OPINION: AUSTRALIA VS TECHNOLOGY

An opinion piece by Struan Caughey

Google would be in the right to pull out of the Australian market. This is due to their Governments’ poorly thought through legislation and lack of understanding around

digital technology.

Throughout this piece, I will be looking into the Australian Government’s approach in its attempt to regulate the internet through two separate pieces of legislation. The first will be looking at the impact of The Assistance and Access Act 2018, specifically its effect on encrypted messaging. The second will be reviewing the impact of the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 and looking at Facebook and Google’s responses to these.

The Assistance and Access Act 2018

On 6 December 2018, the Australian Government required companies to provide access to encrypted data on request. This specifically affected end-to-end encrypted messaging applications such as WhatsApp and Signal as this, in essence, banned their technology. The reason cited was for “national security” in response to the increasing threats of terrorist attacks across Europe and domestically. There are three major flaws with this. The first being a privacy issue, the second is the technical and security issues of implementing a system that would be compliant, and third is the ability to circumnavigate the legislation, rendering it ineffective.

Privacy: First are the ethical issues of this approach. If two

people have a private conversation in a private location, the vast majority of people would agree that both parties would feel violated if a third person was listening in, irrespective of whether it is a friend eavesdropping or a government planted bug. There is an expectation within society that private conversations are kept private. Why should this not be true when you are having the same conversation via a digital platform? This also ignores the impact this could have on people who require such protections, such as government whistleblowers.

Technical Limitations: The second, and arguably the more compelling point, is the technical limitations of such an approach. To understand this, one needs to understand how end-to-end encryption works. We will look at a situation where person A is sending a message to person B through WhatsApp.

The system works through two keys, a ‘public’ and a ‘private’ key; both keys are generated on person B’s device. The ‘public key’ is then broadcasted by person B’s device and is available to everyone. This can be used by person A to encrypt the message on their device before sending. This message can now only be decrypted by the ‘private key’, which should only exist on person B’s device. This makes it nearly impossible for anyone to see the message’s content, including WhatsApp, the messaging provider. This is a robust system as it is highly secure, being virtually un-hackable except through brute computational force. Brute force would in itself take thousands of years on current technology to work. Even if an individual’s private key did get revealed, you could never construct a large scale attack on an app using the technology, provided that the encryption is properly implemented.

For the Australian Government to have access to the messages, they would have to hold a copy of the private keys. This could be done in several ways, but all of them leave the individual’s security open to malicious actors. The simplest interception approach would be to have either the Government or individuals phone generate the private key, and then send it to the other. However, this immediately opens a vulnerability to potential bad actors who could intercept this. The other alternative is that all messages get sent to a second account, the governments’ account, but this is large-scale data collection that the public would be unlikely to support.

Suppose you could get messages to the government securely. In that case, this relies on their storage being both secure and unable to be accessed by malicious actors. While you would hope that a government would be capable of doing this, recent news show this is not necessarily the case. In November 2018, Brazil’s high court launched an investigation into a hack that shut all proceedings down. This should be a warning to err on the side of caution. This situation has the possibility of happening with the Government of Australia.

Ineffectiveness: Any organisation that wanted to have encrypted communication for nefarious communication has options; they could code their own app, sideload an existing app or use a VPN to get an existing app from another country such as Signal. Programming your own app is not overly advanced, as Signal’s code is open source.

Putting the three issues; privacy, security and ineffectiveness, together, we can see how this legislation demonstrates the Australian Government’s ignorance in producing this legislation.

Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021

We now look at our second case study, the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021. The internet has existed as a platform, since its founding, where publicly accessible information is done so freely. The legislation we are considering has attacked that existence and even brought out Tim Berners-Lee, the person credited with founding the world wide web, to speak on the issue. He stated that this bill “risks breaching a fundamental principle of the web by requiring payment for linking between certain content online”.

To explain how Australia has brought such heated debate to the forefront, we must look at the legislation and its implications. As both Google and Facebook have been in the news regarding this legislation, we will look at this bill from their perspectives. We will look at the current system, the issues with the legislation and if there are other solutions.

The legislation’s key point is to require payment from content distributors, such as Google and Facebook, to news sources for the sharing of their articles, as they make income from ads on these searches. Without context, this doesn’t appear to be too great an issue. At first glance, it appears to be a good way for news organisations, who in general have struggled with finances due to the shift to digital, to gain a new stream of income. That is until you look at who the primary beneficiaries of the current system are.

