All jurisdictions

The Senate Legal and Constitutional Committee report on the Telecommunications (Interception and Access) Amendment Bill 2007 was tabled in parliament on 7 August. Get the report here. The legislation was intoduced into the Senate on 16 August 2007. Given the changes that this Bill introduces to the current arrangements for interception capability, and access to ‘telecommunications data’, the recommendations of the Senate Committee will have a relatively low impact on the shape of the final Bill. There was an interesting response put by the A-G’s Department in the committee inquiry in respect the nature of ‘telecommunications data’ (see page 10 fo the A-G response). If RFC 2822 is of interest to you, read on…


The commercial FTA networks, through Free TV, are pushing for a change to the Commercial Television Code of Practice in advance of the imminent Federal election. The changes, which are the subject of public consultation, would allow the commercial FTAs to sell an additional minute of political advertising…


The Australian Attorney-General Philip Ruddock has appointed Australian Federal Court judge Susan Kiefel to serve on the commonwealth’s highest court. Justice Kiefel, who will take up her new position on 3 September, replaces Justice Ian Callinan, who is required to retire once he turns 70 on 1 September. See here for some news coverage.

Justice Kiefel, who is based in Brisbane, has sat on the Federal Court of Australia since 1994. Before that, Justice Kieflel was a judge of the Supreme Court of Queensland.

She is the forty-sixth judge, and will be the third woman appointed to the High Court. The first female judge on the court was Justice Mary Gaudron, who sat from 1987 to 2003. The second female judge on the court, Justice Susan Crennan, was appointed in 2005.

Justice Kiefel is currently a part-time member of the Australian Law Reform Commission, as well as President of the Federal Police Disciplinary Tribunal.

I’ve said it again, and again – what is it about internet censorship that leads to the complete departure of reason (and yes, yes, yes, I know, it’s an election year). Sigh grumble grumble.

I nearly choked over my wheaties this morning when I saw this story on the front page of the newspaper, according to which:

INTERNET service providers will be forced to filter web content at the request of parents, under a $189 million Federal Government crackdown on online bad language, pornography and child sex predators.

Let me see, which countries use ISP or country level filtering? China … Saudi Arabia … Thailand … Kazakhstan … Georgia … Iran … Sudan … Malaysia … Tunisia … Uzbekistan… Belarus. Yes, there’s a set of countries I aspire to join.

Now, admittedly, the proposal seems to have ISP level filtering ‘on request’, rather than entirely imposed from above. Unlike the Chinese, Australians will have choice about whether to have their internet service filtered (at least to some extent – there’s plenty of laws in place to require Australian-hosted material to be taken down). The idea seems to be that parents have trouble installing PC-based filters (or at least installing them so their tech-savvy kids can’t get around them) – so ISPs should be forced to do that work for them.

But then that raises interesting issues of cost, doesn’t it? Let us see, what did DCITA itself conclude (note: big pdf) just a couple of years ago?

• Filtering technologies have not developed to the point where they can feasibly filter R-rated content hosted overseas that is not subject to a restricted access system.
• Complex analysis filtering technologies are not practical in a national proxy filtering system. However, due to developments in search algorithms and server power, Uniform Resource Locator (URL) or Internet Protocol (IP) addressed-based filtering does appear technically feasible at the ISP or server level.
• There are a number of practical difficulties in mandating URL/IP based filtering at the ISP level, including accuracy rates and, according to the Internet industry, impact on broadband. Ovum has estimated that URL/IP based filtering would involve implementation costs of approximately $45 million and ongoing costs of more than $33 million per annum. Such costs could significantly impact on the financial viability of smaller ISPs, in particular. Given the limited benefits of an ISP-level filtering system, the costs of a mandated requirement to filter do not appear justified.

So. Show me the report that says something has changed. Oh, no, that’s right, this is another one of those back of the envelope ‘it’s important and it’s an election year’ things. Sigh, grumble, grumble.

And it does seem like a lot of money in order to make it a bit harder for a few kids to access inappropriate material, and to save those kids’ parents the trouble of installing filters on their home computers. cost effective? methinks not. Oh, yes, right – that’s not the issue, it’s an election year.

The much anticipated judgment in the C7 matter has been handed down today…it’s a wopping 1230 pages/7MB. Get it here. In a very small nutshell, Channel 7 did not prove its pleaded case and was thus unsuccessful. The issue of costs is still to be worked out. His Honour Justice Sackville estimates costs in excess of $200million. The obiter on ‘mega-litigation’ will be especially useful to the readers of this blog who teach litigation and legal professional ethics.

The ‘war on terror’ has created the conditions for a new era of content regulation in the form of censorship of film and literature, broadcasting content standards and restrictions on the media in respect of national security matters. This week David Marr commented on the Attorney-General’s recent daubing (sorry I am sticking with the “unifinished canvas” metaphor) – the Material that Advocates Terrorism Discussion Paper released in May 2007 and the upcoming meeting with the States in Hobart at the end of this week. The Discussion Paper attracted many submissions from a diverse group of interested parties. See the submissions. The comments of Maureen Shelley from the Office of Film and Literature Classification Board echo the sentiments in many of the submissions made to the Attorney-General on the terrorism materials paper – that the new regulatory framework is “a significant departure from current practice”. The thrust of many of the submissions and the gist of Marr’s piece is that the changes sought by the A-G will have far reaching, potentially absurd, possibly discriminatory, unintended negative effects on the creation of and access to a broad range of films and literature which “might” fall within the new classification category. Led Zepplin comes to mind “oohh…it makes me wonder”…

There have been a couple of interesting developments in social networking land lately. One demonstrates the value that these networks represent. The other highlights some complicated issues about risks associated with using social networking tools, as well as possible privacy and more general regulatory concerns. (more…)

And here’s a new danger from posting information on Facebook–your university might use the information to fine you for breaking the rules.

