Many national laws are increasingly irrelevant - how will governments adapt?

Facebook decides whether photos of nursing mothers are allowed to be displayed in its site (including in Australia and other nations where such photos are legal).

Google leaves China to avoid complying with its national censorship laws.

Gaming and gambling websites base themselves in jurisdictions where they are legal while attracting most of their customers from nations where such services are regulated or illegal.

Shoppers flock to buy online from countries where prices are cheap and the range is good, incidentally avoiding paying GST or sales taxes on goods and, to compete, retailers, such as Harvey Norman, open online stores based in foreign jurisdictions to avoid charging GST.

People at home use proxies to bypass copyright restrictions on viewing certain content on services like Hulu and establish overseas postal addresses with mail forwarding services to avoid copyright restrictions that only allow certain physical products to be sold in some jurisdictions.

Online pharmacies sell cheap drugs from Canada or Mexico to the US and pornography distributors sell their wares to consenting adults anywhere in the world, regardless of local laws.

Optus in Australia is legally allowed to distribute free coverage of sports events, provided they are received by customers' televisions, delayed 90 seconds and rebroadcast to customer mobile phones - meaning that mobile sports rights have almost become worthless overnight.

Electronic games, books and movies banned in Australia are available for purchase online.

People in countries with restrictive media laws use online proxies and software freely distributed by the US government to learn what is happening in their own country and the world.

Movements even work together globally to circumvent government ordered internet shut-downs or strong censorship in nations, such as Egypt and Burma to allow protesters to organise and citizens to remain informed and inform the world.


Around the world many laws created by governments are under pressure from the growth of the internet.

Laws were originally designed by societies as formal codes to guide, manage or restrict the behaviour of people, conduct of organisations and disposition of assets attached to a particular geographic location.

These 'laws of the land' worked well in a world where the majority of people lived, worked and played in a geographically limited area, where movement between areas was tightly controlled and where assets were easy to recognise and tax but hard to transport.

This remains true in many respects. Minerals, animals and offices are found in geographic locations and can be difficult, if not impossible, to relocate. We largely live and work in geographically defined areas, allowing geographically based laws to be implemented and enforced.

However with the arrival of the internet and mobile technologies certain assets, cultural values and behaviours began to drift beyond the control of any geographic nation.

Any content that can be digitalised or product that can be transacted online may fall outside of national borders, or cross many nations between creation and consumption.

Content that was previously scarce and controlled by national interests, such as news, education and research, can now be made freely available online for anyone anywhere in the world. Products that were previously shipped enmasse by a relatively small number of agents (import/exporters) are now transported by millions of individuals in much smaller quantities, making taxation and border control checkpoints difficult to enforce.

Movies, music, books and electronic games are easy and cheap to replicate, transport and share, despite the wish of copyright owners to lock them in vaults and dole them out to keep prices artificially high, as deBeers has managed diamonds.

Governments and courts are struggling to understand and re-interpret old laws in light of new technologies. Some laws and precedents date back hundreds of year, before the creation of the internet, television, radio, planes, cars or trains - all of the technologies that shape modern life.

Some of these laws and precedents remain influential in legal decisions, square blocks twisted and jammed into round holes to band-aid the legal system in the face of modern technology.

How should government and society reconcile discrepancies between new technologies, modern life and law-makers, law enforcers and laws that have demonstrably not kept up with the pace of change?

Should policy makers ignore reality in favour of legislation shaped to favour aspirational ideals? Should police forces consider all citizens guilty of crime unless they can prove their innocence?

This struggle keep broadening, from copyright, to retail, to gambling and human rights.

To attempt to retain control, governments have filled their streets with cameras to watch for criminal activity, legislated for ISPs retain an online history of website visits for their customers (just in case law enforcement agencies might need it, regardless of privacy risks), maintained secret blacklists of content that their citizens are not entitled to see, or even know what is on the list and secretly develop legislation to protect corporate copyright owners at the expense of citizens.

All of these steps have occurred in liberal western democracies. Autocratic regimes have gone even further to harass and arrest online commentators and shut down parts of the internet.

Many nations appear to have become obsessed with watching their own citizens to catch the slightest infringements at the behest of the fearful, the political and the corporate interests.