Pre-existing system beneficiaries: In the current system, Google and Facebook benefit from sharing these articles since it brings traffic through their particular services. This, in turn, allows them to run ads on these searches, which generate income. The other side of this is the benefits to the news publishers. By being made available through these services, traffic is directed to their site. Again, this allows them to run adverts on their site, allowing them to generate revenue. You could argue that the primary beneficiary in this system is the news sites, as Google and Facebook do not require news sites to operate, whereas, for the news sites, the ability to reach a global audience through these services is invaluable. Because of this arrangement, the idea of Google and Facebook having to pay for, in their eyes, facilitating a service to these news outlets makes little to no sense.

Arbitrator issues: The situation worsens with the method that the Australian Government is implementing as the payment system. The two interested parties have to agree on the price which they feel that the news organisation should be paid. This is then what is charged; however, an arbitrator decides the value if an agreement is not made. This is not able to be appealed. This gives a considerable amount of power to the news organisations, as even if they had previously been okay with the existing situation, there are no repercussions to them asking for as high a value as they wish as, at worst, this will just go to arbitration. This has already occurred with News Corp claiming that they should be paid between $600 million and $1 billion USD for their content by the likes of Google and Facebook. In contrast, Google has stated that they only earn around $10 million USD in advertising revenue from searches related to news-related services in Australia for 2019, while Facebook stated, in response to being asked a similar question at a Senate Committee hearing, they earned “virtually zero” revenue.

Reaction and backlash: You can see that in this situation, the tech companies may not be inclined to engage in the system that leaves them with so few options. For this reason, I am sympathetic to Facebook removing news sites from their Australian operations and not publishing any of their links abroad, as well as Google's consideration to remove themselves from the Australian market altogether. However, I feel that they did not go about this in a way that was likely to garner public support. They did not clearly explain their reasoning, which made it appear that these corporations were using their size to force and manipulate a government. In reality, it was their attempt to demonstrate that they may not be able to operate economically as usual under these new rules. Both acted overzealously, especially Google, which led to the public outcry against them.

These corporations deciding that they do not want to work under these situations is a perfectly legitimate response. I would understand if they withdrew, at least, the most affected services from the Australian market. If this had happened, the stakeholders worst affected would have been the news corporations. Facebook and Google ended up shooting themselves in the foot as they lost public support, taking away their perceived position of control.

Revealing trade secrets: The final issue with this legislation is that one of its requirements is that the tech companies must let news corporations know about any change in their algorithm, which could affect the standing of their news in the search results. How this will be conducted is still unknown. As an example, Google makes a multitude of changes to their algorithm daily, most of which don’t even require human input and many times, even Google may not be aware of the effect of a specific change. On top of this, Google, as a business is essentially their algorithm; everything else is auxiliary. To give this information up is giving up trade secrets.

Another way: There is widespread acknowledgement that news sources are struggling, and to all the failings of this legislation, at least the Australian Government is attempting to remedy this issue. But what are some alternative solutions? There are a few ideas that have been floated. One is, interestingly, a project of Google’s. A new service called Google News Showcase may be coming to New Zealand. This has Google pay and curate news corporations for articles that are made available for free to users. This can also include paywalled news sites, and brings the reader directly to their websites, resulting in increased traffic to the news corporations. These stories would later be made available freely on the web. While this does bring in the new stream of revenue required by their news corporations, it also does not entirely undermine Google's negotiating position. As a solution, this is a sort of halfway house. There have also been suggestions of allowing taxpayers’ funds to be made available to supplement news organisations. This can be argued, as some see it as a democratic right to have access to a wide array of news sources; however, this could be criticised for reducing the autonomy and impartiality of news sources. There may not be a clear way to resolve the issue.

Conclusion: As we continue to push into the digital age, more of these issues will become apparent, and we have to try for better systems of distribution that do not impact the freedom the web has been founded upon. Brute force such as the Australian methods are not the way forward; they break existing systems and risk reducing freedoms of individuals and companies, while remaining ineffective at their objective. In the end it comes down to the individual, you the reader. If you value digital news from a particular source and are able, then subscribe or donate to them. As for the end-to-end encryption, keep pressure on your local representatives and educate them. While their intentions may be good, they are acting on areas where they lack knowledge. It is dangerous and impacts us all. Lastly, if you have the ability to influence changes like the ones mentioned, have just one take away: don’t look to Australia.