The Volokh Conspiracy - 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.

	[Eugene Volokh, October 31, 2008 at 12:50pm] Trackbacks 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.