FC: Responses on Net-filters from EF Australia, K.Daguio

[Declan McCullagh <declan () well com>]

************

> From: TeamDaguio () aol com
> Date: Tue, 21 Dec 1999 20:42:40 EST
> Subject: Re: FC: Followup: Australians do not have to buy filters
> To: declan () well com, politech () vorlon mit edu
>
> In the US it is not uncommon for an industry (like financial services)
> to establish technical standards, best practices, codes, and guidelines
> that are reasonable, become entrenched and then lead to expectations, 
> regulations, and case law that are as powerful as statute written by a
> legislature.
>
> Privacy and security are typical examples.  
>
> If we were to declare a common information protection practice to be 
> "unreasonable" as in not a "commercially reasonable security" practice and 
> publicized that determination, the institutions engaging in that practice 
> would likely lose nearly every court case involving a security related 
> dispute.
>
> Telling people what your privacy practices are in disclosures and contracts 
> gives consumers many different avenues of action against institutions that 
> are not following their own published policies.  (regulatory enforcement and 
> litigation or legislation)
>
> This is why our focus is on showing people how things work or should work 
> rather than just talking about the right way to do things.   If something is 
> not working right we try to fix it first and then show others how the 
> mitigation measures worked.  This approach leads to credibility and 
> confidence in the system. 
>
> If you police your own community properly you often get either a lesser 
> degree of externally imposed regulatory burden or a reasonably focused 
> regime.  Of course compromising core values is never an option.
>
> It looks like this approach worked in Australia.
>
> Aloha...Kawika Daguio...
> EVP- Financial Information Protection Association (North America)

************

From: Irene Graham <rene () pobox com>
To: declan () well com
Subject: Re: FC: Followup: Australians do not have to buy filters
Date: Wed, 22 Dec 1999 17:49:15 +1000

Declan

Thanks for distributing Mr Coroneos's comments on EFA's media release. Mr
Coroneos seems to have confirmed the accuracy of EFA's comments, however
the following may assist in shedding some further light on this matter.

Dave McClure <dmcclure () usiia org> writes:
> As you may know, we have a strong affiliation with the Internet Industry
> Association in Australia.  I sent the item on filtering to my good friend
> Peter Coroneos, who represents the Internet industry in Canberra as has been
> responsible for much of their saner legislation there.

Mr Coroneos is the Executive Director of the Internet Industry Association
of Australia (IIA). This organisation represents itself as "Australia's
national Internet industry organisation" although according to the
Australian Telecommunications Industry Ombudsman, IIA has attracted only 60
of the some 700 ISPs in Australia as members.

It is a matter of opinion whether the Australian Net censorship legislation
is sane. However, EFA does not disagree that the present situation is saner
than the government's original plan. While Mr Coroneos may well have been
responsible for negotiating amendments to the legislation, his efforts were
no doubt made significantly easier by the massive public opposition to the
Bill. 

> Here's Peter's response to the EFF hysteria about users being force to pay
> for filtering software:

Mr McClure seems to have EFF confused with EFA. These are two entirely
separate entities.

Mr Coroneos writes, regarding EFA's media release:

> "This is deliberate misinformation - 

EFA's comments were based directly on information that IIA has made
available on its website. If EFA has misunderstood something, IIA has only
themselves to blame. Furthermore, ISOC-AU issued a media release on 17
December headed "Internet Users Could Face Substantial Cost Increases Under
Code of Practice".

At issue is the requirement in IIA's Code of Practice that ISPs "provide
for use, at a charge determined by the ISP, an Approved Filter". 

One might ask why this does not say "offer for use, at a charge...".

Stephen Nugent, Manager Online Services Content Regulation at the
Australian Broadcasting Authority (the Code was prepared by IIA for
approval by ABA in accord with legislation) told me during a telephone
conversation on 20 December that it was IIA's choice to include the
provision "provide for use" etc in the Code. 

Peter Coroneos told me by email that evening that "IIAs preferred wording
was 'offer' ". 

Senator Alston's media release, of 16 Dec 1999, states:
"The Code also requires service providers and content hosts to make
available to users at least one filtering device".

So it is not clear who is requiring that users be provided with filters
whether the user wants a filter or not.

> Australians will not be forced to do
> anything of the kind. ISPs will be required to provide these tools to end
> users.  They can charge if they wish, but indications are many will be
> provided free.

EFA did not say that no ISPs would provide filters free. 

IIA's view on this matter is expanded upon in their "Guide for Internet
Users" of 20 Dec 1999 
http://www.iia.net.au/guideuser.html

---begin quote---
Who will bear the cost of filtering?

It is up to your ISP whether or not the costs will be passed on to you. The
IIA does not expect that ISPs should have to carry the cost of the
regulations, indeed we are concerned that the many small ISPs are not
disadvantaged by having to do so.

