Tech Liberty NZ Defending civil liberties in the digital age

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HDC Bill: oral submission

Posted on March 26, 2014

We made an oral submission to the Justice and Electoral Select Committee about the Harmful Digital Communications Bill as a follow-up to our written submission.

This oral submission concentrated on two misconceptions that we see as underpinning the bill: that speech should never harm anyone, and that different rules should apply to speech online and offline.

We then discussed problems with the effectiveness of the bill - and how it might not be that useful for victims of digital harms but might be quite handy for people who want to suppress the views of others.

Submission: Harmful Digital Communications Bill

Posted on February 21, 2014

Text of the Tech Liberty submission to the Justice and Electoral Select Committee concerning the Harmful Digital Communications Bill. (Or download PDF of original version with footnotes.)

Summary

We believe that this Bill is based on false premises about the nature of freedom of expression and the differences between digital and non-digital speech. We see the Bill as being a well-meaning but misguided threat to the civil liberties of New Zealanders. We fear that the Bill will be ineffective in too many cases where it might be needed most, while being too effective in the cases which are most problematic to civil liberties.

We support the establishment of an agency to assist those harmed by harmful communications and believe that this will go a long way to resolving the types of situations that can be resolved.

We believe that the court proceedings are unfair and unlikely to be of much use. We support the discretion and guidelines given to the court in making a judgement, but believe that the procedures of the court need to better take into account the requirements for a fair trial.

The safe harbour provisions for online content hosts are unreasonable. While online content hosts do need protection from liability, the suggested mechanism amounts to a way that any person can get material taken down that they don’t like for any trivial reason. This section needs to be completely rethought in the context of overseas experiences to ensure that freedom of expression is properly protected.

The new offence of causing harm is poorly conceived and criminalises many communications that are of value to society. If not removed in its entirety, defences and an overriding Bill of Rights veto should be added.

We have also made comments on the changes to the Harassment and Crimes Acts.

TICS Bill – Oral Submission

Posted on July 10, 2013

Text of our submission to the Law and Order Select Committee re the Telecommunications (Interception Capability & Security) Bill.

 

Introduction

I represent Tech Liberty, we’re a group dedicated to defending civil liberties in the digital age.

In general we support the ability of the government to have interception capabilities on telecommunications where possible, when those interception capabilities have suitable oversight and control. However we fear that technological development is slowly making this lawful intercept regime increasingly irrelevant.

We’ll be addressing this and some other elements of the first two parts of the bill, before talking about the proposal to make the GCSB responsible for cyber security in New Zealand.

GCSB Bill – Oral Submission

Posted on July 3, 2013

Text of our oral submission to the Intelligence and Security Committee concerning the GCSB Bill.

Introduction

I represent Tech Liberty, we’re a group dedicated to defending civil liberties in the digital age.

We see many problems with this bill and the thinking that lies behind it, problems that we described in our written submission. Today I want to concentrate on just a few of those that are particularly central to our group’s reason for existing.

Submission: GCSB Bill

Posted on June 21, 2013

Full text of the Tech Liberty submission to the Intelligence & Security Committee concerning the Government Communications Security Bureau and Related Legislation Amendment Bill.

Summary

Tech Liberty has deep concerns about the extent of the powers granted to the GCSB by this Bill, especially when combined with the proposed changes to the Telecommunications (Interception Capability) Act (2004) contained in the TICS Bill.

We do not believe that the GCSB should be spying on New Zealanders. We are particularly concerned with the Bill’s silence on the GCSB’s existing practice of collecting and analysing metadata.

We do not believe that the GCSB is the right agency to have oversight and control of New Zealand’s telecommunications infrastructure in the name of “cybersecurity”.

We do not believe that the Bill makes any significant improvement to the current woefully inadequate oversight procedures.

We submit that this Bill and the TICS Bill should both be rejected. Rather there needs to be a formal review of New Zealand’s domestic and foreign intelligence requirements.

