From March 1, 2005, the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 came into force. This latest attempt by the Federal Government to regulate the Internet makes it an offence if an Internet Service Provider (ISP) or an Internet Content Host (ICH) does not refer to the Australian Federal Police, within a reasonable time, that they have become aware their service can be used to access particular material; and they have reasonable grounds to believe that the material is either child pornography or child abuse material. Severe fines and or imprisonment can result if an ISP or ICH fails to meet this new law.
This law is akin to someone being fined for not reporting to police that a car can be used for speeding. Many ISPs are unaware of exactly how they will be required to report and act on material covered by the new legislation. As Primus general manger Campbell Sallabank stated, "We are in the process of contacting the Federal Police to get some clarification about what is required. This has come on ISPs fairly suddenly." Indeed, this legislation was rushed through, with little time for consultation. As one of the five submissions received, and the only non-government submission, Electronic Frontiers Australia stated that they were given little over a week to prepare their submission.
It is unclear why organisations such as the Australian Computer Society, the Australian Information Industry Association or the Internet Industry Association, who are the experts in this area, were not consulted. This piece of legislation is doomed to fail. Like all the other pieces of Internet legislation this Federal Government has thus far enacted it is unlikely to prevent child pornography from being distributed on the Internet.
Think of the anti porn law - we can still access porn; the anti spam law - we still get spam. This new law is unworkable. Unless the Federal Government and the Federal Police get their act together and provide more consultation, ISPs will find it difficult to comply.
If the Federal Government is serious about tackling child pornography, they must first understand the nature of the Internet. To do this, they must first start talking to the experts. They must also understand that child pornography is not just confined to the Internet.
I have seen a number of television shows that show naked children, Australia’s Funniest Home Videos is one such television show. I have even watched a movie on SBS where an elderly woman is passionately kissing a girl who looks to be about 14 years of age. She is then heard to discuss with another elderly male how she likes to have sex with young girls. Apparently this is not child pornography in the eyes of the Federal Government, but art. However, if you were to download either of these two shows from the Internet, then you would be facing ten years in jail. There are confusing signals being sent out to the public when the mainstream media is allowed to continue to sexualise children.
A number of ISPs currently report to various policing agencies on illegal content. Rather than imposing unworkable laws upon them, the Federal Government should be working with the industry to help eliminate this unsavoury practice. As stated earlier, the Federal Government must first learn to understand the nature of the beast. The Internet knows no borders nor respects them. Passing local laws is a waste of time if the offending web site is housed on a server located in a different country. This begs the question, if an ISP reports to the Federal Police that they have reason to believe that their service can be used to access child pornography, what then? Do they shut down the ISP to prevent the few people who use their service to access child pornography? Why don’t we also ban the use of cars! That would certainly stop people from speeding.
What if the ISP reports an actual web site address that displays child pornography (which they currently do), what then? These sites are almost invariably hosted in another country under a different set of laws. The Federal Police can make a complaint through the normal channels to that country, by which time that web site has often moved onto another virtual server to evade capture. And this ignores the Virtual Private Networks that are hard to penetrate.
Age of consent laws in some countries allow sex between people as low as 12 years of age. Even here in Australia, the age of consent differs in different states. So what does the Australian Federal Police do when an ISP informs them that their service can be used to view a picture of a naked girl or boy displayed on a web site hosted in Chile? Potentially not much as the age of consent there is 14.
The Federal Government needs to start looking for an international solution rather than local solutions, which have all failed. Local laws are next to useless when no one country controls the Internet. But how do you get an international solution?
There are two possibilities, both of which must involve the United Nations (UN). First, they can lobby the UN to have uniform age of consent laws across all countries, helping to form a legal consensus on what constitutes child pornography. (We must also get our own house in order.)
Secondly the Federal Government should also lobby for the Internet Corporation for Assigned Names and Numbers (ICANN) organisation to be moved under the UN umbrella. ICANN is a private not-for-profit organisation that controls and maintains the Internet Protocol (IP) addresses via the virtual address book contained on the myriad of Domain Name Servers (DNS). When we send a request to view a web site via our browser, the DNS is looked up to determine how to reach the server hosting the web site.
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