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Australian GovernmentDepartment of BroadbandCommunications and the Digital Economy

Consultation Paper

Improved transparency and accountability when blockingonline content via section 313 of th elecommunications ct

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ontents

Introduction 3cope 4

Background 4Proposed approaches 5Policy objectives o blocking 5Material which may be the subject o targeted blocking 6Persons who can request content be blocked 7Steps before implementing a block 7Information to be provided when requesting blocks 8Appeal and review process 9Reporting 9AppendixA

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lnt ro urtionThis paper discusses options for improving transparency and accountabili ty around government use ofsection 313 of the Telecommunications ct 997 to block online content.The purpose of this paper is to encourage discussion and seek public comment on the proposed options.The Department of Broadband, Communications and the Digital Economy invites interested parties tomake wr itt en submissions by XXXXX 2013, and in particular seeks responses to the principles putforward in the paper. Comments are welcome from anyone who has an interest in the use bygovernments of section 313 to block online content.Submissions should be sent to XXXXXXXThe contact officer is XXXXX who may be contacted at XXXX.Please note that , unless requested otherwise, all submissions may be made publicly available ordisclosed to another Commonwealth agency.A request made under the Freedom of Information Act 982 for access to a submission markedconfidential will be determined in accordance with th t Act.The Department of Broadband, Communications and the Digital Economy complies with the Privacy ct

988 when collecting, using and disclosing personal information. The Department s Privacy Policy canbe viewed at http://www.dbcde.gov.au/privacy


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. ~ 1 0 p lThe purpose of this paper is to seek public comment on options to improve transparency andaccountability around the use of section 313 of the Telecommunications ct 1997 by governmentagencies to block online content. The use of section 313 for purposes other than blocking of onlinecontent is out of scope, as are unrelated issues such as data retention, privacy and broad based filteringof online content.

I L l r i H ~ r o u ndRequests by government agencies to block online content are made pursuant to section 313 of theTelecommunications Act 1997 (the Act). Under subsection 313(3) carriage service providers arerequired to give officers and authorities of the Commonwealth and of the States and Territories suchhelp as is reasonably necessary to:

enforce the criminal law and laws imposing pecuniary penalties assist the enforcement of the criminal laws in force in a foreign country protect the public revenue safeguard national security

Limited blocking of online content by government occurs where it is considered that there is a strongpublic or national interest to do so. For example, a number of Australian internet service providerscurrently block access to extreme child abuse material on INTERPOL s Worst of' list in an arrangementwith the Australian Federal Police. The Australian Securities and Investments Commission (ASIC) hasrequested blocks on websites which have been found to be committing serious financial fraud onAustralian citizens.In April 2013 one such request by ASIC resulted in the inadvertent blocking of a number of unrelatedwebsites, including that of Melbourne Free University. The block drew considerable media and publiccommentary which highlighted a need for the introduction of improved transparency andaccountability measures around this process.In response, the Department undertook to investigate options for improving transparency andaccountability. The Department has sought input from other Commonwealth Government agencies anddeveloped this consultation paper seeking public comment on the proposed options.

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can help to alert potential users of the risks associated with accessing content that has beendesigned to perpetrate crime when used in conjunction with a block page notification.

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Material \\hich l l l . l he the ~ u h j l r t oftargPted blotl\ingOne of the criticisms of section 313 is that the legislation is very broad it is unclear who can use it andfor what purposes. n some respects this is an intended outcome of the legislation. Section 313 waswritten in such a way as to give reasonable flexibility to enforcement agencies as to the type ofassistance that can be sought from the telecommunications industry blocking of online content issimply one form that assistance may take.While there is some discretion in the purpose for which such assistance may be sought it does notprovide for unfettered blocking of the internet. Subsection 3 limits requests to:

enforcing the criminal law and laws imposing pecuniary penalties assisting in the enforcement ofthe criminal laws in force in a foreign country protecting the public revenue safeguarding national security

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Question: What other steps could be employed to ensure the integrity of a section 313 action so thatinadvertent blocking of content does not occur?

nformation to lw provi r when requesting hlorksWhere doing so does not jeopardise ongoing investigations or other law enforcement and nationalsecurity concerns,I S hhis would serve to bothimprove the transparency of blocks while also drawing additional public at tention to a particularproblem.In addition to this, agencies should, when making a block request, provide carriage service providerswith a standard government 'block page' similar to the stop pages used by the INT RPOL scheme whenblocking online child abuse material. The block page should, where appropriate, provide users withinformation about why a particular site has been blocked, and who to contact for further information orappeal.


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Question: Does a block page notification with relevant contact details for appeals provide sufficienttransparency with regards to section 313 use?

,\ppe,ll liJd rt il \> plot . \ > >Under current arrangements avenues for the public to appeal the legitimacy of a block are notimmediately clear. Good practice is to have both internal and external review options available and forthese options to be immediately accessible.A common sense and pragmatic form of internal review is simply for an agency to reassess a block atthe request of a complainant. It is expected that in most instances this form of review will quicklyresolve concerns. Of course this can only operate effectively if the agency uses a block page withrelevant information or a public announcement with relevant information or both. For example ifinnocuous content has been blocked unintentionally the responsible agency can ask the relevant ISPs tocease the block. Alternatively if the responsible agency is of the view that a block is necessary andappropriately targeted it can relay the rationale for this to the complainant.Mechanisms for external appeal or review exist to some extent for carriage service providers asked toprovide assistance. An ISP for example could refuse to comply with a request which would ultimatelylead to a decision of the ACMA about whether they were in breach of the Act.For individual users and content owners there are few external appeal processes where the outcome ofan internal review proves unsatisfactory. The Administra tive Decisions Judicial Review) ct 1977process is one such avenue of appeal however this is likely to be a time-consuming and expensiveoption. Likewise a complaint may be lodged to the Commonwealth or State Ombudsman- notinghowever that a decision by the Ombudsman is not enforceable.

Question: What other appeal mechanisms could be considered with regards to section 313 blockdisputes?


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