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April 14th, 2009

Senator Conroy Blacklists His Own Policy

By Mark Newton

To the complete astonishment of many listeners, Senator Stephen Conroy, the Minister for Broadband, Communications and the Digital Economy, made an amazing statement under questioning by Kate O’Toole on Triple J’s Hack programme on 7 April 2009:

Senator Conroy– As we’ve always said, this is about Refused Classification. This is about material that is currently Refused Classification like child pornography, bestiality.

Kate O’Toole– The stuff on the ACMA blacklist though that isn’t RC, that isn’t Refused Classification, the blacklist is broader than that. So are you only going to be–

Senator Conroy– We’ve never stated that we were going to do anything other than Refused Classification.

That was an extraordinary claim because it contradicted a statement the Minister took great pains to make one week earlier, during the Insight programme on SBS when he said, in relation to the intended mandatory censorship system, “we are talking almost exclusively about refused classification.” So on 31 March it was “almost exclusively” RC, then on 7 April it was flat-out only RC.

So is the Minister telling the truth?

The reason he has “clarified” his position is because a file purporting to contain the August 2008 version of the ACMA blacklist was published by Wikileaks on 18 March 2009. Then two additional files containing lists dated 18 March 2009 and 19 March 2009 were published on the following day. The Minister and ACMA both strenuously denied that the August 2008 list was authentic, but were forced to agree that the new lists were substantially the same as the actual ACMA list as it dawned on them that any member of the public could verify the list’s authenticity for themselves by loading-up an ACMA approved PC filtering package and attempting to visit all the listed URLs.

A crowd-sourced analysis of the lists has been proceeding ever since their publication, with amateur “prohibited content” researchers oscillating between states of outrage and hilarity as they scour the list to try to determine what, exactly, ACMA was thinking when they constructed it. The overwhelming majority of the list consists of legal adult pornography, which isn’t at all surprising when one considers that the law which authorizes the creation of the list requires ACMA to blacklist anything classified higher than R18+, some categories of MA15+, and anything which they guess “would be” classified as such if the Classification Board ever had a chance to examine it.

So it has become politically untenable for the Minister to claim that his mandatory ISP censorship policy is in any way associated with the leaked blacklists. It’s downright embarrassing for the Government to contemplate a world where Australians are “protected” from dentists, boarding kennels and school tuck-shop consultancies, and interested Australians are rightly outraged at the notion that the Government would dare to block online copies of Bill Henson’s G- and PG-rated artistic photography. Many are also profoundly disturbed by the sneaky way the Government is attempting to ban online what can quite legally be obtained offline.

It was the Russian Mob, you understand.

So the Minister has been walking-back his policy. On 31 March it was “almost exclusively Refused Classification” that would be blocked. On 7 April, “We’ve never stated that we were going to do anything other than Refused Classification,” and no “almost exclusively” about it.
Which is, of course, a complete lie.

It’s perplexing to wonder why the Minister would lie about something like this, because his previous statements have left a trail of rhetorical breadcrumbs from the present day all the way back to the policy document the ALP released five days before the 2007 election. With no mandatory censorship in place, the Minister isn’t exactly in a position to blacklist his own words. Yet.

So that you can see the nature of the lies for yourself, here is a selection of places in which the Minister has referred to his policy in terms of “ACMA Prohibited Content” or similar. I’ve provided each example as a quote with a dated link to a primary source. You don’t have to believe me, you can believe the Minister as he repeats over and over again that his policy is all about censoring ACMA Prohibited Content.

ACMA Prohibited Content is defined by Section 20 of Schedule 7 to the Broadcasting Services Act 1992. Minister Conroy knows exactly what it means because he voted to add MA15+ content to the definition in late 2007. ACMA prohibited content consists of RC content, X18+ content, R18+ content which isn’t behind an age-verifying Restricted Access System, and MA15+ material which is sold for profit and not age-verified.

Despite the Minister’s denials, there’s no doubt at all that until 18 March 2009 the Minister’s policy required mandatory blocking of ACMA Prohibited Content by ISPs.

And that’s not the same as “Refused Classification” at all, is it Minister?

Labor’s Plan for Cyber Safety, November 2007:
Internet Service Providers (ISPs) will filter out content that is identified as prohibited by the Australian Communications and Media Authority (ACMA). The ACMA ‘blacklist’ will be made more comprehensive to ensure that children are protected from harmful and inappropriate online material.

Minister welcomes advances in internet filtering technology, ministerial press release, 28 July 2008:

The Australian Government is committed to ensuring all Australian families can utilise ISP filters that block prohibited content as identified by the Australian Communications and Media Authority.

Environment, Communications and the Arts committee, Senate Estimates, 20 October 2008:

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.

Request for Expression of Interest, ISP Filtering Live Pilot, DBCDE 11 November 2008:

ISPs are invited to participate through two streams:

1. Filtering the ACMA blacklist of prohibited URLs; or
2. Filtering the ACMA blacklist, and also providing additional content filtering
e.g. dynamic filtering of other unwanted internet content and non web based applications (such as peer-to-peer networks).

Technical Testing Framework, ISP Filtering Live Pilot, DBCDE 11 November 2008:

The Pilot is seeking to test a range of filtering solutions, using as a minimum filtering based on the ACMA blacklist.

The specific filtering solutions proposed, and the size of the customer base to be filtered, is a matter for negotiation with the applicants. However, all participants in the Pilot must, at a minimum, filter the ACMA blacklist.

Answer to Questions from Senator Scott Ludlam, Senate Question Time, 11 November 2008:

Senator Conroy– The pilot will test filtering specifically against the ACMA blacklist of prohibited internet content, which is mostly child pornography, as well as filtering of other unwanted content. While the ACMA blacklist is currently around 1300 URLs, the pilot will test against this list as well as filtering of a range of URLs to around 10,000 so that the impact on network performance of a larger blacklist can be examined.

Address to ALIA Information Online Conference, Senator Stephen Conroy, 20 January 2009:

For many years, ACMA has had the power to issue a ‘take-down’ notice requiring that prohibited content hosted in Australia be removed from the internet.

But the internet has no borders, and Australians have far greater access to material than that hosted in Australia.

What the Government is examining is how technology can assist in filtering internationally-hosted content that is not subject to this take-down notice.

Environment, Communications and the Arts committee, Senate Estimates, 23 February 2009:

Senator BERNARDI—But, Minister, you have referred repeatedly to illegal content and you have given a description of what you describe as illegal, but illegal exists in a far wider range than that. Can you tell me whether you will or will not be blocking MP3 download sites, because that is actually theft under the law?

Senator Conroy—The discussion of ‘illegal’, as Ms O’Loughlin has said, has been revolving around the broadcasting classification act. We have made it perfectly clear that this is linked to the Broadcasting Services Act classifications; it is not around anything else. Anyone who has attempted to suggest that other content will be blocked under any Labor plan is just misrepresenting our policy.

So there you have it: As recently as 23 February 2009, the Minister definitively stated that anyone claiming that anything other than content banned by the Broadcasting Services Act was “misrepresenting our policy.”

So the question must be asked: Is that what Senator Conroy is doing now?