Government agencies such as the Australian Federal Police and ASIC have been blocking websites since at least 2004 with no oversight a Senate hearing on the 30th May 2013 was told. Until last week I had not heard of section 313 of the Telecommunications Act, which is what is being used to block websites by at least three government agencies without the need for a warrant from a judicial officer.
The same Senate hearing was told that the Federal Police have also been obtaining phone records using section 178, 179 and 180 of the Telecommunications (Interception and Access) Act and once again without the need for a warrant.
For example in 2010-11 there were 50,841 requests for phone records by the AFP from service providers and in 2011-12 it was 43362. The AFP requests sometimes also include details of IP addresses etc.
This is similar to the NSA Prism program that has been revealed in the last week where the US Government has been caught mining data from the likes of Google, Facebook and telecommunication companies. They have been doing this on a global basis which most likely affects Australians as well. (Click here to read more) The NSA Prism program whistleblower Edward Snowden is now on the run in Hong Kong. In the video below Edward Norton says why he decided to blow the whistle.
The video can also be watched by clicking here.
WikiLeaks have covered this fairly well:
“And what of Australia?”
“Under Australian Commonwealth, state and territory laws, police and security agencies currently have access to data about which Internet sites you have been looking at, who you are calling and who is calling you, where you are located when using your phone or accessing your email account.”
“This information can be gathered without the need for agencies such as ASIO, the Federal Police or state and territory police getting a search warrant from a judicial officer. All that is required is for a senior officer of those organisations to give permission.” (Click here to read more)
Blocking internet sites
Senator LUDLAM: I will explain the context, but in a moment. I have been referred here by another agency who refused to answer a question and said I should talk to the Attorney-General’s Department. But let us come back to it and it might be disclosed as we go. Commissioner, the Federal Police uses Section 313 notices under the Telecommunications Act to compel internet service providers to knock out a subset of content listed by Interpol—their so called ‘worst of’ list—and maybe you want to just track back for us the history of when you first started issuing those, and how you think that process is going.
Mr Negus: Thank you for the question, I will again pass to Deputy Commission Phelan, who is in charge of our high-tech crime operations area, which monitors these things.
Mr Phelan: The information that I have here is that the first time we started to issue 313 notices specifically in relation to blocking websites was in relation to the Interpol ‘worst of’ list on 24 June 2011.
Senator LUDLAM: To your knowledge, has the AFP used that section or powers authorised by that section of the act in that way before to knock content out of websites?
Mr Phelan: Yes, we have. Previously, we have used section 313 as part of the mitigation strategies from the joint banking and finance team within the Australian high-tech crime centre. That commenced in about May of 2004. Those were traditionally used to block foreign IPs hosting muling, phishing and other malware sites.
And further on where it becomes almost comical:
Senator LUDLAM: Yes, I am familiar with that. ASIC is using these notices to knock out certain categories of sites and there is an overblocking instance. There is one other agency—I was just told before by the minister for communications—within the Attorney-General’s portfolio also using these notices. Could somebody at the table illuminate me as to who that is?
Mr Wilkins: Sorry, we do not comment on national security matters, Senator.
Senator LUDLAM: So it is a national security agency?
Mr Wilkins: We do not comment on those matters.
Senator LUDLAM: So it is a national security agency?
Mr Wilkins: We do not comment on those matters, Senator.
Senator LUDLAM: You are commenting. You just told me it is a national security matter.
Senator Ludwig: No, he said that he was not commenting on it.
Senator LUDLAM: I did not ask whether it was national security. Somebody within the Attorney-General’s portfolio, which is significantly broader than national security, is using section 313 notices to knock content off the web.
Mr Wilkins: It is a national security matter. We are not commenting on it, Senator.
Senator LUDLAM: That has been very useful. Thank you, Mr Wilkins. So, back to the AFP. ASIC and one other national security agency is using these notices to knock out particular categories of content. I will not comment on this agency, which will not be named for some reason, but as far as ASIC is concerned, this content is unlawful and is therefore being knocked out for that reason. Does the AFP consider the use of these notices for other forms of unlawful content, whether it be for copyright infringement, or take a pick of all sorts of material, that these notices would be used to take that content out, and if not, why not?
Mr Phelan: The short answer is no. We do not have plans.
The full transcript can be read on the parliament website by clicking here. In the transcript it is Senator Xenophon who asks the questions about the AFP obtaining phone records.
Australian Securities and Investments Commission (ASIC)
ASIC used a section 313 notice to block a website that was allegedly being used for fraud in April 2013.
“The federal government has been accused of sneaking mandatory web filtering through the back door after one of its agencies inadvertently blocked 1200 websites using a little-known law.”
“ASIC caused the blocking by giving ISPs the IP address of the shared server the websites were hosted on, rather than disclosing the allegedly fraudulent website’s domain name, which would have resulted in only blocking it and not other websites.”
“At the time, Dr Mark Gregory, senior lecturer at RMIT University’s school of electrical and computer engineering, wrote on The Conversation that the decision “may have inadvertently opened the door for unlimited government and police control of the internet”.” (Click here to read more)
Open to Abuse
Last year “Following years of debate about trying to censor the internet, the Communications Minister, Stephen Conroy, said the government would no longer proceed with ”mandatory filtering legislation”.” (Click here to read more)
Yet the government seems to have achieved internet filtering through the back door with section 313 notices and had been doing so for a number of years. So why was the government trying to bring in mandatory filtering legislation when they already could block websites. One has to surmise the government wanted to block a lot of sites, not just ones acting illegally, which the section 313 notices would not cover.
Here is a scenario to think about where abuse could take place. I wrote a post highly critical of Federal Police Commissioner Tony Negus a couple of weeks ago titled “AFP Commissioner Tony Negus caught bullying and bastardising a second whistleblower” (Click here to read) Mr Negus decides he wants it blocked in Canberra where he lives. So he sends section 313 notices to the service providers in Canberra such as Grapevine.com.au who are one of the biggest ISP’s in Canberra if not the biggest. So when people do internet searches and come up with my post they cannot access it and therefor bad media coverage of Mr Negus is reduced. Who would know? Only two or three people.
I have used my post as an example but there is plenty of other instances of bad press for Mr Negus and the AFP. I am not saying that Mr Negus has or would do it, but it is almost guaranteed it would cross his mind when he gets bad press. As it would for people at ASIC and other government departments such as the mystery “national security agency” Senator Ludlam asked about in the above transcript. And how many politicians might decide to put pressure on the federal police to block sites they do not like?
This could and should be an election issue and there needs to be an inquiry into exactly what the Federal Police and other agencies have been up to. Exactly which sites have they blocked and why would be a good place to start. If section 313 notices are not being abused now they will be in the future if left unchecked.
The internet is the great equalizer that gives everyone a voice. When freedom of the internet comes under attack it should be of great concern for all.
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