Great Firewall of Australia? (Great E-Barrier Reef?)

I blogged about this four years ago, back when it was just an early proposal, but now it seems to be officially recommended by the Australian government:

AUSTRALIA will join China in implementing mandatory censoring of the internet under plans put forward by the Federal Government....

The government has declared it will not let internet users opt out of the proposed national internet filter....

Communications minister Stephen Conroy ... said trials were yet to be carried out, but "we are talking about mandatory blocking, where possible, of illegal material."

The net nanny proposal was originally going to allow Australians who wanted uncensored access to the web the option of contacting their internet service provider to be excluded from the service....

The minister's statements are in this transcript (see around PDF p. 80); here's a particularly interesting exchange:

Senator LUDLAM -- I will take you back to the chair, but can you just tell me whether, in terms of discussing finishing up where we started, who is going to be determining what is on these black lists. Is that a question to you, Minister, to the department, to the AFP [Australian Federal Police] or to ACMA [Austrialian Communications and Media Authority]?

Senator Conroy -- As I said, we are enforcing current law and ACMA determine this based on the existing law. So we are happy to have a chat with them. I think they are coming up next as you have indicated, so you can have a chat with them about how they go about determining it. But the general sort of stuff that we are talking about is child porn and they are the sorts of sites that we are targeting. We do not believe that you should be able to opt in to child porn. I am sure you do not either.

Senator LUDLAM -- What about, for another controversial example, euthanasia related material?

Senator Conroy -- You would have to ask them whether that falls within their definition. There are calls for, as an example, banning pro anorexia websites. Again, it falls into that sort of category. So there are calls for a whole range of material to be included in the black list, but I do not think that they fall inside the existing definitions under the law. I do not think that they are caught.

Senator LUDLAM -- Can you then see the basis on which some people might be raising concerns that once we have such a list it can go from being a black list to a very grey list very quickly, depending on how much the government thinks should be filtered. It is almost reversing the burden of proof, which is a very different approach to sending law enforcement agencies after people who are posting—

Senator Conroy -- I do not agree with the basis of your assertion that we have—

Senator LUDLAM -- You have not heard the assertion.

Senator Conroy -- You said it basically reverses the onus of proof. I do not agree.

Mr Rizvi [Deputy Secretary, Broadcasting, Regional Strategy, Digital Economy and Corporate] -- The ACMA black list has been around for quite a number of years now. It is not a new list.

Senator LUDLAM -- I suppose what is new is having complicated automated software deciding what Australians can and cannot see on the net. The black list, as the minister is rightly pointing out, can become very grey depending on how expansive the list becomes -- euthanasia material, politically related material, material about anorexia. There is a lot of distasteful stuff on the internet.

Senator Conroy -- Existing provisions under the Broadcasting Services Act 1992 are able to deal with suicide related material that provides detailed instruction or promotion of matters of crime or violence. It is an existing law....

Senator Conroy -- ... You might want to ask for the interpretation of that [the sentence quoted right above -EV] when ACMA comes to the table. That is the existing law. If you want to argue for changes in the existing law around euthanasia—I know many have—then that is a worthy debate and we should have it.

Senator LUDLAM -- Probably not here. That was not the point, I suppose. It is just an example of that kind of grey area. I believe with a few minutes online you could probably find that kind of material whether it has been declared illegal in Australia or not. Is it the intention of the government to have that material become unavailable?

Senator Conroy -- We would be enforcing the existing laws. If investigated material is found to be prohibited content then ACMA may order it to be taken down if it is hosted in Australia. They are the existing laws at the moment.

As I argued before, it seems to me quite likely that once government-mandated nationwide filtering is imposed on one sort of content, there'd be considerable pressure to extend it. After all, we already mandate provider-based filtering of child pornography, and this is just a small extra step, since it's only going after illegal material.

True, the filtering may be overinclusive, because it will inevitably block even some material that, on closer examination, would have proved to be constitutionally protected. But we've already crossed that bridge in the earlier proposal, haven't we? So why not take this a step further? The slippery slope is a real phenomenon, in legal and political systems that are heavily influenced by notions of precedent and logical consistency.

