Internet Society of Australia
A Chapter of the Internet Society
ACN 076 406 801
Below are comments by the Internet Society of Australia (ISOC-AU)
on the IIA Draft Code of Practice, Version 5.0.
Kate Lance
President, ISOC-AU
30.09.99
In general this version of the Code is better than previous efforts,
and obviously a lot of hard work has gone into it. There are still
some areas that require revision.
A. Definition of ISP
~~~~~~~~~~~~~~~~~~~~
"ISP" stands for Internet Service Provider and includes:
* those providing connectivity to the Internet.
* "carriage service providers" within the meaning of the
Telecommunications Act, 1997 who provide access to the
Internet.
* those persons so defined by the Broadcasting Services
Act, 1992 (as amended).
The line "those providing connectivity to the Internet" should be
removed as it extends the definition of ISP from the legal terminology
of the appropriate Acts to a far wider and potentially unconstrained
population - "providing" and "connectivity" are completely undefined
and have enormous latitude of interpretation.
"Carriage service" is defined in the Telecommunications Act in terms of
"network units", distances, location and ownership of network links, etc.
It's not simply a matter of "providing connectivity".
B. Sections 12 and 13
~~~~~~~~~~~~~~~~~~~~~
Despite the assurances of these sections, the phrase "significant or
material technical, commercial or administrative impairment" is still
undefined, and may have very different meaning to different-sized
businesses. This urgently needs to be defined in real terms - is
"significant" to be calculated as a percentage of revenue, or profit,
or size of consumer base, or what? Without some metric in this area
this assurance means nothing.
C. Content Blocking (Section 12B)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This changes the blocking regime from ABA-specified take-down notices
based on complaints and rigorous classification by the OFLC, to other
regimes, including client-side filtering schemes, yet to be fully or
even partly declared (Schedule 1).
1) Schedule 1: The whole of section 12B depends upon it. It proposes:
- client-side filtering
- optional differentiated services
- password-controlled limited-access systems
- like products and services
* When will Schedule 1 filtering schemes be declared? How can any
organisation accept the Code without this fundamental information?
* Without the schemes being declared how can ISPs provide for or analyse
how the ABA will notify them of prohibited content?
* "according to information provided in confidence to the suppliers of
such measures by the ABA" - why are blackists to be provided in
confidence? These procedures must be as open, transparent and
accountable as possible, otherwise there will be no way to know whether
content is being blocked because it genuinely breaks the law, or
because it has political, religious or social commentary that is being
suppressed for some reason.
2) While this shift from ISP-blocking to systems like client-side
filtering takes a load off the ISPs, and could provide greater
flexibility to users in blocking otions, on the other hand it:
* transfers software costs directly from ISPs to the end-users
* users will require additional expensive help-desk support from ISPs,
who will have little alternative but to recover those costs in higher
fees to users
* Client-side filtering may offer greater choice and flexibility to
end-users but it must not be forgotten that existing software is
notoriously inaccurate, and imposes the religous, social and
political prejudices of its originators. Many of the sites blocked
under standard filtering software do not carry illegal content in terms
of the BSA.
D. The Adminstrative Council
~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Administrative Council is to be made up of five members: an
independent chair elected by the rest of the Council, two members from
the IIA and two from the Australian CONSUMERS Association, who are to
represent "users".
"Users" of what is undefined. In this context the meaning of "users"
is usually "Internet users", and the only body in Australia that
specifically represents Internet users is ISOC-AU, the Internet Society
of Australia. With no disrespect to the work of the ACA, it is not the
appropriate representative of users in this case.
This is a very small and unrepresentative council in any case, and
despite the reassuring consultation provisions in 15.8, ultimately it
concentrates essentially all of the power to change the code into the
hands of IIA.
E. Unsolicited Email
~~~~~~~~~~~~~~~~~~~~
1) Sections 10.7, 10.8, (10.9 is missing), 10.10 all express
obligations with "will not send Unsolicited Email", i.e. they are
compulsory. Sections 10.11 (Acceptable Use Policies), 10.12 (abuse
contact points) and 10.13 (anti-fraud measures such as relay
protection) are modified to "are encouraged to provide" rather than
"must provide".
Why are these not obligations as well? - any reasonable ISP should have
these provisions anyway, and given that clause 60(f) of the BSA deals
with industry providing information to content producers about their
legal responsibilities, and clause 60(i) deals with procedures to
assist customers in making complaints about unsolicited email, sections
10.11, 10.12 and 10.13 should become compulsory, not optional.
2) 10.13 Code Subscriber ISPs are encouraged to install relay
protection on their mail servers, so that the senders of
Unsolicited Email cannot disguise the origin of that email so
as to escape detection or penalty where applicable.
In the case of 10.13, it is also not advisable to restrict the
anti-fraud system to "relay protection on mail servers" - the
technology and the its abuses will necessarily change over time -
"relay or other appropriate protection on mail servers" should be
substituted.
F. Copyright (Section 9.7)
~~~~~~~~~~~~~~~~~~~~~~~~~~
9.7 Code Subscriber Content Providers will not knowingly
place on the Internet material which, if accessed, would
infringe the copyright of another person.
This should be made clearer that the relevant knowledge of the ISP
is that the material infringes copyright, rather than that the material
is being placed on the Internet.