I have not yet seen discussions over the relevancy and enforceability of national and state laws in the face of new technology occurring broadly in Australian society or public service in a measured and thoughtful way. There are hall corridors and conferences but little research and mixed knowledge.

The question of how to reconcile the geography of the physical world with the expanding frontiers of limitless and jurisdictionally challenged cyberspace should be integral to many policy conversations. Even seemingly unaffected industries and people are touched, subtly, but profoundly, by modern technologies as their impact continues to ripple outwards.

Just as we require the human rights of citizens and the needs of Australia's region to be considered in legislation, we need to begin considering the workability of geographical laws in the face of modern technology.

In some cases our police and courts will need to work closely with other jurisdictions, even those with diametrically opposed views, in order to detect crimes and detain criminals

In other cases we need to debate how far legislation needs to restrict our own citizens in order to protect corporate non-citizens.

We need to review all of our laws in the face of modern technology to decide which remain workable, cost-effective and practical and determine which require improvement, international agreements or are just plain unenforceable.

And we need to do this regularly as technology keeps moving.

For any geographic state to retain pre-eminent in meeting the needs and wants of its citizens, constraining behaviours that society does not wish propagated and protecting the body, person and interests of individuals, governments need to move to the front-foot regarding modern technology, to stop treating it as the 'other' or a special case.

Governments need to recognise and internalise that our civilisation is technological by its nature. Our culture, values and behaviour are continually shaped by what is possible with technology and what technology has unlocked. 

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How easy is it really to source information from Australian governments?

On behalf of a friend I've been looking into the contact information for Freedom of Information (FOI) requests across Australia's Commonwealth and state/territory governments.

While I believe that Australia has good Freedom of Information laws (though I know some would disagree), the real tests of this are whether people are aware of their rights and how difficult it is to identify the right FOI contacts and the complexity of the processes to release information.

Working in government, I have contributed to FOI processes from the inside and studied the legislation and processes of some agencies, however I've personally never asked a government agency for information.

From my brief look into sourcing information, and from my friend's perspective, while legislation is in place and even recognising the internal cost and resourcing challenges of FOI, there's a lot still to be done to create a standard and usable framework for people to find out about FOI and contact agencies at both state and federal levels.

For example, only two states or territories (WA and VIC) have an obvious central FOI site for their governments. foi.wa.gov.au and foi.vic.gov.au.

Queensland has a similar site, at www.rti.qld.gov.au reflecting their 'Right To Information' legislation. While this is internally logical, it doesn't make sense in a broader usability context. At least if you do try to go to foi.qld.gov.au it does redirect you to the site.

The other states and territories hide their central FOI sites away behind strange and convoluted web addresses in agencies that make administrative sense within government, but may not be as obvious to the public.

For example, the site that appeared to be the central FOI information source for NSW has the web address of: http://www.ombo.nsw.gov.au/complaints/freedominfo.html (though I could be wrong - which also points to an issue) and Tasmania appears to uses http://www.ombudsman.tas.gov.au/right_to_information2/rti_process

None of these sites is actually the central repository of information released by these governments - which would also be immensely useful. Instead they are informational sites which push people to contact individual agencies for specific FOI requests.

If I were asked I would recommend that all state and territory governments - and the Australian Government - use a standard FOI website address, and cross-link them for people who end up at the wrong one. Regardless of legislation name or the organisation which centrally administers FOI legislation, these sites should be found at foi..gov.au (or for the Commonwealth at foi.gov.au).

These sites should also become the central release points for FOI information, using modern web technologies such as APIs, or even ATOM/RSS to aggregate FOIed information from all agencies. The information could be retained by agencies, but have the central FOI site as a searchable directory of FOI releases pointing to individual agencies - like data.gov.au's role for public sector information (open data).

From there I'd also advocate that agencies similarly apply a standard approach to FOI, using foi..gov.au and foi...gov.au for state and territory agencies.

This consistency would, at least, mean that people could be educated consistently on where to go to find out their rights and exercise them.

Moving on to individual agency contact information, I've looked into whether there is a single list at Commonwealth level for all FOI contacts across all agencies.

I did find that the Department of Prime Minister and Cabinet maintained a list of agencies with FOI Contact Officer phone numbers - an excellent start. However as it was last updated in September 2011 it had not yet captured the machinery of government changes in the last Ministerial reshuffle.

