A draft document setting out guidelines for the use of Section 313(3) of the Telecommunications Act 1997 contains some useful material for government agencies but also has some significant flaws, according to industry group Communications Alliance.
A public consultation on the draft guidelines closed earlier this month. Section 313 has been employed by agencies to request that Internet service providers block access to overseas hosted sites, for reasons ranging from online scams to combating the spread of malware. (Pirate website blocking by copyright owners is covered by a separate mechanism.)
The guidelines were developed in response to a parliamentary inquiry into the use of Section 313. That inquiry was itself sparked by a high-profile bungle involving the Australian Securities and Investments Commission (ASIC).
ASIC accidentally had some Australian ISPs block access to hundreds of thousands of sites unrelated to the fraud-linked sites the watchdog organisation was targeting.
The guidelines are intended to prevent a repeat of the incident, with the report of the parliamentary inquiry, released in June 2015, rejecting any watering-down of the Section 313 power.
However, the Communications Alliance in its submission on the draft guidelines repeated its concern that the material covered in the document should be incorporated into primary legislation. The submission was co-authored by the Australian Mobile Telecommunications Association
The groups noted that the guidelines will only be mandated for federal government agencies, not state and territory agencies.
The current legislation is broadly worded, compelling telcos to "give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary" for "enforcing the criminal law and laws imposing pecuniary penalties", "assisting the enforcement of the criminal laws in force in a foreign country", "protecting the public revenue", and "safeguarding national security".
As a result, a wide range of agencies have access to the power and can employ it for a large variety of reasons.
“The Associations contend that the range of agencies making use of s313 for the purpose of website blocking ought to be more limited than is currently the case,” the submission states.
There should be a “gating” process for imposing website blocking, it adds. Agencies that wish to employ the mechanism should obtain sign-off from the portfolio minister, with individual website blocks approved by a senior officer within the agency.
Other areas of concern include the scope for agencies to temporarily abandon the guidelines “due to operational, security or other reasons”; for agencies to require consideration of additional factors when seeking a block (“requiring consideration of the general factors be guided by the stated national objective to ‘champion an open, free and secure internet’”); and for ‘stop pages’ to be hosted by the relevant agency.
‘Stop pages’ for blocked sites should “implemented in all cases and that they contain as much information as required and can be given in the circumstances to enable impacted customers and website owners to contact the appropriate agency”; the current draft says that such pages should be published “where appropriate”.
The full submission is available online (PDF).