Oxford University has reportedly used photographs of students on the popular social networking website Facebook who they say have broken the University’s rules regarding conduct after examinations to charge fines. The conduct? Being sprayed by shaving cream, covered by flour and silly string, and similar offences. (more…)

The New York Times carried a story about a lawsuit filed by restaurant owner Rebecca Charles, proprietor of the Pearl Oyster Bar in New York’s West Village. The article mentions that she has sued Ed McFarland, owner of Ed’s Oyster Bar, she considers to be a “knockoff” of her own. McFarland was her former sous chef for six years. [And yes, apologies for the pun in the title.] (more…)

[Update: I found this op-ed by Julian Burnside pretty compelling.]

The way that the imprisonment, interrogation, bail release then immigration detention of Dr Haneef is playing out is really making me feel physically ill, and deeply ashamed of my country. And while this is a tech law blog, and I’m not a terrorism or criminal law or immigration expert, I just feel like I need to put my 2c out there, if only for the sake of my own sanity.

Over the fold, I’ve commented on four aspects of these developments that have shocked me to the core: the fact that the legislation seems to allow for unlimited periods of detention without charge; the breadth of the terrorism provisions, the territorial reach of Australian law in this area, and finally, the complete disregard of the rule of law displayed by government ministers, in particular, Kevin Andrews. The whole thing makes me wish I were citizen of a country whose government actually thought civil liberties, democracy, and the rule of law were important.

Australia’s competition regulator, the ACCC, is taking Google to court, alleging that the search engine company has engaged in “misleading and deceptive conduct in relation to sponsored links that appeared on the Google website”, in contravention of section 52 of the Trade Practices Act 1974 (Cth).

Section 52(1) provides that a “corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

The ACCC has alleged that Google has engaged in misleading and deceptive conduct in breach of section 52 by:

–in 2005, providing sponsored links to online classified advertisement provider Trading Post‘s website, in the guise of hypertext links to two of Trading Post’s competitors (but associating the text with the Trading Post’s URL); and
–on a continuing basis, “failing to adequately distinguish sponsored links from “organic” search results”.

The ACCC has also alleged that Trading Post contravened sections 52 and 53(d) of the Act in 2005 when the names of their business competitors (car dealerships) appeared in the title of Google sponsored links to Trading Post’s website. (Section 53(d) prohibits a corporation from representing that it “has a sponsorship, approval or affiliation it does not have”.) (more…)

Can’t happen quick enough in my view.

While Google is currently the dominant player in the Internet search engine business, that doesn’t mean that there is not a great deal of activity among companies vying for a piece of the action. As was recently reported, even 1% of the global search market represents quite a bit of money.

Not all search engine companies use the same strategies to capture market share, however. (more…)

Google has a new public policy blog, and in an interesting post, Andrew McLaughlin (their Director of Public Policy and Government Affairs) notes a story now circulating – that Google has been having

fairly quiet discussions …with various parts of the U.S. government, including the Departments of State and Commerce, the Office of the U.S. Trade Representative, and various House and Senate committees.

in which Google has been making the case that ‘For Google, it is fair to say that censorship constitutes the single greatest trade barrier we currently face’, and that:

Just as the U.S. government has, in decades past, utilized its trade negotiation powers to advance the interests of other U.S. industries, we would like to see the federal government take to heart the interests of the information industries and treat the elimination of unwarranted censorship as a central objective of our bilateral and multilateral trade agendas in the years to come.

This has of course elicited some of the expected critiques – ‘how can Google say this when it actively collaborates with censorship in foreign countries’. Personally, I think that’s a pointless and ill-considered criticism – Google might well be censoring now – because, oh, it has to under the laws of the countries where it operates. That doesn’t prevent it actively trying to break down the censorship rules so it can stop complying with them.

I think there’s more serious criticisms that need to be borne in mind by Google when it makes this argument about injecting its concerns into bilateral trade negotiations. As someone who is based in Australia – a country that has had a bilateral trade negotiation with the US – I find the idea of the US injecting even more policy issues outside immediate trade issues into its FTAs a bit offensive. I know, from the Australian experience, what this means. And that is, that good as the intention might be, it is likely to become seriously perverted by the USTR and trade negotiation process. I hope (in the spirit of constructive criticism) that Google gives serious thought to whether this can work as it might hope, even in the most hospitable environment. (more…)

Hew Griffiths was sentenced to over 4 years in gaol on Friday for criminal copyright infringement (the US court has recognised time served already in Australia challenging extradition; this means he will spend about 15 months in prison in reality). Hew Griffiths was extradited to the US from Australia in February to face a US court – even though he had never previously set foot in the country.

Earlier commentary on the case can be found at Larvatus Prodeo, Catallaxy, Legal Soapbox (here and here), Inchoate, and IPWars – and even the IPKat, as well as the mainstream media (here and here). Malik and the House of Commons have commented on the endgame, as has Club Troppo. It’s interesting to read the commentary: a lot of people really are quite torn over this one. Griffiths did some pretty serious stuff in terms of copyright infringement – about as serious as you can imagine it getting. Nevertheless, is extradition appropriate/proportionate?

Today, I have a short comment in Crikey. More over the fold. (more…)

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