Analysis: The legal means to cut net access

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Analysis: The legal means to cut net access

Under what conditions could the Australian Government cut net access?

With internet services cut in Egypt as a desperate Government response to political unrest, the question has inevitably asked - "Could it happen here?" David Havyatt believes it can, but only if Australian democratic values were turned on their head.

As Egypt followed Tunisia with mass protests in response to corruption, the country's communications have progressively been disabled under Government orders.

These events combined with the recent debate at home over internet filtering has naturally led to discussions as to whether the same controls are available to the Australian Government. Most of these discussions have focused on whether freedom of speech could be used as a legal defence by service providers against a shut-down order.

There are three things a Government needs to be able to interfere with communications; the first is the legal authority, the second is the technical capability, but the third and most crucial is the political power.

Critics of the proposed Internet filter have been concerned that it creates the technical capability in every ISP network to block access to designated sites.

But the enabling legislation we have seen so far has specified the criteria for sites to be added to the list. The Government wouldn't have the authority to order that a new site simply be added. To use the filter in this way would be outside the Government's authority.

To make it happen requires political power to have either individuals or corporations directed to comply, or the ability to direct forces to coerce compliance. If the filter debate is any guide, Australian ISPs would be unlikely to respond to an instruction to start blocking access to major sites without the threat of coercive force.

The filter is not, however, the only basis by which Government (or the authorities) could seek to restrict access to communications services. There are significant provisions in the Telecommunications Act 1997.

Section 313 of the Act is a wide ranging requirement for carriers and service providers to provide "help" to enforce law and safeguard national security. The section implies that help is limited to other existing powers like interception and access to stored communications and couldn't be used to disconnect services. So no joy for any aspiring dictators there.

Under section 315 of the Act, the police may ask a carriage service provider to suspend supply of a carriage service if an individual with access to the service has or is likely to take a life.

After several days of discussions with various Government agencies, it seems nobody fully understands what possible scenario could enable a Government to use this law to ask its agencies to force the industry to cut internet access.

My questions have been passed from the Attorney-General's Department to the Department of Broadband (DBCDE), in turn passed to the communications regulator (ACMA) then back to Attorney General again. Hot potato!

The Attorney General's Department instead highlighted the wider powers of section 581 of the same Act, but were again unable to respond as to what scenarios would see these provisions used.

Under section 581 the Attorney-General could direct a carrier or service provider to cease supply or use of a service that is "prejudicial to security". This direction is about the suspension of an entire service, not service to an individual.

To understand this section, it's best to head to the glossary.

Security is as defined under the Australian Security Intelligence Organisation Act 1979, as "the protection of, and of the people of, the Commonwealth and the several States and Territories from: espionage; sabotage; politically motivated violence; promotion of communal violence; attacks on Australia's defence system; or acts of foreign interference; whether directed from, or committed within, Australia or not."

A lot hinges on whether mass rallies - as we have seen in Egypt - constitute communal violence. As the provision is explicitly crafted as a security provision it is unlikely that it would be found unconstitutional under the "implied freedom of speech" which the High Court has previously found.

So from an authority perspective, there are in fact grounds for an Australian Government to cut internet access - in extreme circumstances.

But here is a big disclaimer. The kinds of events we are seeing in Egypt, and Tunisia before it, are not the kind of events that occur in democratic societies governed by a rule of law. They are usually occurring in States where the rulers have near dictatorial powers.

These States are usually supported by "national security forces" that do the bidding of the dictator. In Egypt it has been noted that the bulk of the military are joining the protestors, just as the Russian military did in 1917.

Let's just assume for a moment the unlikely scenario of an Australian Government that had turned rogue, assuming dictatorial powers (perhaps dressed up as a response to some threat).

As has previously been discussed, cutting Australia off from the Internet would be a relatively simple matter, as there are only a small number of cable connections to the country. There are only four cables on the East Coast and one cable on the West to interfere with. The initial plans of NBN Co proposed to have all domestic communications flowing through fourteen points of interconnection.

But even if technically feasible, our security forces would be unlikely to support any action to cut internet access. Whether the country can be cut off from the Internet doesn't rest on questions of technical feasibility nor on the existence of appropriate laws or the constitutionality of those laws. It ultimately rests on the political power of the Government.

So the best defence against the risk of something like this happening is the values we teach to our citizens and our security forces. Would they value the internet enough to resist such an exercise of political power?

The Internet is a democratising and empowering force - it has featured in many recent popular uprisings, for organising events and communicating with the outside world. It has provided to authorities both challenges (its routing structure can survive the failure of any node) and opportunities to exert control (communications are easy to intercept and map).

But ultimately we should remember that what the internet has achieved today owes a debt to the values of the societies that fostered its development.

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