IT Voice responded to the COIAO consultation

Here is the response of IT Voice to the COIAO consultation.

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Commerce and Economic Development Bureau
2/F, Murray Building
Garden Road
Hong Kong
info@coiao.gov.hk

31-January-2009

Dear Sir/Madam,

Responses to the consultation of the Control of Obscene and Indecent Articles

The six members of IT Voice, who currently are members of the Election Committee, would like to express our opinions to the consultation of the Control of Obscene and Indecent Articles.


1. Due to the controversies and public outcries surrounding many decisions by the Obscene Articles Tribunal (OAT) in recent years, a review of the Control of Obscene and Indecent Articles Ordinance (COIAO) is necessary. A full-rounded review on the classification system and its operations, including law enforcement, is needed, but the motivation of the review should not be based on an assumption that more control is needed, and in particular any attempt to specifically target the new media would be misguided. We are in view that the OAT should be abolished, and making the courts to be responsible for the classification.

2. In the reivew, we must take into priority the freedom of information as a core value of the highest priority in Hong Kong, and one that is most critical even for our economic development and sustainability. We are concerned that over-regulation would harm the image and reality of information freedom in Hong Kong. Any actions to exert further control would cause damage to Hong Kong's reputation in information freedom.

Definition of Obscenity and indecency

3. We found the many problems in the past lie in the application of the strict standard in interpretation of obscenity and indecency by law enforcement and the OAT. In the definition, we should allow flexibility in order to cope with an ever-changing society.

4. We do not subscribe to a scheme in which the classification of articles is by the Government for it interfere with the freedom of information.


Adjudication System

We believe that the adjudication system can be improved in several ways.

5. All adjudications, including the first hearing, should be reasoned. The reasoned adjudications help to bring more transparency and to develop more comprehensive criteria for references.

6. The poll of adjudicators should be largely increased to avoid the opinions concentrated to only small portion of most active people. However, this expansion should not be based on sector or interest group but the whole population.

7. The proposal of Chief Justice to use the jury system of court can be considered. However, sampled adjudicator from the poll of jurors should be given the right to accept or deny to act as an adjudicator.


Submission of Articles to Classification
8. Submission should not be treated as a privilege of some sector or group. Hence we do not agree to expand the categories to allow certain sectors to submit articles to the OAT for classification.

9. When considering if we allow anyone from the public to refer the article for classification, we need to consider if the tribunal or the court will be overloaded by flooding of cases, and how to avoid abuse of use of the system. We have to ensure the system is not paralyzed to perform its proper function.

10. The law should be amended to require law enforcement to seek OAT’s classification before laying charge.

11. Similar to the court granting ex-parte injunction or search warrant, the efficiency of the law enforcement in referring articles to OAT can be guaranteed by more resources in OAT.

12.We do not agree to the proposal in Section 3 (2) paragraph 2.2 - 2.4 to sub-divide Class II (Indecent) to two subclasses IIA and IIB for different age groups. This proposal will further complicate the classification.


New Media and Server-side filtering at ISP level

13. We believe that laws and legislation should be held to be neutral in technology and media, and only in extreme cases of proven necessity would specific laws be appropriate to govern specifically any particular media or technology, such as the Internet. Attempts to legislate specifically for the new media would be both ineffective and unfair and the inconsistencies arise will create confusion and chaos in enforcement.

14. There is a proposal in Section 4.A2(2) paragraph 2.4 of the consultation paper on server side filtering at the ISP level. The paper believes that “Upstream control carried out by the operators would be more effective than the use of domestic filtering software. Since the filtering software is installed in the server-end rather than in the computer on the client side, it is less likely to be circumvented by children and youngsters.” We think the term is wrongly placed. “Server side filtering” can be performed at the client site or at the ISP level. They yield totally different effects. The consultation paper’s context is about ISP level filtering. So we use “ISP level filter” here and give some comments.

15. Filtering is used in many areas like antivirus, anti-phishing, anti-spamming and content filtering in general. A filtering system works only if there is a clear definition. For malware and phishing filtering which involve criminal damage the definition is clear. For spam, it is less clear because some electronic message regarded spam by one party is not regarded spam by another party. For obscene and indecent articles, there may be equally widespread views. In the consultation of the COIAO we have observed that there is a wide spectrum of opinions on the drawing of the line. This demonstrates that the society we are living is more or less pluralistic and that is something we value.

16. We think the server side filtering has many defects and also violate the freedom of information access. We propose to adopt client side filtering and empowerment should be given to users including parents, schools and children to use the tool.

(a) At a first glance, ISP level filtering saves management effort and is easy to implement. However, it is not so when we look deeper.

(b) ISP level filtering is monolithic but one size cannot fit all
ISP level filtering provides only one single standard to decide on what is allowed to pass and what is to be blocked. Customers (parents and children) from different background, different ages have no control of the level of filtering. The filter may be too lax for some while too restrictive for others.

(c) ISP level filtering is not compatible with the role of ISP as a neutral conduit
The Telecommunication Ordinance mandates that network providers serve as a conduit of information. The interception, delay and modifying of transported content constitute an offence. Unless there is a criminal case, ISPs do not decide for their customers what they are allowed to access. The law enforcement is not by ISP but the Police. Furthermore, customers have no knowledge if the information is inaccessible at all or just been blocked by their ISPs. The philosophy is about freedom of information flow and access in an open and free society. We have to observe this principle.

