Australian Internet policy remains years behind reality

Metadata extensions, copyright and Turnbull abandoning transformation show we're way off the pace

That Australian policy-makers cannot muster a coherent and consistent approach to the changes wrought by the internet has again been made apparent in recent weeks, by a number of events.

The national response to the internet remains, most often, to attempt to control it long after accepted practice makes the attempt to do so futile.

Thankfully, those efforts remain rigorous and follow the rule of law. Hence we've seen Australia's attorney-general George Brandis revealed a consultation on extending use of metadata retained by telcos and ISPs in civil cases.

The mere idea of allowing retained metadata to be used in that way runs contrary to Brandis' strident assurances that metadata retention was an essential investigatory tool for Australia's efforts to counter crime and terrorism.

The consultation paper (PDF) also explains that committees considering the retention laws pointed out problems with civil cases back in 2014 and 2015.

Matters like cross-border child custody disputes, the consultation paper explains, fall well outside the scope of the metadata laws. Yet when children are removed from their lawful carers, metadata can be a very useful tool. Other civil matters have been able to access telecoms records, but are now prohibited from doing so.

The idea that the attorney-general be granted regulation-making powers that would allow access to metadata under certain circumstances has therefore been on the books for years. The circumstances that should see civil cases allowed to access retained metadata are what Brandis wants comment on … by January 13th, 2017.

You read that right: a likely extension in the use of retained metadata that's been contemplated since 2014 has now been given a silly season window for comment. Your correspondent expects that valuable contributions to the debate will therefore be washed away on a tide of surf, champagne and seafood.

Brandis has form with this kind of sneakiness: he commenced consultation on metadata retention on Christmas Eve 2014, offering just nine working days for submissions.

In that case, and in this, it looks like short timeframes are used to control debate about how the internet can be used.

At least this consultation shows that the gears of government grind on inexorably. We got another glimpse of that last week when the Federal Court ruled in favour of ISPs being compelled to block accessed to a handful of piracy websites.

That decision was welcome, if only because the nine-month crawl from commencement to decision should dispel fears that Big Content would storm the courts with frivolous requests or ambit claims. The judgement also shows that the courts took the matter very seriously, expending a lot of time and effort to determine whether sites like The Pirate Bay exist only to infringe copyright. Millions of Australians can tell you the answer to that question in a heartbeat. The judgement's analysis of the facts is therefore heartening.

But of course also futile, because it's trivial to circumvent the block: reports suggest Telstra customers need merely use Google's DNS servers to escape the carrier's block of the banned sites.

Politicians and lobby groups like Internet Australia (IA) have contributed to this debate by calling on content providers to make more stuff more easily available. But neither has suggested policy a mechanism for doing so. IA campaigns for content to be made more widely available and opposes geoblocking, but curiously tells The Register "that suggesting how content could be more easily be made available was not within Internet Australia's charter."

This week the Productivity Commission published one this week, in the form of its Inquiry Report on Intellectual Property Considerations. That report recommends reform of Copyright laws to bring them into line with modern practice, largely by adopting fair use provisions common elsewhere. It also offers the following recommendation on access to content:

The Australian Government should make clear that it is not an infringement of Australia’s copyright system for consumers to circumvent geoblocking technology and should avoid international obligations that would preclude such practices.

Which is lovely, save for the fact that it is an attempt to control markets. I've argued, in my own time, that Territorial copyright is encouraging piracy. But whatever you think of distributors' contribution to the economy, especially when seemingly arbitrary decisions deny consumers access to products for which there is clear demand, a command decision to make their businesses non-viable would be extraordinary.

Lastly, we should consider the decision that led to the resignation of Digital Transformation Office leader Paul Shetler. Vulture South has long-suspected that the Office could become an expensive luvvie-fest. But perhaps a luvvie-fest Australia needed to have, as incidents like #censusfail and the ATO Australian Taxation Office outage show that Australian government agencies are yet to become reliably resilient deliverers of digital services.

The DTO was folded into the new Digital Transformation Agency, with a lesser remit to keep the move to digital service delivery moving along rather than shaking things up, plus some of the old AGIMO's job of keeping an eye on government technology procurement.

That's quite a pivot from prime minister Malcolm Turnbull's original vision for the DTO, to borrow the language of startup-land. And like many other pivots, it looks expedient in the worst possible ways and will likely not hasten his ambition for simpler, cheaper government services.

Australia will therefore remain years behind what's being done elsewhere. As we've nearly always done with internet-related issues. But at least we can say we have a government that continues to move slowly. So slowly that it grinds past problems of its own making and eventually finds a way to revisit them. While at the same time proposing even more certain-to-be-problematic laws like giving the government signoff on telco network configurations, but not finding time to legislate mandatory breach notification laws despite years of offshore examples of their utility.

Happy New Year! ®

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