put that into effect for content delivered over the Internet.


* I'm led to believe that providing a hyperlink on my site to the site that provides the list technically is a breach of the rules about publishing the list. If I am so notified I will remove the link.

Cynicocratical

There you go, a new word for you. What does it mean? "Pertaining to rule by cynics".

Use the word in context - judging by the commentary about internet filtering in Crikey and other supposedly reputed sources, the governance of the internet is cynicocratical. That is the possible subject for a blog post all on its own!

However this blog post is actually about words - in fact two kinds of words - firstly words that are in danger of extinction and secondly words being created. There are two ripper websites devoted to each topic - each of which can send you a "word of the day" (and both shown to me by the same work colleague).

Save The Words is a cool flash site that provides a picture of a lot of words that are in danger of falling into disuse. Moving the cursor moves the frame across the virtual picture and the words asked to be picked. You learn the meanings of the words, can adopt words and order a t-shirt of the word. The site is operated by the Malaysian subsidiary of OUP (and unfortunately the t-shirts are only available in Malaysia and Singapore).

Meanwhile Urban Dictionary describes itself as the "slang dictionary you wrote". Hence it technically could be called a Wiki-ictionary devoted to slang. While much of it is interpretive of existing slang, it is also a place you can go to make up a word. The word of the day today was "cewebrity" which means "an internet personality that has achieved celebrity". On that basis one of the afore-mentioned - the identity known as "the fake Stephen Conroy" - is a cewebrity.

I've signed up for both. I'll resist the temptation to try to include both words in a blog posting each day!

Slow response time

I have received a late comment on one of my earlier posts about the filtering issue by websinthe.

I really get irked by people who object to my ocassional typo (more often typos than spelling errors). He wants me to use Firefox as my browser because it has an inbuilt spell checker - but then again I could always compose in a wordprocessor and cut and paste.

I object even more to people who use the gratuitous sign-off that implies the whole piece fails on grammar, logic and research.

Now to the substance. Apparently my comment that certain concepts on which capitalism is founded weren't self-created was both insulting and wrong. Firstly when I claim "an argument ignores X" I am not actually claiming "the person who is making this argument is ignorant of X". I can't infer the latter from the argument made, I can infer the former, which is all I did.

As to whether the concepts were made by Government either through courts or legislation it is not sufficient to claim something pre-dates the concept of legislation (as in a Bill introduced to a Parliament) to refute that. The context includes any action made by the representation of the State including a monarch. Yes, diffrent kinds of money flourished without central control. The only money that anyone ever relies on is the money that comes with the various levels of security created by the Government's role in money. Similarly the concept of a contract only required the two people entering into it to agree they wre agreeing, but the idea of contract as expressed in market theory requires all the elements that were created by judge-made law.

(Oh - and if anyone cares the following is not a grammatical sentence "You claiming that I am ignorant of the legislative and judicial origins of the three frameworks you mentioned when only one of them was a creation of common law and none of them were created by legislation. " )

Now as to the references to the Whirlpool action. The story is that ACMA issued a notice that one of the posts on Whirlpool included a link to prohibited content. The concern seems to be over the responsibility of the site hoster.

The bad news for Whirlpool and anything like it is that they aren't a mere conduit and that the site's owner has the same responsibilities as a newspaper. If a defamation action is brought then the site owner can be included.

Is that fair? Well, yes actually. You see the site owner has made the concious decision to have "unmoderated" comments - just like I have.