The list did not, however, provide website or email addresses - channels most people today prefer to find government information (as AGIMO's latest report on Interacting with Government ‑ Australians’ use and satisfaction with e-Government Services 2011 will tell you).

Fortunately, via Twitter, @Maxious let me know that OpenAustralia had compiled a spreadsheet of Australian Government FOI contacts based on the agencies and Ministers subject to FOI from the Office of the Information Commissioner FOI Annual Report for 2010-11 (released in July 2011) and updated for the machinery of government changes last December.

This spreadsheet contained 12% more agencies and Ministers than the list provided on the website of the Department of Prime Minister and Cabinet. However while it contained email and website addresses, the OpenAustralia spreadsheet didn't containcontact phone numbers.

So I spent about an hour matching the two lists and have released the combined information as a Google spreadsheet, FOI contacts for Australian government agencies.

This spreadsheet contains FOI contact details for 355 Australian Government agencies with varying levels of details (phone numbers for 86%, email addresses for 66% and FOI web pages for 60%).

It also contains information for state and territory central FOI agencies.

If anyone out there is interested in FOI I would appreciate if you added to the list, filling in any gaps :)

Looking at the list, there is enormous variability in the email addresses and web addresses used for FOI contacts. Surely the Australian Government could mandate for a standard foi@.gov.au for email and foi..gov.au for websites.

Also agencies could ensure they have appropriate search strategies in place to make this information easily findable in their sites - creating a google site map (which has many other agency benefits) and adding rules in their site's internal search engine to ensure that searches for 'FOI', 'Freedom of Information', 'Information', 'My Information', 'Right to Information' and similar terms (drawing from internal search reports) have the FOI page as their top or preferred result.

These steps would be far more useful in helping Australians locate and access FOI information than many more expensive and difficult activities.

Also, surely someone in government (perhaps the Office of the Information Commissioner) could maintain a public list of FOI contacts - set-up in such a way that agencies could maintain their own information and receive regular automated emails every six months or so to confirm their information remains correct.

This could even draw from the list I've compiled from the Department of Prime Minister and Cabinet and OpenAustralia lists to start it off.

State and territory governments could do likewise - and perhaps link their lists to the Australian Government's list, so that the public - who often have no idea whether they need to go to a state/territory or Commonwealth agency for certain information - have a better chance of figuring out who they should first contact.

Freedom of Information is important and necessary for any democratic society. However simply having the legislation in place is not enough.

Governments need to take steps, such as I've suggested above, to make it easy to discover who to contact and explaining the process of how to contact them and what information may be released.

Without these steps, 'Freedom of Information' or 'Right to Information' become meaningless catchcries.

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How should agencies moderate their online channels?

While government agencies often have limited options in the approaches they choose to use for moderating third-party social media channels, there's a number of ways they can choose to moderate channels under their control, including blogs, forums and wikis.

There's limited official guidance, and no real mandates or instructions for particular moderation approaches available across Australian government (no my knowledge). This is partially a good thing, as agencies need to consider what works for their goals and the sensitivity of their engagements, not merely follow a central line.

I have been asked a number of times by various people about the best approaches to moderation and how other agencies choose to moderate, however I only recently put together a quick review, based on a request in my job.

As this is public information - something that can be observed when visiting any particular blog or forum, and there is widespread interest as agencies look at what each other is doing and why to help inform their own decisions, I thought it worth publishing the list and allowing other agencies to add to it, so government agencies can both share this important information and collectively learn from it.

The spreadsheet, Australian agency moderation of online social channels, is available for viewing and editing here.


I also thought it worthwhile to provide some basics on moderation, what is it, how it can work and why it's done.

In my mind moderation differs from censorship or approval, it is a conversation management technique based on used to influence conversations to keep them on track and at a 'Goldilocks' temperature - not too hot (for example people yelling at the top of their voices) nor too cold (for example people speaking in icy tones).

Other purposes for moderation include risk management, particularly around legal considerations of defamation, copyright and the publication of inappropriate/offensive material and guiding the culture of an online space. Just as organisations develop cultures, so do online spaces. These may be positive, supportive, respectful and engaging or abusive and demeaning, depending on the management approach.

Where an owner or manager of an online space fails to have mechanisms like moderation and community guidelines in place upfront to help shape and underpin the culture they wish to support, there is significant risk of the culture developing in unintended directions and being difficult to manage once a given audience moves in.