Now perhaps the bottom of the slippery slope isn't that scary. Maybe service providers, in Australia or America, should automatically block access to sites that private filter companies -- or the government -- has decided contain illegal hard-core porn, child pornography, copyright-infringing material, libelous statements, statements that express hostility based on race, religion, or sexual orientation (at least when accessed from those Western countries that outlaw such statements), copies of the "Hit Man" murder manual or the Anarchist's Cookbook, and the like. Rather than requiring trials to decide whether each site contains illegal information, a process that would be so cumbersome that it would keep the regulatory schemes from working effectively, we should just have providers instantly block access to any site that some government agency has decided is indeed illegal. Much more efficient, indeed perhaps the only efficient way of effectively shielding Australia and America from potentially harmful off-shore speech.

In my view, such a solution, efficient as it may be, would nonetheless be wrongheaded; and under U.S. law, it would be an unconstitutional prior restraint, since it would involve the government mandating the blocking of potentially protected speech before a final court judgment that the speech is indeed unprotected. But in any event, we should recognize that it's quite likely that any filtering proposal -- even one pitched as being aimed at child pornography -- will indeed end up being quite broad. And we should evaluate such proposals with an eye towards these long-term consequences, and not just their initial scope.

Dave N (mail):
Professor Volokh,

I agree completely. I am leary of slippery slopes. I agree that once there is a filter, then there will be a strong impulse to expand it. I suspect Australia might rue the day it started down this road.
10.31.2008 2:13pm
Richard Aubrey (mail):
Snork. Cough. Hack. I can't believe it.
A VCer actually taking a slippery slope argument seriously.
We can stipulate, without the bother of having to go through it, forty or fifty posts ridiculing the very idea.........

Glad that's over.

So, anyway, does this mean slippery slope arguments are now legitimate?
10.31.2008 2:15pm
NowMDJD (mail):
I am a gynecologic oncologist. I tried to use the internet to get pictures of vulvar carcinoma for a lecture. My institution's firewall blocked most of this material as pornography.
10.31.2008 2:20pm
bski (mail):
FTA: The plan was first created as a way to combat child pornography and adult content, but could be extended to include controversial websites on euthanasia or anorexia.

I don't like the way this is headed.

Is this merely "officially recommended" or is it definitley going to happen and its just a matter of figuring out the details? The article suggests the latter.
10.31.2008 2:22pm
ginsocal (mail):
And the program to implement international fascism proceeds apace.
10.31.2008 2:38pm
Consider legal material which happens to be inconvenient for the powers that be. If such is "accidentally" banned--perhaps a few days before an election or shareholder vote--, how is anyone to learn of its existence and protest the ban (without getting arrested for accessing forbidden content)?

No doubt some sort of appeals process would eventually be created, but public resources are limited, appeals take time (wink), and it's only to be expected (scowl) that infringers will concoct specious legalisms.
The Australian Christian Lobby's support for the filtering is mentioned at the end of the linked article. Apparently the ACL does not envision scenarios in which they will find themselves at the receiving end of censorship.
10.31.2008 2:39pm
LA denzien:

A VCer actually taking a slippery slope argument seriously.

You do realize that Mr. Volokh did actually write the book paper on how to evaluate valid versus invalid slippery slope arguments, right?

See also.
10.31.2008 2:44pm
The library in Portola California blocks the both the Volokh Conspiracy and Pajama's media because it has "chat based content", I guess that means comments. But of course it does not block the Washington post or other newspapers that allow comments.

We must keep the children safe from bad ideas.
10.31.2008 2:48pm
I'm hoping a lot of the prior comments are just sarcasm going over my head. For those of you who are taking this seriously, I'll say:

1. It's impossible. I once spent some time in Burma - a police state with no functional judiciary and a single country-wide firewall, and the government of which, for some reason, had decided to ban Yahoo! Mail. Now, this is a much simpler proposition than banning "hate speech" or whatever. Yahoo! Mail has a few, fixed IP addresses, it's a very simple procedure to simply block those addresses. Nonetheless, it took me only about a half-hour, working without any sophisticated technical tools or know-how, from an underequipped cyber cafe, to break through and get to my mail. Famously, the Internet interprets censorship as damage and routes around it

2. It's really impossible. Even if it were possible (which as I say, it isn't) to completely block certain sites, the information is not automatically detectable. Someone who wanted to publish any particular piece of information can easily (and cheaply) move it from site to site much faster than a team of bureaucrats could keep up with it.

