Paul Fletcher MP invited submissions on his plan to radically shift regulation of the Internet in Australia, or more accurately, regulate the Internet out of Australia. Further accurate again would be to say that he opened the door to discussion about coalition government preconceived ideas that were in the form of a discussion paper that canvassed that we ought do something about the undefined risk to children from the Internet. This entire circumstance was for show; well before the closure of submissions the pre-election discussion paper was being referred to as government policy and media appearances by Fletcher were setting direction and vision for what the policy outcomes would be.
The entire farce will, must, fail. I'm here to tell you why.
As outlined in the introduction section of the discussion paper, the Internet has indeed become a daily and integrated part of life for many Australian families and mine is no exception. In the last three decades as I have grown up and my family has formed, the Internet has become such an integral part of our life that we have scarcely (if at all) noted its existence. The Internet has indeed become no longer a thing in its own right, but a mere mechanism by which the entirety of our day-to-day lives unfurls. In the same way that the Bruce Gygnell's ``Good evening, and welcome to television" sounds anachronistic nearly sixty years after he spoke it on TCN9, the concept of the Internet as a specific thing rather than just a way things are done is an oddly awkward one, and something my two year old son Patrick has no concept of. The introductory section subtitled "The dominance of Internet use and social media" correctly points out that over 95 percent of young Australians use the Internet regularly. This is within a rounding error of all of them, and certainly adults are not meaningfully different. Where the paper showed more caution I'd like to round up a little and assert in my introduction that "everyone uses the Internet, all the time, and barely anyone notices." Against that backdrop I'd like to respond to the rest of the paper, because with that context we can see that the ideas that the government has come up with on how we should change daily life in Australia are pretty important ones to get right. Bad Internet policy is outright terrible policy.
The paper asks of a proposed "Children's e-Safety Commissioner";
What Existing Programmes and Powers Should the Commissioner take Responsibility For?
Nor any new ones.
As part of the election campaign in September 2013, the Government asserts that it committed to appoint a senior Commonwealth official as a Children's e-Safety Commissioner. I'm not completely persuaded that it did. In April or March 2012 the coalition formed an Online Safety Working Group and in the space between there and the 2013 Australian Federal Election it undertook various consultations and roundtables (with whom is unclear) and further released a discussion paper which in many ways is similar to current policy, but that discussion paper sought input on the ideas mooted in it which seem then to have been commuted directly into a governmental agenda of regulatory response. Precisely where the political equivalent of thinking out loud and inviting people to offer their feelings turned into where we currently stand is murky, but for our present purposes we might as well accept for the moment that this is long-standing government policy even if that doesn't fit completely comfortably - almost like that one door in your house when it gets a bit damp. It is ultimately more interesting to look into why the idea of a governmental regulator or czar for the area of children's safety is an completely awful idea than it is to examine whether the idea is official or speculative anyway.
What problem are we trying to solve?
This applies a lot to the policy, but it's as useful to examine it here as it is anywhere. For the last twenty years that the Internet can be meaningfully said to be a normal way of conducting life, there have been those in the community who have expressed a range of emotive concerns about it ranging from hesitant consent to it being part of their lives through to full scale doomsday prophecy. This is so normal that it's boring; respected scientist Conrad Gessner warned how the modern world overwhelmed people with data and that this overabundance of communication between people posed great risks. Of course the modern world in this context is Switzerland in the early to mid 1500s but he wasn't an outlying point of data, he was one popular begining of modern terror about communication. You can trace the sentiment back to Socrates of course, who wrote in The Republic that children can't tell reality from fiction (presumably they then like now wandered around him doing just that while he wrote), but it was the printing press in Gessner's era that really got the idea going that people are under some great danger from technological advancement in communication, and consequently started off a four and half century history of people putting this point forward without clearly and convincingly articulating a single harm that comes from the communication. Not one. They just flailed about nearly wetting their pants in terror (perhaps their tights in Gessner's case, I'm unfamiliar with 16th century Swiss attire.)
The entire introduction of both the government's Children's e-Safety policy and the working group output that preceded it, and to be fair the former ALP government's furtive efforts in the same area, treads carefully and precisely in the footprints of Socrates, Gessner, and every other Henny Penny since then through the eras of writing, the press, radio, recorded music, television, computers and the Internet. It all convinces us with well-researched assertion that Australians in general and children in particular communicate more than ever before, and completely fails to articulate how this is a problem. Indeed, were it a problem that nearly 95% (or all as we've decided to say) of Australian children use the Internet, we could expect to see a national bloodbath that would be the subject of great shame. Instead, we see schoolchildren almost absent mindedly playing Candy Crush Saga on their phones at the bus stop, occasionally flicking to the app that tells them if the bus is late and by how much.
