On preventive censorship versus punishment

In the last few years, there has been an increasing tendency of so-called democratic governments to increase the amount of control they have over their population, under the guise of various “emergencies”: terrorism, child pornography and of course a slightly more honest concern over property rights. Just today, the Australian attempt to mandatorily censor all internet feeds to eliminate child pornography has been attacked as ineffectual.

It is, of course, due to the technical nature of the internet, but that is, I fear, the wrong objection.

Cast your mind back to the end of the nineteenth century. The new communications technology then was the post and the telegram. Now, telegrams were sent, as it were, “in the clear” and so senders tended to be circumspect, but the mail then, as now, was private.

Suppose, in the light of terrorism from the anarchists and revolutionaries active at the time, the government said that it would open all mail and read it to ensure that no untoward things were being communicated, and what is more, the censors were not accountable to anyone but the presently elected minister, and in practice not even then.

Suppose that no rules as to what were prohibited were published, so as to not excite the population about forbidden fruit. Suppose that someone’s mail could be intercepted and prevented from being received by agents of the government, and the sender would not even be told of this.

Would this be acceptable? I suggest it wouldn’t, then or now, and the Kafkaesque nature of such draconian censorship would not be ameliorated by the claim that it was in order to protect the innocent. One can envisage an Edwardian Labor minister of the day holding his coat like a barrister as he accused opponents of the censoring of mail of not wanting to protect the children.

The fact is, even if mandatory filtering were possible technically, this is a kind of Stalinist statism, or a fascism. It suggests that the population is not able to make choices properly, and that it is up to the politicians and administrative arms of government to do it for us. It also suggests that one should punish before the act that is sanctioned is committed, like a Minority Report style interdiction.

If an act is rightly condemned – such as murder – it is the government’s duty only to punish those who transgress. When the crime is committed, then the law comes into effect. If there is no crime, the law has no role to play in the lives of citizens going about their lives. What mandatory censorship does it invert this: before there is a crime, you will be held accountable.

Worse, powers held by governments must be balanced and checked to prevent abuse. But this is completely unchecked. We are expected to think that not only this minister (who I personally wouldn’t trust to run a chook raffle), but all subsequent ministers and prime ministers and lobbyists and police and bureaucrats and indeed anyone who might prejudice the process is honest and competent.

Did we not learn anything from the past three centuries? Star Chambers? Monarchical absolutism? Special Branch? Intelligence agency failures? Does none of this ring any bells? No? Then get the hell out of power, because you have no right to be doing this, Conroy.

I would once have expected those who are on the conservative side to protect individual freedoms from such statism, but these days they are as much at fault, in Australia as anywhere else, of abuses of power and control as the other sides of the political paddocks. I applaud that Senator Minchin (no relation to this guy, I think) is on the ball about the technical stupidity of filtering, but I really want to see him follow the Greens and attack it for being wrong in principle.

And non-Australians? Watch out. This is coming your way. The UK is already highly controlled, and other countries are going to try it if it works anywhere. The Chinese have dropped the mandatory aspect of their Green Bank filtering, but Malaysia is trialling it now, and it’s not a long leap to European and New World countries doing it. All it takes is a little bit of paternalism

Won’t somebody think of the children when they grow up?

7 thoughts on “On preventive censorship versus punishment

  1. Once again, a well argued protest, John.

    But is the criticism having any effect on this government? I suspect that the practicality point (you won’t be able to censor the internet, Minister) will eventually have more force with this government than the point of principle – (what about freedom of speech, Minister?)

    Once he got going, I never considered John Howard as any sort of conservative, at least in legal terms – habeas corpus anyone?

    But Kevin Rudd has done nothing to turn back the erosion of civil rights, and is in fact intensifying it in some respects.

    What in practice can be done about this?

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  2. Excellent historical examples aside, all I could think when you mentioned the hypothetical example of someone opening and censoring mail without the knowledge or oversight of another party was of Pfc. Wintergreen refusing to deliver letters because they were “too prolix”.

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  3. Not only is information being filtered away from you, but detailed information about you is increasingly given to those in power – banks, insurance companies, and the government. All in the interest of “your protection” and national security, of course. One begins to wonder exactly whose security that is. Wherever there is power, there is corruption, and technology leverages that power immensely. Equally powerful checks and balances would at least help keep it to a minimum.

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  4. I don’t think you are correct about the principle here: it is not as clean as you think. There are many instances where it is appropriate for the law to intercede before the act.

    This is sometimes done by outlawing the act of preparing to commit the act. For example, conspiracy (two or more people planning) to blow up a building; or possession of implements to commit burglary or arson with the intent to commit burglary or arson. In general, a key element of the prosecution of such “crimes” is proving (at least in theory) an intent to actually commit the ultimate act, but that doesn’t change to fact that it allows the government to step in and prevent something before it happens (and to impose punishment on a person despite them not actually committing the act), when they have not yet actually “breached the peace”.