3. It's a really, really bad idea. I assume I don't have to defend free speech on this forum -- but yes, a world where the government could control what the populace could say is not one where I would want to live, and probably not one where I'd be allowed to.
10.31.2008 2:51pm
Dave N (mail):

Does it also block Kos and Huffington or is it just "bad sites" that are not allowed?
10.31.2008 2:57pm
Scote (mail):
I'm not always a fan of slippery slope arguments, but in this instance the metaphor seems apt. If, for instance, the decide to ban "crime facilitating" speech, including such as obvious examples as "Hit Man," what about mystery novels, where the story describes how a crime is committed? Or, writers manuals for mystery writers that talk about poisons methods of murder? The information in those books is essentially no different than that of "Hit Man" (I presume, having not read the latter) so how does the faceless authority decide what is crime facilitating speech and what is not?
10.31.2008 3:01pm
Bill Dyer (mail) (www):
This is a pity. Let's hope the good folks of Oz fend this proposal off. Thanks for bringing it to our attention, Prof. V.
10.31.2008 3:01pm
Ben P:
As distasteful as the material may be, I'm considering whether or not this means there will be substantial money to be made on the part of those providing means to circumvent the national filters.

As the marginal revolution guys say, there's markets in everything.
10.31.2008 3:18pm
Suzette (mail):
"I assume I don't have to defend free speech on this forum -- but yes, a world where the government could control what the populace could say is not one where I would want to live"

Oh, well then, if you live in the USA, you'd better hope Obama isn't elected. He's not a huge supporter of the first amendment rights of free speech, (or the second amendment rights on owning guns).

There are many instances of Obama and/or followers trying to silence the media, even threats of lawsuits.

Obama says he won't restore the Fairness Doctrine, but I'm sure he isn't opposed to other, more subtle ways the authorities can influence what is or isn't said on radio, TV and internet.
10.31.2008 3:30pm
Richard Aubrey (mail):
One can shout "slippery slope", but without the details, we won't know how the slippery slope will happen.
It still happens.

Point is, shouting "slippery slope" has been a staple of comment on this board slung against those who object to a change on the grounds that it leads to a slippery slope. The implication of the shouting of "slippery slope" is that it means the argument is always invalid and nothing more need be said.
It is usually voiced by those with an interest in getting others to the bottom of the supposedly non-existent slope.
10.31.2008 3:30pm
Dave N wrote at 10.31.2008 1:13pm:
I suspect Australia might rue the day it started down this road.
That depends on what the meaning of "Australia" is.

Some citizens of Australia might "rue the day", but the government of Australia that enacts the law is less likely to. The censorship will give the government unaccountable power to stifle communication of dissent that might relieve them of office at election time.

Those who support such censorship are not stupid. They know exactly what they are doing.
10.31.2008 3:54pm
Of all the places that the danger of slippery slope is cited, I think the internet is one where it is a great threat. There are two main reasons. One is that there is a lot illegal activity, e.g. child pornography, viruses, malware, scams, that could be reduced by tighter restrictions. Second, a lot of money could be made by restricting access to people who don't pay additional fees.

There is a third pressure which political and cultural. We see it in China, and you might hear calls for it from any stemwinding preacher or beleaguered incumbent. I'm not quite so worried about this in the US, though, since it's accepted as a free speech issue. It's a free association issue, too.

Sooner or later, the technology will be morphed by the march of technology. Every new wrinkle will offer a chance to limit access.
10.31.2008 4:01pm
Elliot123 (mail):
Sheriffs and prosecutors in Missouri were threatening to bring criminal charges against people who published campaign material that violated the state's criminal libel laws. Would it be fair to say this material would be considered illegal, and subject to being blocked under the Australian proposal?
10.31.2008 5:20pm
There is a clear principle involved here, the government should not be able to block websites that have controversial ideas of content. The only thing they should be allowed to block is lies and misinformation. To that end the Rudd government should establish a Truth Commission in order to establish what the truth is and then have a clear benchmark for filtering lies and misinformation. Now of course sometimes the truth can be hard to ferret out, it took quite a while for the Vatican to get the truth out of Galileo. But just because a task is difficult does not mean it shouldn't be attempted, and after all in the end Galileo did admit the truth, and countless people were saved from being misled by his lies.
10.31.2008 5:31pm
A. Zarkov (mail):
In the 1380s you could get burned alive for possessing a bible in the vernacular because it was considered a heresy. We like to think we have gone beyond that kind of thing, but we haven't. The Western World is now crafting it's own set of heresies. Lawrence Summers uttered a heresy about women and he was punished. James Watson uttered a mild heresy about blacks and was punished. They only lost their jobs; in Europe you can lose your freedom. Former Antwerp police superintendent Bart Debie has been stripped of all civil rights and sentenced to a year in prison for the crime of "racism." It seems some policemen under his command made racist remarks to arrestees. Although he had nothing to do with the incident, the government held him accountable.