What specifically do we mean by harm to children from the Internet? That children will find information that is difficult to contextualise at their age? This doesn't seem worthy of a national scale policy response. That children will suffer some sort of mental anguish specific to the way in which other children treat them online? That seems more like something handled at a school or community level with appropriate public health style responses more than it does a reason to put a burecrat in charge of Facebook. Perhaps we indulge in the idea that children are stalked and predated on the Internet? The research tells us that this is vanishingly rare outside of tabloid media and children are at far greater risk of being abused by a parent, step-parent or friend of the family than strangers who use the Internet to browse for victims of horrifying crimes. Perhaps the public would be a little awkward about a Commissioner of Safety Around Leery Step dads though.
It's worth a note that the discussion paper points out that in September 2013 a Tasmanian 15 year old girl took her life after being bullied, a 13 year old took her life in Sydney in similar circumstances in 2013 and and in 2012 and 2009 Melbourne girls of 14 years apiece took their lives apparently in response to bullying. These suicides are preventable tragedies for which we should be ashamed. The Australian Bureau of Statistics records that in the five years to 2012 1,727 men and 546 women died by suicide - 10 per 100,000, six people per day. 80 boys and 35 girls made irreversable decisions in 2011 and considering all causes of death, suicide accounts for a tad over a quarter of deaths in 15 - 19 year old males. If we can support the mental health, safety and wellbeing of our young Australians and give them options when faced with challenges, they are a chance at going on to live long and full lives. We need to do better, but to assert that there is a meaningful angle to the tragedy of youth suicide where we can do something by better further regulating the Internet seems at best to be unsupported speculation and probably just using the awfulness of suicide to create fake impetus for your policy.
While the Internet may have improved the ability for people in Australia's history to make each other's lives a misery by increasing their communication capabilities with each other, Australian law rightly seeks to regulate the behaviour of Australians, not the conduits by which they behave. This is particularly so when those conduits are capable of being used for pleasant as well as nefarious behaviour. Existing legislation regulates carriage services as well as stalking and harrasing behaviour, what does the government seek to achieve by further regulating already illegal behaviour? In the face of the legislative prohibition on murder, does Australia need a law against murder committed on Thursdays? With the existence of legislation prohibiting stalking someone and applying such emotional stress that they end their life, what does the coalition consider the extra value is in more specific regulation against doing so via Twitter? These questions need answering before we can move onto the next reason a Commissioner for e-Safety cannot work.
Australia cannot regulate not-Australia
In 2012 then "DBCDE" (now department of Communications) which currently seeks to appoint an Australian commissioner in charge of Internet companies variously incorporated in Ireland and the United States, received a copy of the final report into the review of the Interactive Gambling Act 2001. This is simultaneously one of the most amusing and embarassing pieces of legislation about the Internet in Australia and given the volume and calibre of competitors in that area this is quite an achievement. The Act prohibits (inter alia) the offering of an interactive gambling service to Australians, an activity largely indulged in by entities incorporated in other countries and not subject to Australian laws. 2200 of them in fact, according to the report. That report further pointed out that the number of Australians accessing these services is significant and growing, and about a billion dollars in revenue disappears overseas with gay abandon each year. The review rather sheepishly realised that a primary reason for this is that Australian law doesn't apply overseas to foreign entities unless we have some sort of external agreement in which both parties agree to enforce each other's standards. We have no such agreement with the countries in which these entities are incorporated and as such our laws don't apply to them. Overwhelmingly the largest obstruction to the effectiveness of a Commissioner in charge of children's safety on Facebook (setting aside my previous point that there appears to be no well articulated problem that one would solve), is that Facebook is not Australian and not subject to Australian laws in its operations in foreign countries. Google is in the same boat, as is Twitter, Myspace, Webo, Instagram, Snapchat, RenRen, Skype, Stickcam, or any other corporate entity which offers a service to Australian children upon which they may make each other miserable. If we act now, and choose to not act, the government can be saved the awkward embarrassment in a decade when it is revealed that the children's safety cyberczar has not made a single arrest, issued a single fine or set a single child out of harm's way. If the government continues with this instead, we'll read about it sometime in 2024, bewildered.
With the points offered that there is no cogently articulated problem that a children's e-safety commissioner could busy themselves solving, and that for such a commissioner the majority if not entirety of their responsibilities would be out of their grasp, it's hard to have cogent responses to the discussion paper's questions about what machinations of government would best bear out such a commissioner.