Monday, 1 June 2015
Infrastructure and Communications Committee; Report
On behalf of the Standing Committee on Infrastructure and Communications, I present the committee's report entitled Balancing freedom and protection: Inquiry into the use of subsection 313(3) of the Telecommunications Act 1997 by government agencies to disrupt the operation of illegal online services, together with the minutes of proceedings.
One of the significant challenges faced by all governments is the need to balance the safety of the community with the rights of the individual—rights that are vital to a healthy democracy and an accountable government—in this case, freedom of speech.
The internet has brought with it unprecedented economic and social opportunities. It has transformed the way we live and work, undoubtedly for the better. But there are some in our community, and abroad, who seek to use it for corrupt purposes. The examples are varied and many.
The internet has created new markets, but also the means for producers and peddlers of child abuse material. It has provided a global forum for terrorist organisations and recruiters, and has put these organisations within easy reach of impressionable young people. It has facilitated the trade of illicit goods and services, and allowed scammers to target vulnerable people for their hard-earned money and personal information anonymously.
How we deal with these threats is a question of balance. To do nothing would constitute an abdication of duty, but to go too far would risk trampling those very rights and freedoms we seek to protect. So, too, an overzealous censorship programme would muffle the critical voice of the electorate and erode the accountability of government.
The committee has grappled with these questions, and I believe has struck the right balance between these competing priorities. The committee examined the appropriateness and efficacy of using section 313 to disrupt illegal online services, and determined that there remains an indisputable need for government agencies to have access to these powers.
Section 313 provides Australian government agencies—including state government agencies—with the ability to obtain assistance from the telecommunications industry when upholding Australian laws. Amongst other things, it enables government agencies to request internet service providers to provide such help as is reasonably necessary to disrupt the operation of illegal online services by blocking access to websites.
The committee acknowledges the technical difficulties in disrupting illegal online activity. Illegal online material can be hosted and accessed by those determined to do so, and illegal activity can be undertaken on secure networks. Nonetheless, the committee is of the view that the disruption of websites is very often technically feasible and, where that is the case, can provide an effective means to frustrate criminal activity. It certainly discourages inadvertent or casual contact with illegal online services.
The committee is conscious of public concerns that have been raised about the current lack of clarity and transparency in the use of section 313. This failing contributed to the inadvertent blocking of websites by ASIC in 2013, and made it difficult to identify and correct the error in a timely way. The committee acknowledges past mistakes, and sets out a way forward for the effective use of section 313 by government agencies.
The committee has formulated two key recommendations which it believes will ensure that future uses of section 313 by government agencies are appropriate, targeted and effective. The committee has recommended the creation and adoption of whole-of-government guidelines for the use of section 313 by government agencies, which include:
The committee has also recommended that agencies using section 313 to disrupt the operation of illegal online services have the requisite level of technical expertise to carry out such activity, or established procedures for drawing on the expertise of other agencies. The committee believes that these measures will preserve the effectiveness of section 313 while mitigating potential problems flowing from its use.
My appreciation goes to the individuals and organisations who offered submissions and testimony, and whose insights informed the committee's final report. The evidence received was diverse and challenging, and the report is better for that.
I also wish to thank my colleagues for their constructive contribution, and particularly the committee secretariat for the significant way in which they have supported the work of the committee.
On behalf of the committee I commend the report to the House.
Report made a parliamentary paper in accordance with standing order 39(e).
Can I endorse the comments of the chair and thank her for the very fair manner in which she chaired this inquiry. The recommendations of the committee are unanimous and have the support of the Labor members of the committee. As the chair has pointed out, section 313 of the Telecommunications Act provides Australian government agencies, including state government agencies, with the ability to request internet service providers to help and do what is reasonably necessary to disrupt the operation of illegal online services by blocking access to websites. These requests are not the subject of a warrant or a court order; they simply can be made by a government agency, and ISPs are asked to cooperate. Subsections (5) and (6) of section 313 provide an indemnity to those ISPs that do comply with the request for action in blocking.
There is no doubt that there is a need for provisions such as these in Australian law, and that is certainly supported by the evidence that was presented to the committee, particularly in respect of child sex abuse sites. Evidence was presented to the committee that Interpol operates and maintains a list of child sex abuse sites and, between 1 July 2011 and 15 October 2011, Telstra blocked 84,000 attempts by Australians to access child sex domains on the list. So the evidence clearly presents that there is a requirement for these types of provisions. The provisions are also used to prevent financial fraud. I am told by evidence before the committee that, over the period 2011 to 2013, there were a total of 32 requests made using section 313. Twenty-one of those requests were by the AFP in respect of child sex abuse sites, 10 of the requests were by ASIC in respect of financial fraud, and a single request was by the Attorney-General's portfolio in respect of terrorism grounds. So the need is clearly there.
If the need is there, why was the inquiry conducted? The inquiry was conducted because in March 2013 the Australian Securities and Investments Commission made a request to certain ISPs to block fraudulent websites, but in doing so they inadvertently blocked over 1,000 legitimate websites, including Melbourne Free University, which is no doubt a very big business that operates in Australia. The problem was that it took several days for Melbourne Free University to discover that their website had been blocked. Then it took a further several days for the block to be lifted. Under the provisions as they currently exist in the act, there is no recourse for Melbourne Free University—or the other 1,000 or so websites that were blocked. That became the subject of a ministerial referral to our committee.
In summing up the findings of the committee, the key is balance. We all understand the need for these provisions but the necessary guidelines need to be put in place to ensure there is balance and to ensure that appropriate safeguards are undertaken before blocks and checks are made. That is the subject of the committee's recommendations.
Based on the evidence presented to the committee we made two recommendations. The first is for whole-of-government guidelines to be developed so that the balance can be right and so that the appropriate checks are undertaken by agencies before blocks are made. They include: internal policies consistent with the guidelines; clearly defined authorisations at a senior level before a block is undertaken; defining the activity subject to the disruption; industry and stakeholder consultation; the use of stop pages so that when a block is made it goes up on the page indicating the agency that has requested the block, the reason for the block, an agency contact and an avenue for review; public announcements, where appropriate, through media releases and the like; and a review of the appeal process and reporting arrangements. Of course we have also recommended that agencies have the requisite technical expertise.
Once again, thank you to the other members of the committee. Thank you in particular to the secretariat for the excellent job that they did, and in particular to all of those Australians and organisations that made very thoughtful submissions to this inquiry. I think it is fair to say in these recommendations we have got the balance right.