(d) Filtering at ISP level has significant performance impact
We are talking about inline filtering in this case in which content is examined packet by packet. For a likely large blacklist, inline filtering kills performance. We note that the Australia Communication and Media Authority conducted a trial test on similar filter and announced their finding in 2008. The performance degradation was reported to be from 20% to 87% with an average of 40%. Performance impact results in economical inefficiency of ISP operation.

(e) Filter at ISP level impacts availability of network service
From the availability point of view, filtering at ISP level has introduced a single point of failure. Network providers have been diversifying their network paths to provide better resilience. Additional filtering implies centralization of all traffics into an inline filter before they go out to the destination. This creates traffic congestion and in case of filter related equipment failure, it causes an outage. So ISP level filtering impacts service level commitment.

(f) No filtering is perfect.
Over-blocked contents (false positives) and under-blocking (false negative) are inherent to any filtering system. Even for malicious software and phishing site where we have few arguments in definition, we have some false positives and false negatives. For spam the definition is less obvious, so we have a lot of over-blocking and under-blocking in anti-spam filters. For obscene and indecent articles where the definition is so differently interpreted, the performance should be worse than spam. It is also worth to note that when one configure a more sensitive filter to block false negatives, the number of false positives increases. So we are bound to receive some unwanted content no matter what filters we use if we do not want to be blocked from wanted information.

Furthermore, content filters nowadays are not mature in blocking other traffics like P2P, email and instant messaging contents. Children and youngsters can bypass any filter set up by using other technologies.

(g) Client side filter has fewer adverse effects
Client side filtering can be a filter at PC desktop at home, or at the gateway in schools. Client side filtering does not have the disadvantages of filtering at the ISP level. Users make their own decision on what to block or allow. The transparency of the filtering policy is high. Users can tune the filters according to their needs which can change according to time (as the children grow up) or place (in a school, company or at home). This kind of self-determination is important in a liberal society. The filtering system is more “educational” than a single ISP level filtering with no user participation. The performance impact of client filter is low and the failure of the filter system at one client end does not affect other ISP users. Some assumes filtering software on the client side is more likely to be circumvented by children but children can circumvent the filter whether it is at the ISP or client side if they are determined.

(h) A holistic view on protection of children in digital age
In the digital age, new digital generation have to deal with enormous amount of information flooding the Internet. Children may face threats such as cyber bullying, fraud, identity theft, privacy invasion, and obscene contents. They will get in touch with lots of information that filters fail to block -- for example, filters do not have the intelligence to block cyber bullying and fraud temptation. We have to rethink our strategies to deal with the risks other than solely relying on filtering. We need to mitigate the risks by assuming our children would get access to malicious or unwanted information. Awareness education is a key element – that is to empower our children and their parents so as to minimize the stroke of these threats to children. We agree that this is not an easy task but is an eventual solution without side effects. We will elbaborate in the section “Publicity and Public Education”.

17. In Section 4.A2(2) paragraph 2.6 of the consultation paper, it was proposed that “web users are required to input their credit card data before getting access to webpage containing indecent materials to ensure that they have attained the age of 18”. We think that this measure is ineffective and has a lot of side effects. We are against using this mechanisms for authentication of age.
(a)A credit card is used for transaction and the authentication is via signature plus the credit card number and expiry date. The credit card number itself cannot authenticate the owner nor indicate the user has attained the age of 18.
(b)Children can get valid credit card number in many ways. Since there is no billing process to activate a notification to owner, the card owner is not even informed of the number being used for access of content portal with indecent content.
(c) The content portals to keep the log of credit card numbers used imposes additional burden on privacy protection on server side.
(d) Criminals may utilize this mechanism to set up malicious portal to capture credit card number for fraudulent purposes.


Publicity and Public Education

18. Government support for parental care and sex education
Parents play an important role in protection of children and sex education. Many parents are facing a digital divide problem -- they are less capable then their children in computer literacy. They found it discouraging to work alone. Government should provide more support to parents, promoting parental care and empowering parents with tools and resources to deal with the problem. This can be done via funding non-government organizations to hold workshops, to develop tools like client side filtering and blacklists, to develop education kits, and to receive enquiries from parents.

If parents can confidently discuss sex and surf the web with their kids, children would seek advices from them when they have difficulties. The threats of cyber bullying fraud, obscene content can be much minimized by empowerment than blocking.


Conclusion

19. The problem we are facing is the flooding of obscene and indecent articles in the society in different media channels. This trend will continue as the world is becoming more connected and more open. Fear, Uncertainty and Doubt should not drive us reversing back to a close society with more social control. We must not trade our freedom of expression and information access, and our reputation as an international city lightly for concerns.

20. The most prosperous economies in the world bear some commonalities – they are economically, socially and politically free and open comparatively. Facing the challenges from neighbouring and global competitors, Hong Kong must maintain our openness. Our children should be given the best access to information to allow them to think ahead.

21.We have to deal with the problem with a forward looking perspective. The trend of global connectivity, globalization of economy and culture and keen competitions among economies will drive us towards a more connected planet. There will be new threats and new opportunities. Our next generation, a digital native generation, will have a totally new perception of the world. We have to view the problem in a holistic way and adopt a mix of options including not just legislation, but technology, education and empowerment. We have to treat media education for parents and children a higher priority in our education.

If you need to contact us, please email to itvoice@itvoice.hk or phone S.C. Leung 91735967.


Regards,

IT Voice members

CHUNG, Edmon (edmon@itvoice.hk)
FONG, Francis (francis@itvoice.hk)
LEUNG Siu Cheong (sc@itvoice.hk)
SOONG, Chester (chester@itvoice.hk)
YIP, Lento (lento@itvoice.hk)
YOUNG Wo Sang (sang@itvoice.hk)