Censorship and approval, on the other hand, are control techniques used to enforce the owner's views and beliefs over those of the community. Both provide broader control over conversations, not simply influencing them but actively constraining them to what the online space's owner feels is appropriate.

In these regimes often the reasons behind why comments are not published are highly subjective or based on the internal beliefs of the online space's owner rather than on objective guidelines for conversation. Censorship in particular is about prohibition of content, which can limit conversations to politically correct lines of thought - not good for a robust discussion or the debate of 'left field' ideas - whereas approval of content risks enshrining a user's views as being somehow being endorsed or supported officially by the space's owner, which may not be the case.

As the owner or manager of an online space, when moderating you have to allow views that disagree with you be published, provided they are not abusive or defamatory. However when censoring or approving you may choose to only selectively publish views which disagree with you or not publish them at all.

Obviously moderation can be more uncomfortable, particularly in political environments, as you can be more readily challenged. However the outcome is far more inclusive, encourages a broader level of participation and provides opportunities to influence and be influenced.

When it comes to how organisations moderate, there are several different approach to choose from.


Pre-moderation
The first place people commonly go is pre-moderation. This means that, as the manager or owner of an online space, you read and review every comment as it comes in against your moderation guidelines before you allow it to be published. As this process suggests, it becomes resource intensive in active communities and doesn't scale well, hence it is not used by the owners of services such as YouTube, Facebook, TripAdvisor or other large community or social sites.

Pre-moderation offers the illusion of greater control and lower risk, as you check everything, however there are often legal factors at play which mean that a court could hold the online space's owner to a higher standard and consider therefore that, by pre-moderating, they are more responsible for the comments from users than if they explicitly did not pre-moderate.

Therefore unless you have highly trained moderators (with an in-depth understanding of defamation, copyright, discrimination and other applicable laws) pre-moderation can risk greater legal liability for an organisation. However don't take my word as a non-lawyer on this (I am not offering legal advice), please consult your lawyers regarding your agency's circumstances.

Pre-moderation has another major negative - it kills conversations. While it may be a suitable technique for a blog, where comments are usually in reaction to the original post, in forums, wikis, social networks and other conversational online spaces, pre-moderation is usually the kiss of death for a community. It is simply not possible to have a timely or coherent conversation when a minder at your shoulder is screening each of your words before they are heard.

I like to compare this to the process for holding town hall meetings. Sure you may vet who is allowed in the door and manage the flow of conversation in the room by laying down ground rules and limiting time per statement or question, even closing down or ejecting abusive or defamatory speakers. However you cannot effectively have a spontaneous open discussion if each speaker is required to pre submit all of their questions or comments for moderation - why hold the town hall at all?

Post-moderation
The other main approach to moderation is post-moderation. This involves establishing a clear and publicly available set of moderation guidelines (which should be public even when pre-moderating) and reviewing comments after they are published and publicly visible within your online space.

While this may sounds risky, it hasn't proven to be in practice where a community is well-managed and it is made clear that at times comments will appear which may be inappropriate, but they will be removed once detected or reported. If necessary risks can be further reduced by pre-registering users and holding their first comment for pre-moderation (which is also a spam control approach - more on that later).

Post-moderation is used by the vast majority of large community sites, often with mechanisms for users to report content they feel is inappropriate so that the owner can take any appropriate steps.

The benefits of this approach include reduced resourcing and the ability to scale quickly to any size community, important for organisations who don't know ahead of time how large a community may become. Post-moderation also offers support for free flowing conversations, meaning that forums and wikis actually work and may deliver the outcomes you seek - provided you have built and promoted the community effectively and the topic is of interest to your audience.

Post-moderation can also reduce- but not totally avoid - potential legal risks that pre-moderated communities face. However it remains important to have a level of trained moderation capability on hand to respond to reports of inappropriate commenting quickly.

Best moderation approach
In my view in most cases post-moderation is the preferable approach, however organisations need to be ready to shift temporarily to pre-moderation where events dictate. Pre-moderating the first post of new users, where users register or otherwise have a persistent identity, is a useful additional technique where it is not likely to alienate users enmasse and having clear methods for participants to report poor behaviour is a must.

There are cases where it is better to pre-moderate, such as for highly emotive topics or where there is significant risk of politically motivated groups deciding to enmasse invade and take control of a space for their own goals.