Submission – Telecommunications (Interception Capability & Security) Bill

Posted on June 13, 2013

Full text of the Tech Liberty submission to the Law & Order Select Committee concerning the Telecommunications (Interception Capability & Security) Bill.

Summary

In general we support the ability of the government to have interception capabilities on telecommunications where possible, when those interception capabilities have suitable oversight and control. We have made some technical suggestions on how Part 2 - Interception Duties could be improved and clarified:

  • Publish a list of service providers with interception responsibilities.
  • Remove the ability for the Minister to ban the resale of overseas services.
  • Clarify the duty to decrypt to indicate that it does not require network providers to supply deliberately weakened encryption with government backdoors.

We reject the idea that the GCSB should have oversight and control of communications networks in New Zealand. No need for this has been established and the use of an agency whose main focus is spying on external organisations is inappropriate and open to abuse. We therefore recommend the removal of Part 3 - Network Security in its entirety, possibly to be replaced by the establishment of a coordinating and consultative, not controlling, network security body.

Finally, we find the idea of evidence being presented in court that cannot be seen by the defendant and their lawyer to be extremely offensive to the right to a fair trial as promised by section 25 of the Bill of Rights Act. We therefore recommend the removal of Subpart 8 - Protecting Classified Information (sections 96-98). If this is retained we recommend that the appointment of a special advocate as in 97(3)(c) should be mandatory rather than optional.

New Media submission opposes media regulation

Posted on March 13, 2012

Tech Liberty made a submission to the Media Regulation review run by the Law Commission. The summary of our submission is as follows:

We recognise that "big media" still has a lot of influence in New Zealand but that this influence is declining as the internet gives people the ability to:

  • self-publish ("little media")
  • share and distribute self-published articles
  • publicly critique the work of big media.

This change can be seen in the way that online media such as blogs used to be very reactive to work published in newspapers and TV, but now newspapers and TV are increasingly picking up stories from blogs and other forms of social media.

Much of the rest of the review was about how the media should be regulated but we believe that the need for greater media regulation has not been established.

Defining news media

The review suggests that regulation could be a trade-off for official recognition of news media, and spends a lot of time discussing who would be included in the definition of "news media". We believe any definition would either be so broad as to be useless or so narrow that it would miss out many people and publications that arguably should be covered. This is especially true as journalism continues to develop and change in the internet age.

Special privileges for news media

The review suggests that we need a definition because some laws refer to the news media to bestow special privileges. Our preference is that these privileges should be extended to all citizens (e.g. replace the media "fair dealing" section in the Copyright Act with a more general "fair dealing/fair use" provision for all people) or should be available to all people when they are acting as a journalist.

Furthermore, any organisation that wish to include/exclude "news media" can make their own determinations as to who that is rather then relying on a government mandated definition.

External regulation

We do not believe that there is a need for an external regulator. Indeed, as the internet gives people the means to publicly criticise the output of big media, the need for a regulator is reduced compared to the days when only a very limited number of media companies could get their views out (due to limited airwaves or the need to own a printing press).

Current regulation is also generally quite ineffectual. The original message still goes out and then any correction is ignored as the issue is no longer "news". Regulation tends to be after the fact score-keeping at best.

Any publishing company or journalist who wishes to be taken seriously has the ability to form a group and create their own code of ethics and regulator. The Press Council is an example of this and we do not see why other media groups who wish to be taken seriously could not do the same.

Finally, if there was a regulator our view was that it should be in the form of an Ombudsman with the ability to make morally rather than legally binding decisions.

Malicious speech online

The second part of the review was about harmful speech online.

We agreed that malicious speech online can be a problem just as it is when face to face Furthermore, the nature of the internet means that the malicious speech can both spread further and remain available longer.

We believe that the law is limited in what it can do about people being nasty to each other, either online or in person. Even if current law could deal with these issues, the international nature of the internet and the inevitable jurisdiction issues would mean that only a small proportion of problems could be resolved.

