Australia bins safe harbour, presses ahead with Minister-as-NetAdmin plan

A land where the minister runs the internet and the media runs a minister

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Australia this week shelved planned safe harbour reforms to copyright and decided to proceed with laws that would make its attorney-general NetAdmin-in-chief.

The latter law, the Telecommunications and Other Legislation Amendment Bill aims to give Australia's government a new set of powers to ensure carriers and service providers take security seriously in an age when it is assumed communications infrastructure is a military and/or terror target. The nation's attorney-general already has powers to shut down telcos or ISPs. The new law proposes to give the attorney-general powers to tell telcos and ISPs “to do or not do a specified thing (for example, alter a procurement assessed as giving rise to security risks).”

There's also a requirement that service providers notify the government of any change to their operations likely to have a material adverse effect on the capacity … to protect telecommunications networks and facilities.” Carriers will also required to explain their security stance, have it reviewed and even change it after ministerial direction.

The attorney-general will not be able to exercise their powers on a whim: the Australian Security and Intelligence Organisation (ASIO) will need to recommend an intervention.

Australia's carriers and ISPs have, however, indicated in submissions to draft legislation that they feel the bill is too vague and could result in governments directing them on network configurations that don't make commercial sense.

Some also wonder how government oversight of software-defined networks is going to work, because such networks could change configurations a great many times an hour.

Yesterday, however, the Parliamentary Joint Committee on Intelligence and Security heard from senior attorney-general's department officers who said they foresee no substantial change to the current draft of the bill. That being the case, it looks like telcos' objections will not be taken into account when the bill hits the Senate later this year.

The opposite has happened to another technology-related Bill that landed in Australia's national legislature this week, namely the Copyright Amendment (Disability Access and Other Measures) Bill 2017, which landed in the house without safe harbour provisions.

Safe harbour for copyright currently applies to telcos and ISPs, meaning they cannot be held liable for customers' copyright breaches using their services. As the guiding questions (PDF) for the Bill's exposure draft (PDF) explain, the original intention was to “expand the current ‘safe harbour’ provisions in the Act to cover a broader range of entities, including educational institutions and other online services (such as online search engines, bulletin boards and cloud storage services).”

Such arrangements are in place in many European jurisdictions, and in the United States. Australian creative industries haven't exactly rushed to support local adoption of safe harbour, citing income-crimping piracy potential and ongoing debate about the effectiveness of extending safe harbour in the nations mentioned above.

News Limited organ The Australian has run several articles this week attacking safe harbour provisions. The company has long argued that Google, in particular, profits from copyright breaches by running advertisements in web pages and videos featuring stolen content. News Limited has also argued that aggregators like Google News unfairly allow Google to profit from its content.

News Limited has not, however, protected its content by adopting the dazzlingly-simple-to-use robots.txt protocol that would prevent web crawlers from reaching its many properties. The Reg has met people from News Limited tech teams and they would have no trouble creating the robots.txt file or comprehending the syntax required to stop scrapers, which is as follows:

User-agent: *
Disallow: /

And the media empire's objections seem to have had an impact, as the safe harbour provisions did not make it into the Bill introduced to Parliament this week.

Communications minister Mitch Fifield's announcement of the Bill's delivery said “Provisions relating to safe harbour were removed from the Bill before its introduction to enable the Government to further consider feedback received on this proposal whilst not delaying the passage of other important reforms.”

Which is a little unusual: the exposure draft of the Bill was published in December 2015 and comments closed in February 2016. The government's therefore had more than a year to ponder reaction to the bill, rather longer than time the government considered the telco security bill: the request for comment on that bill was issued on November 9th, 2016 and submissions were required by February 3rd.

There is one good piece of news in the copyright amendments, as they'll allow re-use of material to make them suitable for consumption by people with visual impairments. ®


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