Australia's de-facto net filter has ZERO regulation

Updated A couple of weeks back, Australia's Securities and Investment Commission (ASIC) made a mistake: by trying to take down a Website promoting an investment scam*, it accidentally blocked 1,200 sites using the same IP address as the scammer.

ASIC was able to attempt the take down thanks to a "Section 313 Notice", a legislative instrument that instructs telcos and ISPs to block sites that break Australian laws.

It has now emerged that there is little or no oversight or transparency in how such notices are issued, who's allowed to request one or when they're permitted to make such requests. That means, as a Senate Estimates hearing was told, that nobody really knows exactly how many agencies might have the right to use the notices to, as Greens Senator Scott Ludlam put it, “knock a site off the Internet”.

A “Section 313 notice” refers to this section of the Telecommunications Act. The act requires carriers to try and prevent their networks being used to commit offenses, and requires them to assist an undefined list of “officers and authorities” of the Commonwealth, states and territories in preventing crimes using their networks.

Unfortunately, when the legislation was framed, the legislators had in mind telephones and fax machines, not the Internet. Its application to the Internet was the brainchild of Senator Stephen Conroy, as a way to implement the Interpol "worst of the worst" Internet blacklist (which mainly concerns child pornography) without having to pass new legislation.

While Senator Conroy stated to Estimates that the Australian Federal Police's use of s313 notices in this way has been effective, the s313 notice has become an example of scope creep, with other agencies getting in on the act.

The new problem turned up by Senator Ludlam is this: neither communications minister Senator Stephen Conroy nor his department are completely certain regarding how many Australian government agencies might have the power to request s313 notices. The horizon of the notices' scope is an unknown.

Following a meeting convened by on May 22, 2013 and attended by a number of departments – including the Attorney-General's Department, ACMA, ASIC, the AFP, the Department of Immigration, ASIO and others – Senator Conroy told Estimates that the government will set in train a process to improve the transparency surrounding the use of s311 notices.

The problem, as Ludlam revealed in questioning the minister and his department, lies in the definition of why notices may be sought. Since law enforcement is on the list, he asked whether it might reach all the way down to state police services; and since the “protection of public revenue” is offered as a reason for seeking a notice, he also asked whether the power might extend all the way down to local government (since they collect rates).

That question has had to be taken on notice by the Department of Broadband Communications and the Digital Economy (DBCDE), which Conroy heads.

As of much concern, the DBCDE was also unable to say whether s313 notices had already been used by state agencies, nor how many times they might have been used outside the purview of the federal government. Again, that question had to be taken on notice.

“I've asked the department to provide advice on a number of possible transparency measures,” Conroy said. “I agree … that there needs to be a greater degree of transparency.”

It is, perhaps, a small reassurance that the notices at least don't reach as far as copyright matters. Perhaps. Maybe. When Senator Ludlam asked whether a rights-holder could ask the police to seek a s313 notice, Senator Conroy responded: “I doubt that an individual citizen can walk in [into a police station - El Reg] and ask for a 313.” ®

*Bootnote: The back story is that ASIC requested a block on a site based on the site's IP address. Of course the target was on a shared server, so of course it blew away a whole heap of harmless sites, leading to a public outcry and embarrassment all round. “My lord, I 'ave a cunning plan” is never a good way to approach law enforcement. ®

Update:

Australian Securities and Investment Commission chair Greg Medcraft has reportedly told a Sydney conference his organisation will review its use of the s313 notices.

He said the notices had been used ten times in the last 12 months to bar access to Websites promoting frauds and scams, and that most of these are overseas. ®