That said, many of the more contentious issues will be conducted by people who know each other well and probably even live in the same area. The law should be able to deal with issues of harassment using existing laws (possibly with the tweaks identified by the Commission to ensure that online communications are definitely covered).

We reject the idea that speech online should be held to a higher standard than any other form of speech.

We do support the creation of a new crime of "malicious online impersonation" with the caveat that it must be very careful not to include obvious cases of parody and other forms of non-serious impersonation.

No ISP responsibility

We oppose any attempt to make ISPs responsible for taking down or blocking information either hosted on their network or available through it. This is because ISPs typically have no visibility or control over the material that their customers might store on servers hosted with the ISP. Typically an ISP will only have one option - passing the request on to the publisher or turning off the entire site. Closing down an entire site would seem a gross over-reaction to the content of one offending post or comment.

It does seem appropriate to us that an ISP might have a responsibility to pass on a takedown message to the site owner (similar to the copyright legislation) or, upon presentation of a suitable court order, reveal the identity of the site owner so that legal action can be taken.

Submission (oral): Suppression in Criminal Reform Bill

Posted on March 10, 2011

Text of Tech Liberty's oral submission to the Justice and Electoral Select Committee concerning name suppression in the Criminal Procedure (Reform and Modernisation) Bill. (See our earlier articles.)


I represent Tech Liberty, we’re a group dedicated to defending civil liberties in the digital age.

Our submission concentrates on the issues around suppression. It’s split into two parts, starting with some general comments about suppression in the Internet age, followed by a discussion of some of the difficulties with making internet service providers liable for the actions of their users.

General Points

As a civil liberties group, we wish to start by reiterating our support for open justice whenever possible. We believe that the overuse of suppression weakens our justice system and therefore we support the bill’s measures to reduce the availability of suppression. We’re also pleased to see better guidelines about when suppression is appropriate and how it is to be applied.

However, we’re concerned that we’re just rearranging the deck chairs on the Titanic, that suppression is rapidly going to get so hard to enforce that we’re going to have to give up on it - whether we want to or not. This because our ability to store and access information is changing so rapidly.

Submission: Suppression in Criminal Reform Bill

Posted on February 18, 2011

Tech Liberty has made a submission to the Justice and Electoral Committee about the Criminal Procedure (Reform and Modernisation) Bill. (See our earlier articles.)

In this we argue that:

  • We are strong supporters of open justice and believe that overuse of suppression risks weakening our justice system. We recommend that discretion around suppression should be tightened and that most suppression orders should be for a limited time.
  • There are tremendous difficulties with defining "identifying information", particularly when multiple sources may each have a separate piece of information that combine to break suppression.
  • That the nature of "publication" is changing as our personal communications are now conducted in public (Twitter, Facebook). We recommend the offence should be changed to punish those who deliberately breach suppression orders.
  • The nature of the "media" is changing as the Internet has allowed everyone the ability to publish, and that the law should not try to define a privileged class of media. We recommend removing the special standing for traditional news media.
  • That it is unjust to make ISPs responsible for the actions of their customers, and that doing so will lead to false claims. Furthermore that the definition of ISP is unreasonable in that it defines any person who runs a website as an ISP.
  • That ISP-based suppression is technically impractical as ISPs often will not have access to individual pages and would therefore often have to take down the entire website or even a server with multiple sites.
  • We recommend that clause 216 making ISPs liable should be removed in its entirety.

Download the full submission (PDF).

Oral submission : Search & Surveillance

Posted on September 23, 2010

Today Tech Liberty made an oral submission to the Justice & Electoral Select Committee about the Search & Surveillance Bill, following up from our written submission.

We changed some of our recommendations between the written and oral submissions, particularly around:

  • Notifying people of searches or surveillance against them
  • Handling targeted searching of computers

The full text of our oral submissions follows, albeit there were some wording changes in the actual presentation.