For some time I have believed that a possible function of the so-called National Classification Scheme Review (NCSR) could be to position the government for a soft-landing, get-out-of-jail-free card in relation to their mandatory internet filtering plan. I most recently discussed my feelings on this topic in this article from last week.

Reading some more about the NCSR over the weekend, I found myself asking if the terms of the review, actually words away the possibility of the filter ever being implemented.

Amongst the clauses for the expected framework for the review, here is the one that I found interesting, stating that the resulting framework must be:

“enforceable and [promote] public trust in the regulatory system.”

For me, the interesting word is “enforceable”, and it makes me wonder how exactly they intend to police this particular aspect of the plan.

Filter opponents know only too well that systems such as The Onion Router (TOR) and Virtual Private Networks (VPNs) would make the filter instantly and trivially bypassable, so to deliver on the “enforcable” requirement of the reviewed classification system, they are going to hit a brick wall unless they ban all possible forms of filter avoidance.

There are of course many other methods by which one might avoid the proposed filter.

Banning any of them immediately delivers a massive scope creep on the mandatory filtering plan. Remember – the government insists that all they would do is block access to a defined list of URLs – not blocking particular service types.

Given that such methods employ encryption to hide the content of their associated network traffic, it would be nigh on impossible to block them.

Traffic flows via TOR might be observable by tracking unusual flows of traffic to and from individual hosts, but this does not categorically prove that the traffic is from TOR, or that the encrypted content within can be deemed “inappropriate” or not.

Detecting encrypted VPN would traffic might be achieved similarly, but again does not provide any kind of indication of what the traffic is. Banning VPNs would anger businesses legitimately using the technology for mobile and remote users, and would therefore be a very unpopular response.

So it gets down to this “enforcable” thing – if they can’t prove that traffic they are suspicious of contains what they might deem as “inappropriate material”, how do they on the internet, enforce their classification system that must be by their own definition, enforceable?

Do they get a warrant to search every computer on the internet in Australia, that they detect with an “unusual” traffic flow that might be TOR or VPN traffic, and which might be “inappropriate”?

I don’t think so.

Even if they do finally manage to put the filter in place, their own goal of having a classification system across “a diverse range of forms of information and entertainment content across media platforms” – which includes the internet – then they’ll have been against their own terms of reference, even before they started the review.

Let alone after it.

There has been some scuttlebutt in recent days in regards to whether the ridiculous iron fist that is the proposed mandatory filtering of the internet in Australia is to go ahead or not. Certainly, there have been a lot of mixed messages, but the most important message of all is that it is not dead.

Prompted by a “quietly tucked away in the fine detail” sliver of the 2011 Federal Budget, in which funding grants towards implementing a voluntary version of the filter by a small set of ISPs – namely Telstra, Optus, and iPrimus – was completely eliminated from the budget due to a “lack of interest”, many have seen this as the death of the filter overall.

Not so.

Almost twelve months ago, Stephen Conroy signaled that the mandatory filter was to be placed on hold for “at least twelve months”, pending a review of the current classification system. I speculated at the time that in calling for the review, that he was posturing for a “save face” way of getting out of the promise to introduce the filter.

For example, the review might “conveniently” find that the filter is unworkable under the current classification system, and the legislation will either be “further delayed” while a new system of classification is drafted and gets its way through parliament, or quietly placed into the “too hard basket”.

Wishful thinking perhaps, but it does leave a potential out for the minister, and in now announcing that the voluntary scheme has been axed due to “lack of interest”, a public backflip would be more palatable, given the “public consultation” he is so fond of has shown so little interest in even a voluntary filter.

In an interview around the time of announcing the review, Conroy was asked if the filter was effectively dead, and if there was any way mandatory filtering could be brought in without a vote in the Senate – given the numbers in the Senate against the proposal after July 1 2011 – and responded with:

“Genuinely, I don’t believe we can, I don’t think there’s a backdoor way we could do it. I think the only way we could do it is through Parliament.”

None of this means the filter is dead – not yet – but at a time when all the ducks need to be lining up in a row to get the plan through, the ducks just aren’t playing ball with Conroy’s plans.

With the government possibly in the process of engineering more “favourable” conditions for a back down, it is going to be an interesting few months in regards to the filtering debate.

Not dead, but the goal posts are shifting – just a little bit more.