Government agencies do have special circumstances that can require pre-moderation to be used at certain times, such as during caretaker period before an election, during a national emergency or when significant machinery of government changes are taking place. Public companies may also need to consider it during share freezes or prior to major public announcements.

If you establish your system effectively, switching from a post-moderation to a pre-moderation environment ( or vice versa) should take no more than a few minutes to achieve technically - provided any changes in community guidelines or moderation policy are prepared ahead of time. In fact if you are running a post-moderated space I would strongly suggest that it is worth pre-preparing the guidance for pre-moderation just in case you ever need it.

Spam management
Another area worth touching on is spam - the bane of all system administrators. It is estimated that up to 90% of all email transmitted over the Internet is spam, unsolicited commercial messages designed to make people buy, or sometimes carrying malicious code with the hope of infecting systems for use in bot armies (for sending more spam or hacking secure systems).

Spam is also a persistent issue for online communities, though increasingly a manageable one. I recommend using one of the global anti-spam filters such as Akismet or Mollom, which are rated at over 95% effective at preventing spam from being published (that's at least blocking 95 of every 100 spam messages).

Other techniques also assist in spam management such as using honey traps on registration or submission (forms that spam bots - automated systems - see but human users do not and using the first post pre-moderation approach. Tools such as CAPTCHA can also help (where you must read and type in letters or phrases from an image), however there are techniques to circumvent these in use and they tend to frustrate some users as often up to 20 percent of legitimate human users cannot successfully complete a CAPTCHA challenge - I sometimes struggle with reading them myself.

One thing I strongly advise against is using pre-moderation as an anti-spam technique. Generally the goal of preventing spam should not outweigh the goal of having an effective and flowing conversation. Stopping the community's discussion in order to protect against unsolicited commercial messages is a very big trade-off, similar to requiring all car drivers to submit to breath analysis EVERY TIME before they can drive on a public road. Sure this approach would reduce drink driving (though heavy offenders would find a way around it), but it would unduly punish the majority of drivers doing the right thing.

In conclusion...
With no clear guidance or mandated approach for moderation from any Australian government (that I am aware of when writing this), agencies all have a choice on how they wish to moderate online spaces they manage.

I think this is a good thing as moderation will always be horses for courses. However I strongly recommend that agencies seek legal advice and consider the choices and reasoning of other agencies before striking out in a particular direction.

I also strongly recommend that you share your approach and moderation guidance with other organisations so, collectively, agencies improve by building on each others' experience and expertise.

One way you can do this is by adding your moderation approach to this spreadsheet, Australian agency moderation of online social channels.
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One week left to comment on the Information Commissioner's issue paper on public sector information

The Office of the Australian Information Commissioner has extended the deadline for commenting on their Information Policy Issue Paper 2: Understanding the value of public sector information in Australia until 8 February 2012.

If you wish to comment on the paper, visit the Consultations page of the OAIC website.

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Should Ministerial staff reveal their affiliations when commenting on political matters online?

Much of Australia's population doesn't realise there is a difference between Australia's public servants, who are employed and work for the state in an apolitical fashion, and Ministerial and other political advisers and staff, who are employed and work directly for politicians and political partie.

However there is a crucial difference at the moment as to how these two groups are expected to behave online.

Public servants work under a public servant code of conduct and, both federally and in most states and territories, there's also specific guidance for social media conduct. This generally includes the requirement to identify oneself appropriately when speaking officially (on behalf of an agency) or in a professional or personal context.

However the situation isn't the same for political staffers, who may not always operate under formal social media conduct guidance. This can lead to situations such as this one, Party trolls shall not pass, or be named, recently published in the Canberra Times.

Given the events on Australia Day, and much of human history, it's clear that a combination of passion, youth and ideology can lead to errors of judgement - some more serious, some more minor.

Now what may you get when you combine passionate young political party supporters with social media?

Clearly there's a lot of potential for risk, which could also affect other online engagement activities in government (by politicians or by agencies).

So how should this risk be managed?

Should there be a bi-partisan code of conduct for political staffers engaging on social media, perhaps even an independent watchdog to monitor activity?

Should individual parties 'manage their own backyards' - albeit in potentially different ways and with different tolerance levels?

Or is the current approach OK?

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