I'm afraid it's a short trip from losing a job to losing your freedom. Do Americans love liberty enough to fight for it? I'm beginning to have my doubts.
10.31.2008 6:54pm
Richard Aubrey (mail):

Sure, if they see it as a loss. But it's always somebody else--usually not our type--who gets the first smack.

That's one reason slippery slope tactics work.

You'll note the Aussie government wants the lumpen to trust their judgment and fairness. Without any accountability.
10.31.2008 7:48pm
einhverfr (mail) (www):
Gotta love Australia....

Different ideas of free speech (along the lines of the "Bad Tendencies" test which lasted all of 15 years in the US)....

Different ideas of fair use of copyrighted material... "Different" meaning in this case "non-existent."

People who see me frequently complain about the US often don't understand-- I love the freedoms of this country and am terrified we are going to join the rest of the world in seriously limiting this sort of thing. How many other countries in the world would have decided Brandenburg v. Ohio the same way we did (on the side of free speech)?
10.31.2008 9:08pm
Freddy Hill:

Yes, it's impossible to have a waterproof firewall (if I may stack the metaphors), but there are two great advantages of a leaky firewall if you are the guy in power:

1. The goal is not 100% accuracy, but control of public opinion. You end up filtering information so that a large majority of the citizenship is not aware that there are different points of view, or in fact, different facts. cf. the Tiannanmen Square massacre: Most Chinese will honestly say that they never heard of that. To them it sounds like crazy moonbatery/wingnuttery from people that have read it "in the internets." Totalitarians do not fear the elites and those with means to get around censorship; they fear the ignorant masses and strive to keep them that way.

2. The real "benefit" of the technology is not the blocking of information, but to find out who is requesting it in the first place. Do you think for a second that the Australian system (which troublingly seems to be based on Chinese technology) will not include ad-hoc "management reports" and "data mining tools" that can be abused with a few keystrokes to produce reports on who's googling "government corruption australia" or some such? If somebody catches them at it, they'll say that it was just a glitch in the system, of course.
10.31.2008 11:05pm
NicholasV (mail):
I suspect Australia might rue the day it started down this road.

I already rue the day, but I'm only 0.000005% of Australia.
The goal is not 100% accuracy, but control of public opinion.

Well, it's certainly affected my opinion of the federal government, however probably not in the manner that they would prefer.
The real "benefit" of the technology is not the blocking of information, but to find out who is requesting it in the first place.

Good luck discovering that through my encrypted proxy tunnel to the server in another country which completely circumvents this whole mess.

I agree with the comment that there's money to be made in circumvention. All you need to do is set up a proxy server in the USA (or some other country with more freedom than us) which accepts SSL connections and sell access to it.
11.1.2008 7:40am
Joe Power (mail):
It is my understanding that the Australian ISPs are almost all opposed to the filtering proposals as being costly and ineffective (knowing that politicians seem to think the cure for ineffective laws is more of them).

Given that uniformity, would not a heckler's veto be effective here? If the ISPs threatened to cut off all service until the government backed off (and guaranteed no reprisals), I suspect it would be a matter of hours at most before Canberra had a miraculous conversion to a strong belief in free and unfiltered speech.

Is this blackmail? Probably, but is it really any different from citizens working and speaking and donating against politicians they dislike? (When does this become a slippery slope?)

One other completely different argument: one of the provisions of the Helsinki Accords on Human Rights (I've never been able to find an exact copy of the treaty, so I can't quote it verbatim) forbids restrictions on the transborder flow of information. Assuming Australia is a signatory to the treaty, wouldn't the ISPs have a good case for having any filtering law that overreached declared in violation?
11.1.2008 3:33pm
SamD (www):
I've been looking at the slippery slope paper, and can't determine exactly how to categorise what kind of slope we might find ourselves on in this situation.

On a side note, I'm very happy to finally have a paper that backs up what I've been trying to tell my PhD supervisor for years: That Slippery Slope arguments are OK sometimes.
11.2.2008 12:55am