speech to ALP IT Committee seminar, May 2004
The Internet started as the province of scientists and a technological elite, but it is now a mass tool, part of basic public infrastructure. It has given to ordinary individuals powers that were previously only the province of corporations or elites. And this has brought rules and regulations designed for those into the ordinary lives of millions. This has created problems for existing laws and poses challenges for new ones.
The short version: Regulating Alan Jones is one thing; regulating the daily activities of millions of Australians is another.
I'm not arguing any kind of technological exceptionalism for the Internet: the techno-libertarian cry "the Internet can't be censored" is as wrong as the rants about it being the source of all evil. Nor am I going to make much ado about international jurisdictional problems. I want to focus here on the social context of Internet use.
I'm concerned with ordinary end users. So not with Australian Broadcasting Authority regulation of ISPs, but with state Internet censorship laws directed at individuals. Not with Gutnick versus Dow Jones, but with people who can't afford lawyers facing SLAPP attacks or music industry lawsuits.
To keep things simple, I restrict myself to the areas of censorship, defamation, and copyright. My basic argument is also relevant to trademarks (domain name disputes), hate speech, and other areas, but probably not to spam or fraud.
Analogies shouldn't be taken too far, but there are two I find helpful here. The first is a revision of the old "superhighway" idea: the Internet as the road system, as basic infrastructure actively used by most people and woven into the everyday course of their lives. The second is that of a pub conversation: an informal, relaxed, and open interaction between peers.
The brief summary.
Some people use the Internet only privately, to access information or for personal communication. But increasingly many are using it for publication. And this brings them within the scope of laws they have never had to think about before. Regulations designed for publishers, television stations, film distributors, and powerful individuals -- the Murdochs and Packers, the Laws's and Jones's -- now apply to ordinary people.
The result is laws that are being widely and openly broken, laws that people don't understand or even know about, laws that are not enforced, and laws whose enforcement is not feasible.
The Internet enables people to publish to a wide audience with ease.
Less than a hundred dollars a month will -- if you're not unlucky in your location -- get you a broadband Internet connection, with which you can run your own web server or start up file-sharing software -- or have your machine taken over by trojans or spyware that do that for you, without you knowing anything about it. Ten dollars a month will get you professional web hosting with a quota capable of serving hundreds of thousands of pages a day. Or you can just post to someone else's site -- open comment threads and discussion forums are widespread. Or maybe your photo development comes with a free web site for sharing your photographs.
And people are doing all these things. A Pew survey in February of this year found that 44% of US Internet users have contributed to public online content in some way -- running their own web sites, posting to discussion forums, putting photos online, and so forth.
It's true that much of the material online has little impact and is read or viewed by few people. But even personal web sites can attain broad readership -- sometimes unintentionally, since search engines can be unpredictable and one link from a prominent site can bring tens of thousands of visitors to a web page.
So people -- millions of them in Australia alone -- are publishing material which can reach thousands to millions of readers or viewers. This brings them within the scope of a range of laws.
People are breaking the law.
Millions of people are breaking the law.
The Pew survey I mentioned found that most users are infrequent publishers. But copying one music track or newspaper article is enough to violate copyright law, especially if the copy is viewed by many people. A single family photo, one explicit joke or story, or even discussion of "adult themes" such as suicide can bring someone within the scope of censorship law. One angry comment about a individual, corporation or organisation, written in the heat of the moment, could be defamatory under some law, somewhere.
The South Australian Internet censorship law and the "held in abeyance" New South Wales legislation make it an offence to make content unsuitable for minors available online. What exactly this means is not clear -- I'll come to that later -- but even on a conservative interpretation hundreds of thousands of Australians are breaking these laws every year.
Music industry figures for losses from illegal copying are a joke -- they assume every illegal copy is a lost sale -- but illegal sharing of music is clearly widespread, and nearly ubiquitous in some circles.
People don't know they're doing anything illegal.
Most people have no understanding of censorship law.
The film classification scheme is the only part of the censorship code with deep penetration into popular consciousness. But no one has any idea how to apply this scheme to text or static images, as Net censorship legislation mandates. Even with films, OFLC -- Office of Film and Literature Classification -- classifiers and review board members often disagree. (And ABA and OFLC secrecy on this means there's no body of precedents to look at.) Perhaps most worryingly, most people have no clue at all that their online speech is subject to such laws.
Online discussion forums often have the mood and feel of a pub conversation. No one is going to consider defamation law in six states -- or a few hundred countries -- before ranting about poor quality products or casting aspersions on evil politicians. Depending on the community, dirty jokes may or may not be appreciated, but no one is going to run them through the OFLC film classification guidelines before posting. And the cut-and-pasting of entire news articles from web sites is no more notable than the passing of a newspaper around the bar.
Even I sometimes get "fair dealing" confused with US "fair use", or tangled up in the complexities of copyright law. And if you try telling people that it's illegal to tape CDs to listen to in the car, to record television programs on video, or to modify DVD players to play DVDs bought from the United States... most of them simply don't believe you.
Enforcement is difficult, irregular and unpredictable.