Remember that by providing you with this software or the filtered service
they are value adding to their service - providing families with a greater
level of protection in the home for content which might be accessible by
children.

Passing on regulatory costs is not a new thing. In every area of running a
business there are compliance costs which go into the operational costs of
the firm. Areas like worker's compensation, insurance, GST tax compliance,
occupational health and safety are all ultimately reflected in the selling
price. In fact, businesses determine their market price by working out what
they need to charge above their costs to make a reasonable return on their
investment and provide them with an income.

This does not mean that end users will face big cost increases because of
this requirement. In fact, we think the increases will be very small, if 
any. Competition in the market will ensure this. The Australian ISP market 
is one of the most competitive in the world, indeed we probably have more 
providers per capita than anywhere else. Also there will be competition
between filter providers. There are already 16 approved in our Code - they
will have to fight it out in the marketplace to win market share."
---end quote---

There is an issue of market competition here, never mind the
censorship-related issues.

IIA is fairly widely regarded as primarily representing "the big end of
town" and a review of their membership list, available on their site, tends
to support that view. As far as I'm aware, without having checked in
detail, the cheapest "Approved Filter" on IIA's approved list costs around
AUD$30 / US$22. It seems unlikely that small ISPs, say those with 1,000
customers, will have AUD$30,000 available to "provide for use" a filter to
each existing customer (bulk discounts may assist, but nevertheless free 
provision would negatively impact on already said-to-be low profit 
margins).

As the IIA Guide above points out, there is competition in the Australian 
market place. ISPs who do not provide filters free may indeed find 
themselves at a competitive disadvantage. And, if their profit margins 
preclude genuinely absorbing the cost (and they may not be able to achieve
the same bulk discounts as large ISPs), it seems they could be forced out
of the market. This would further limit Australian consumer choice.

> Users will not have to implement the filters - that remains optional. The
focus is 
> on empowering end users. 

One might ask - how is an ISP supplying a filter not of a user's choice, 
and without any warnings as to the short comings of that filter, supposed
to "empower" the user?

> It would be a different matter entirely if
> users were forced to use this stuff as a condition of access. 

Mr Coroneos does not deny that ISPs may charge for filters, and in EFA's 
view if a user wishes to use an ISP who cannot afford to provide filters 
free, they should not have to say they have either installed (as the Code 
says) or are using (as the Guide for ISPs says) an Approved Filter, in 
order to avoid paying for one, if they do not want to use one.

> The
> registration of our code guarantees that there will be NO MANDATORY BLOCKING
> of content in Australia - as would have been the case had we not got
> involved.

Mr Coroneos apparently considers himself a visionary. Notwithstanding what
might have happened without IIA's involvement, or if IIA had taken a
different stance, registration of the Code guarantees no mandatory
blocking, presumably, at least until the Code is reviewed by the ABA within
18 months. 

> The IIA has published a guide to end users on our site that dispels some of
> this garbage.  

IIA's Guide contains misinformation. For example, it states:

"Does the new regime mean the Net will be Censored?

No... "

However, Section 7.9 of IIA's Code sets out what ISPs must do when they are
notified by the ABA to remove content hosted by them or within their 
control and within Australia. Obviously, mandatory take-down of content on 
government demand is censorship. IIA's Guide appears intended to support 
their (false) claims that they've saved Australians from Net censorship.

> The comment about 'secret lists' applies with any
> commercially available filter products in the market right now.

That (almost) all blacklists are secret does not dispel the problem with
government sanctioned secret lists. The Approved Filters result from a
report commissioned by the National Office of the Information Economy, part
of the responsible Minister's Department. The report was provided to NOIE
last week. It has not been made public.

Relevant URLs for further info are appended.

Regards
Irene

(This message may be freely distributed by anyone to appropriate fora.)

======
Background info:

Telecommunications Industry Ombudsman's media release, 16 Sep 99
http://www.tio.com.au/media/release_03.html

Minister for Communications (Senator Alston) media release, 16 Dec 99
http://www.dcita.gov.au/cgi-bin/graphics.pl?path=4707

IIA's Code of Practice
http://www.iia.net.au/code6.html

IIA's Guide for Internet Users
http://www.iia.net.au/guideuser.html

IIA's Guide for ISPs
http://www.iia.net.au/guide.html

NOIE filter evaluation study - call for info on filtering products
http://www.noie.gov.au/ecom/filter.html

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Irene Graham, Brisbane, Queensland, Australia. PGP key on h/page.
Burning Issues: <http://www.pobox.com/~rene/>
Secretary, Electronic Frontiers Australia: <http://www.efa.org.au>
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~




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