Analysis: Are there worse alternatives to net filtering?

The Internet is already filtered, says cyber-law academic Alana Maurushat, often in ways even less transparent than legislated ISP-level filtering.

Maurushat, an academic at the University of New South Wales' Cyberspace Law and Policy Centre, is firmly opposed to the Federal Government's proposed Internet Filtering scheme.

Her concerns are the lack of clarity around the aims of the trial and the legal ramifications of Internet Service Providers (ISPs) being appointed 'sheriffs' of the internet.

But any analysis of the filtering trials, she said, should take into account some other, potentially more challenging means by which our Internet experience is already censored.

"Filtering happens today," she said. "It is just not occurring en-masse like what is being proposed."

Censorship by self-regulation

First and foremost, our experience of the internet is already censored by the internet industry itself.

"Google and other search engines, without a shadow of a doubt, are already blocking content," Maurushat says.

"Google is in effect the Internet's policing agency. It does a lot of the functions soon to be expected of ISPs already."

Her assertion is confirmed by Rob Shilkin, communications manager at Google Australia.

"We remove results from our index only when required by law and in a small number of other instances, such as spam results or results including unauthorised credit card numbers," he said.

"Where feasible, we tell our users when we remove results, for example by forwarding DMCA notices to Chilling Effects for publication."

ISPs too, "conduct all kinds of censorship," according to Maurushat, "but we don't know the extent to which they are doing it."

Service providers need to follow Australian law on one hand, being "required to remove access to a locally-hosted site with expediency when material is deemed illegal," but also follow an industry code of conduct, which can sometimes present further challenges.

ISPs the world over tend to follow a code of conduct, Maurushat says, but "the effect of these codes on the law can be dubious.

As an ISP, you are not legally bound to self-regulation. But in some jurisdictions, not abiding by the code might risk your license not being renewed."

This form of censorship can potentially result in less accountable outcomes than a legislated form of filtering, she says.

"At least legislation is transparent," she says. "In Canada and the United Kingdom, internet filtering is not legislated but there have been initiatives from the ISPs themselves to get together and filter the internet behind the scenes."

ISP's generally "do not want to perform" policing functions, she says, which suggests this kind of self-regulation is politically motivated.

"This filtering was politically coursed. The politicians told the industry in no uncertain terms that if they didn't do something now, we'll regulate and it won't be pretty for you."

Self-regulated or not, Maurushat says it is inappropriate for a commercial organisation such as an ISP to be charged with a censorship role.

It both abdicates the responsibility of the State to the ISP, and allows the State to "externalise" the cost and discretion of policing to the private sphere.