    And there are a lot of laws that prohibit peaceful acts (and to punish the breach) to minimize the chance that an unlawful one might occur; such as prohibiting the possession of firearms in some government buildings and courtrooms (in jurisdictions where carrying a firearm is otherwise lawful). In these cases, conviction does not require the prosecution to prove they intended to commit a bad act; only that they intended to do what was prohibited (in this example, bring a firearm into a prohibited area).

    That is the tension in a “free society”. There are lots of freedoms that we have that harm no one, yet we agree to give them up, or to allow heightened scrutiny by the government (i.e., they become prima facia probable cause to violate our privacy or to detain and investigate).

    The arguments are over what falls into that category. Most people would say driving around with a car full of bottles of gasoline with rags stuffed in the openings would fall in that category. Few would say driving around with a copy of the “Anarchist’s Cookbook” would qualify. A loaded gun? A disabled hand grenade? A live grenade? A live grenade with the pin pulled?

    It really is a test of how severely you view the ultimate act, and what freedoms society is willing to forgo to prevent those acts. We all would like the government to be able to stop and lock up the person who has announced their intention to kill someone the moment they take the first steps that show their determined intent to succeed. We are less concerned before hand about the person who declares their intent to drive 50 in a 40 MPH speed zone.

    So I think the real issue here is that you don’t think the acts that are targeted by the government intrusions (pornography, for example) warrant the sacrifice of our liberty that the government intrusion impose. The problem is that there are others that disagree about the nature of the ultimate acts, and what they are willing to sacrifice to prevent them.

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    1. Thanks for that comment. I agree the law is not clear, but the principles are. If you wish to legally intervene before some outcome is reached, then make preparation for that outcome the crime, or negligence leading to that outcome. But you must never punish someone for the possibility that the crime will be committed. If having the tools for burglary is the crime, then punish it; if not, then you simply cannot. If having the intent is the crime (and boy, the problems in showing that need to be discussed in legislation and public debate), then that is the crime being punished. And in each case, the actual committing of the outcome must be punished either separately or more strongly than the intent/preparation. Going armed to cause affray or murder must be less punishable than actually causing affray or murder.

      Any government that sought to argue that it was justified in preventing a crime by intervening in human activities that were not, in themselves, crimes, should be immediately kicked out of office. And any law that seeks to penalise those who have no intent or preparation to commit a crime is bunk and should be overturned by the highest courts, in a rule of law, no matter what the government aims to say about it.

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  5. “[1] Any government that sought to argue that it was justified in preventing a crime by intervening in human activities that were not, in themselves, crimes, should be immediately kicked out of office. [2] And any law that seeks to penalise those who have no intent or preparation to commit a crime is bunk and should be overturned by the highest courts, in a rule of law, no matter what the government aims to say about it.”

    Governments do this (interfere in lawful activities) [1] all the time, generally with widespread support. Most conversations recorded under legal wiretaps are lawful and unrelated to any crime, but get recorded and examined nonetheless. A late-working carpenter driving in a high crime area will manifest probable cause (all those “burglary tools” hanging off his truck, late night, high crime area) to legally justify a police officer to detain and question him. In the US, the details of a money exchange of $10,000 or more will get reported to the US government. It’s illegal here to “stock up” on pseudoephedrine (because I might be temped to make meth).

    [2] Carrying a loaded weapon into the supreme court? Sometimes restrictions are necessary to allow things to function without an undue burden on things like security, etc. (Let people bring loaded guns into the US supreme court, and half the audience would have to be security officers to monitor things).

    It doesn’t help your argument to base a distinction on the existence of a law that says “doing this particular, otherwise lawful, act is against the law”. For one, that’s the “out” that repressive regimes use. (He wasn’t punished for criticizing dear leader, he was punished for breaking the law that prohibited criticizing dear leader.) Secondly, in reality, that is exactly what these laws do, and the legality of the act should be the focus of debate. (Visiting a particular website is now de facto illegal, and the interwebs police are charged with preventing you from doing it, based on the evidence that your browser is pointing to it). You say the act is lawful, but in actuality the law says it is illegal.

    In summary, my point is that there really is not a clear principle that cleanly cuts this issue. It really is a policy question about that the public will tolerate to address this particular “evil”. (Since they seem to be getting away with it, I gather that most of your fellow citizens view the evil as closer to the murder end of the spectrum than to the spitting-on-the-sidewalk end.)

    BTW, hate your comment box. too tiny, and no preview. (So all typos and jumbled thoughts are your fault.)

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  6. BTW, hate your comment box. too tiny, and no preview. (So all typos and jumbled thoughts are your fault.)

    A real man takes responsibility for his own dyslexia

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