The state online censorship laws have not been enforced. I know of no cases, though Victoria has had legislation since 1996 providing penalties for "transmission" of content unsuitable for minors. (The implementation of the Commonwealth Net censorship legislation is also a joke, but that's another story.)
Most small-scale copyright infringement is simply invisible, though industry lobby groups are working on changing that.
There are huge inconsistencies in defamation cases: relatively harmless statements about litigious persons can spark litigation while much stronger statements about others pass without notice. And the extent to which lawsuits are used to silence critics is unknown, since many recipients settle out of court and settlements often prohibit the publicising of details.
So what's the problem?
If enforcement is so weak, what's the problem?
Some unlucky individuals will end up as the target of MIPI lawsuits, police prosecution, or defamation actions. And enforcement is likely to be discriminatory, with action taken against those who stick their heads up or step out of line. (The Rabelais "Art of Shoplifting" case was a good example of that in print media.)
Uncertainty is bad for business, and for some more chilling than stricter but more clearcut controls.
Bad laws can discredit good ones. There are real "sharks" out there, and there are many areas where regulation would have genuine popular support and might work effectively. But if it comes as part of a poorly put together package, it can be crippled by association. Nearly every adult shop in Sydney illegally sells X-rated videos, and that undermines the entire film and video censorship system, not to mention regulation of the adult industry.
Finally, unenforced and unenforceable laws bring the law into disrepute. We don't want to turn half the population into criminals, even notionally.
So what should be done?
Why not enforce the law?
One possible response is to send in the helicopter gunships: these laws exist, and however flawed they are, they were created by sovereign democratic parliaments and should be enforced. I hope you can all see the problems with this. There would be huge costs involved, both direct costs of enforcement and indirect "collateral damage".
Direct costs would include the salaries of police and OFLC classifiers -- a back of the envelope calculation suggests that any kind of systematic application of censorship law to online content could go through Australia's entire GDP just in classification fees! -- and the tying up of other law enforcement and legal resources.
Collateral damage includes people accidentally caught up in lawsuits. The Recording Industry Association of America was mass-mailing lawsuits at one point, often inaccurately. Effective enforcement of copyright law would require privacy intrusion on a scale undreamt of. And imposition of Digital Rights Management could throttle the entire computing industry.
And of course some of us are concerned about freedom of speech as a good in itself.
Won't education help?
Education can certainly be an important part of regulation -- consider the resources spent on improving awareness of road rules. But you can't teach unnatural behaviour: stopping people telling dirty jokes in pubs or public discussion forums or sharing music with friends would require something closer to brainwashing than education. (Apparently some of the copyright lobby groups in the US are trying this, sponsoring school programs that explain how evil copyright infringement is. I really can't see this being effective, though no doubt they are getting governments to pay for it.)
So regulatory approaches have to change.
There needs to be an acceptance of the limitations on state power, with regulation restricted to a practical -- and broadly acceptable -- scope. Obviously if legislation is clearly targeted and narrow enough that it doesn't cover everyday activities, that will avoid the problems I've looked at.
Laws that are going to cover ordinary everyday behaviour have to be precise and clearcut, and not too complex to be followed (or as us geeks might put it, "computationally feasible in real time"). So "you shall not drive faster than the signposted speed; you shall wear a seatbelt", not "it's illegal to publish content unsuitable for minors" -- and "that would be classified R, X, or RC under film classification guidelines" isn't much better.
Legislation should be field tested, though actual trials or conceptual modelling. I'm not talking here about letting lobby groups like EFA fight opponents to represent the community, or even about polling. Those things might produce laws that reflect community standards, but they won't tell us how legislation will impact on actual behaviour -- how well people will understand it and how they will respond.
To do this requires looking at what Internet users actually do and evaluating how putative laws would (or would not) apply to and influence them. (I'm thinking here of the kind of testing the RTA carries out before changing road rules.) And that requires consideration of the variety of Internet social contexts: mailing lists are different to bulletin boards, which differ from non-interactive web sites -- and two communities that run on the same technical platform may be radically different, because of their demographics or their culture.
Where a law would intrude into everyday life, and enforcement would be difficult and complex, there needs to be some kind of cost benefit analysis. What is the law actually trying to achieve? How effective is it going to be? What are the costs?
We need explicit recognition of individual rights.
Even with good lawmaking, uncertainty and vagueness are always going to be with us. So individual rights need to be clearly delineated, to provide some positive certainties and reliable reference points. The increasing reach of laws into the lives of ordinary people makes some kind of Bill of Rights more necessary now than ever before.
This brings me to my coda, with some comments on the Free Trade Agreement. In general US law gives greater powers to copyright holders, balanced by stronger explicit rights for individuals. The Intellectual Property clauses of the Free Trade Agreement risk giving us the former without the latter. (One example is the strong protection the First Amendment affords parodies, most notably against trademark enforcement.)
A surprising number of Australians think the US Bill of Rights applies to them. But it doesn't, and without it "harmonisation" of copyright laws -- or adoption of "Patriot Act"-style anti-terror laws -- risks upsetting our existing legal balance.