The Internet Filter, Conroy and the Free Trade Agreement.

You know whilst I appreciate that the Internet filter was the trigger for the creation of this blog and has been a healthy source of fodder for me to post on I still wish it would just up and die already. It’s been said time and time again that the filter won’t achieve its goals and will only serve to make Australia more of an Internet backwater than it already is. When you’re planning to roll out a national broadband network at the same time it seems rather counter-intuitive to go ahead and strangle it with an infrastructure bottle-neck that makes said network almost null and void.

That being said I still stand by my position that the filter, at least in its current form, will not make its way into reality. The tech crowd is universally opposed to it and there’s increasing pressure from the giants of the Internet (Google, et al) to abandon such ideas. It seems now that even our good friends across the ocean are starting to have concerns that such a policy would be harmful not only to Australia and its citizens, but also to relations abroad:

Asked about the US view on the filter plan US State Department spokesman Noel Clay said: “The US and Australia are close partners on issues related to cyber matters generally, including national security and economic issues.

…In a speech in January US Secretary of State Hillary Clinton put internet freedom at the heart of American foreign policy as part of what she called “21st century statecraft”. The US, she said, would be seeking to resist efforts by governments around the world to curb the free flow of information on the internet and encouraged US media organisations to “take a proactive role in challenging foreign governments’ demands for censorship”.

Clay’s statement added: “The US Government’s position on internet freedom issues is well known, expressed most recently in Secretary Clinton’s January 21st address.  We are committed to advancing the free flow of information, which we view as vital to economic prosperity and preserving open societies globally.”

Conroy’s first response was to say that hey hadn’t heard anything and failed to make any comment on what his opinion was on the matter. I don’t blame him for doing that either as up until recently he was only fighting the people of Australia and a few corporations. Now he’s got to deal with the US putting pressure on him to not go ahead with his proposal and he can’t openly attack them like he has done with Google leaving him with very few rhetorical options. I’m sure his spin doctors are working overtime on this one and I don’t envy the job they have (I mean really how to do brush off an attack from the US government?).

More importantly there’s also the small issue of an agreement that Australia and the US signed in about 6 years ago, the Australia – United States Free Trade Agreement. Back when it was first introduced there was hefty opposition to the proposal, mostly from Australia’s side, as it had the potential to wreck havok on things like the Pharmaceutical Benefits Scheme (PBS) and forced Australia to make changes to its intellectual property laws. Despite all this the agreement passed and came into effect on the 1st of January 2005 and hasn’t really come up in political discussions since.

The FTA was much futher reaching than the issues that were brought up in during negotiations. Other areas it covered were financial services, environmental issues, investment and government procurement. More interestingly however there are 2 key areas that the FTA covers that are quite likely to be affected by the proposed Internet filter, and they are:

Telecommunications

This section details agreed upon terms by both countries to assure fair trade between the telecommunications industries in each country. The rules specifically exclude measures relating to broadcast or cable distribution of radio or television programming.

Among other provisions, the agreement lays out rules for settling disputes among the members of the telecommunications industries in one country with the members in the other. It entitles enterprises to:

  • seek timely review by a regulator or court to resolve disputes;
  • seek review of disputes regarding appropriate terms, conditions, and rates for interconnection; and
  • to obtain judicial review of a determination by a regulatory body.

Electronic commerce

The parties agreed to co-operate on mechanisms to facilitate electronic commerce, not to impose customs duties on digital products and for each to apply non-discriminatory treatment to the digital products of the other.

The first relates to how Australia and the US will provide communications infrastructure and services to each other in a fair and equitable way and provides a framework for settling disputes. The bolded point outlines an area where the FTA could be invoked if Australia decides to implement a filter. Whilst the debate is still open on just how much an Internet filter would harm Australia’s ability to do business on the Internet the greater tech community is of the mind that it will be detrimental, regardless of implementation. Whilst this doesn’t directly damage the FTA it could be used as an injunction to stop such a filter from becoming reality, at least for a short while.

Probably the more important part of the FTA that is directly affected by the implementation of the filter is the Electronic Commerce section which explicitly states that there be no discriminatory treatment to digital products. This can extend to information on subjects such as abortion, euthanasia or drug harm minimisation which under the current filter proposal would be outright banned, but are still perfectly legal within the US. There’s also the possibility, thanks to the lack of transparency of the filter and its blacklist, that an online retailer could end up blocked from people within Australia and be effectively barred from trading with us.

I’ll admit that the links to the FTA are a bit tenuous but there’s no doubt in my mind that businesses with an online presence in Australia will suffer under the proposed filter legislation. The FTA is just another bit of ammunition to argue against the filter and with the US now putting pressure on Conroy I’m sure that we’re not too far away from the FTA being mentioned at a higher level. Conroy really has his work cut out for him if he thinks he’ll be able to convince the US that the filter is a good idea.

Would the filter require the FTA to be amended? I doubt it, but then again I’m not particularly qualified to comment on that. If you know (or have a good opinion) let me know in the comments below.

Tip of the hat to David Cottrill for giving me the idea of mashing the FTA with the Internet filter.

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