ASIC Submission Admits Misunderstanding Blocking of IP Addresses

Tuesday 9 September 2014 @ 12.09 p.m. | IP & Media | Legal Research

The debate over retention and access to metadata (see our previous post: Metadata what could go wrong? AFP Accidentally Release Data) continues to draw attention with the ABC recently reporting that in a submission to a parliamentary inquiry looking into which of the Federal Government's Agencies should have the power to block access to websites, the Australian Securities and Investments Commission (ASIC) revealed that ASIC staff who had ordered the blocking of sites in April 2013 did not realise that suspending access to a website would affect many more sites hosted on the same Internet Protocol address (IP address).

Background to ASIC's Action

It was revealed in submissions to a parliamentary inquiry into the Telecommunications Act 1997 (Cth) (the Act), section 313, ordered by Communications Minister Malcolm Turnbull on July 2014, that, in April 2013, ASIC blocked access to two foreign websites "Global Capital Wealth" and "Global Capital Australia", suspected of being hoax or fraudulent sites. In doing so, it is reported, ASIC also blocked more than 1,000 other websites hosted at the same IP addresses, including many legitimate websites.

In its submission, ASIC noted that after being made aware of the problem it had lifted the bans and investigated what had gone wrong. ASIC's investigation revealed that a previous order had knocked out access to 250,000 websites, 99.6 percent of which ASIC also said contained no "substantive" content. It was further revealed that this instance was the last of a run of 10 website blocks ASIC had carried out since 2012 under section 313 dealing with the obligations of carriers and carriage service providers.

The result of ASIC's submission was that while it wanted section 313 retained it wanted clearer rules around the requirements for transparency and information sharing among government agencies.

Others Advocating Changes to Section 313

A recent report on website ComputerWorld indicates that the Australian Crime Commission (ACC) takes the view  that calls for limits on the number of government agencies allowed to issue notices under section 313 of the Act should be rejected. ComputerWorld reports that many government agencies, not only ASIC, have used section 313 to request Internet Service Providers (ISPs) block access to certain websites.

ComputerWorld quotes the ACC submission as stating:

"The success of section 313 for the lawful blocking of websites relies upon private sector compliance with law enforcement requests, . . " .

Thus appearing to go further than ASIC's merely asking for clearer rules, it appears that the ACC, has also raised the possibility of creating penalty mechanisms for ISPs who fail to comply with a notice under section 313.

Further, while it was submitted to the inquiry by various ISPs and industry bodies like, iiNet, the Internet Society of Australia (ISOC-AU), and industry bodies like the Australian Mobile Telecommunications Association (AMTA) and the Communications Alliance that restrictions be placed on the government agencies that can issue section 313 notices, the idea of limitation to a "list of defined offences" and restrictions being placed on the government agencies that can issue section 313 notices was rejected by the ACC .

The ACC,  according to reports, recognises the extent of power to disrupt online services provided by section 313, and instead suggested a "proportionality threshold" which "provide[s] response agencies with sufficient flexibility to respond to a wide range of criminal or national security threats, . . .".

Civil Liberties and the Role of Terrorism in the Debate

On the non-government civil liberties side of submissions, the ABC reports the view put by University of Canberra's Assistant Professor Bruce Baer Arnold who, in his submission to the inquiry, is reported as calling for "a tightening of the law" saying further that:

"It's fairly vague [section 313]. And as a society, we want people to behave in a lawful way, but we have a legal system, we have courts, . . . People are innocent until they're proven guilty, and we shouldn't have possibly an overzealous official in the Australian Federal Police, or in ASIC, or in a trade practices regulator, a consumer protection agency - or even in the RSPCA -to be able to, for example, take particular information off the net for practical purposes, remove websites, take them offline because, well 'I think it's a good idea'."

The above view is countered by the increasing role of "terrorism concerns" in the debate over access to powers such as those provided by section 313. The argument being that wider power and metadata retention are now even more urgently required.

As the Herald Sun reports, police and spy agency all claim their efforts to counter and put down terrorist threats to Australia are hampered by a "lack of access to telecommunications data".

Such agencies, it is reported, fear lack of access and control over web data will make it more difficult to identify, for example, Australians wanting to join terrorist and extremist groups and those returning from fighting with Islamic State in Iraq and Syria.

Concerns are also being expressed about the ability to prevent criminal activity and security threats by ". . . criminals increasingly using hard-to-detect communication technologies, such as Skype and encrypted services".

The Herald Sun reports the ACC's chief Mr Chris Dawson as warning that the already difficult task of tackling terrorist and organised crime groups is being made tougher because metadata isn’t always kept by the telecommunications industry.

More is expected as the debate continues and it will be interesting to see how the balance between civil liberties and state security is struck in any legislative changes that follow from the section 313 inquiry and the meta-data retention debate.

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