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.

Identifying Information

Section 198 defines the term “identifying information” and includes “any other information that is likely to lead to the identification of that person”.

Suppression has always had the problem of three people each reporting a different fact and the combination of the three facts leading to successful identification. However, this problem is getting worse as the Internet increasing people’s access to information.

To illustrate by example, there was a recent case in Auckland where a 46 year old celebrity was granted interim name suppression. As an experiment I set out to find his name. A quick search and I found a page on Wikipedia that listed “well known New Zealanders born in 1964”, looked at the page for each likely suspect and found that there had been recent activity on Martin Devlin’s page. Total time – about 5 minutes from very minimal information.

As civil liberties campaigners we’ve talked about the privacy risks that occur when companies like Google collect and aggregate data from multiple sources and then let anyone search for it.

We’re left with the problem that nearly everything is identifying information when so much data is aggregated, cross-indexed and made available on the Internet.

Publishing information

Related to this, section 199 uses the terms publication and publish.

It is our understanding that suppression has always been aimed at the publishing of information and makes no attempt to stop private communications. This has worked well in the past, but this distinction is becoming less and less relevant.

Have I published information if I post it to Facebook? Does it make a difference if I post it so that only my family and 200 closest Facebook friends can read it?

These published private communications also persist for a lot longer. The chat down at the pub is quickly forgotten but Facebook posts, blog posts, messages on forums and Twitter updates last forever and often can be read by anyone in the world with an internet connection. And, of course, as we just mentioned, they’re searchable by Google and others.

International publishing

Finally, much of this data is published on overseas websites, out of the reach of New Zealand law. For example, I mentioned finding Martin Devlin’s name on Wikipedia.

Conclusion

The combination of these three trends, aggregation and searching, publishing of private communications and the offshoring of publishing, must surely make us all wonder whether our current suppression regime can be maintained.

While we do not oppose the idea of suppression and see that it has a place in New Zealand’s justice system, it may be better to start thinking about how we will have to adapt our system to a post-suppression world.

Internet Service Providers

We now turn our attention to section 216 concerning the liability of internet service providers. We strongly disagree with the idea that internet service providers should be held liable for material published by their customers.

ISPs should not be responsible for the actions of their customers

Firsly, most internet service providers do not have control over what information is published through their systems. Rather they provide a service that lets others publish information. Blaming the internet service provider makes about as much sense as making Telecom liable for a death threat made by a telephone call.

A much better target of the law would be the people who wrote and/or published the information – but existing law already covers this adequately. We recently saw that Cameron Slater was convicted for breaching name suppression orders on his Whaleoil blog.

By adding this responsibility to internet service providers, we are making them liable for the actions of others, something that we believe is abhorrent to natural justice. We are also increasing costs and undermining an industry that is already vulnerable to cheaper providers overseas.

Takedowns

Secondly, there is the very serious problem that internet providers have no way of knowing what information is suppressed.

Consider the case if someone contacts Orcon and says “One of your customers is hosting a website that publishes information in breach of a suppression order.” What should Orcon do?

There is no way that they can prove one way or another if the information is in breach. There is no central registry or place to call to find out. The published information may even be quite cryptic – just a name or a possibly a riddle. And if they get it wrong – they’re liable.

The only sensible reaction for Orcon is to take down the website as soon as they’re notified it is in breach – in effect, an accusation is enough to get a website taken offline.

This is contrary to provisions in the Bill of Rights Act including the right to be secure against unreasonable seizure and the right to be able to defend yourself when accused of a crime.

More importantly, it also undermines the right to freedom of speech. The hair-trigger nature of the requirements on ISPs mean that anyone can get a locally hosted website taken down – even if they’re lying and just doing it because they don’t like what the website says. We note that there is no penalty for making a false accusation.

You may want to think about how desirable this will be in the run up to the election as partisans try to get your political party or personal websites taken offline.

Technical Aspects of Hosting

Finally we want to talk about some of the technical aspects of hosting websites and why it’s not as simple as just saying that the ISP must “delete the material or prevent access to it”.

While the publisher or the person who runs the website can easily remove or hide a single piece of information, the people who provide the computer it’s running on or even just the internet connection do not have this sort of access.

By analogy, you could think of the internet service provider as a bank, with the individual sites counting as safe deposit boxes within the bank. While the bank can control access to the vault with the boxes, it does not hold a key to each box that would allow it to open it and remove a single item. Only the person who rents the box has that key.

The same holds true for ISPs and websites. While ISPs provide the basic services such as power and internet connection, they have no access into the working of the site. If an ISP receives notification that a forum post on a website run by one of their customers breaches a suppression order, they won’t have the necessary login and password to get into the site’s control panel to delete the offending post. Their only option will be to turn off the entire site.

Even worse than that, ISPs often host entire servers for their customers. Each server may contain multiple websites – and the ISP again has no access to their inner workings. If told that there is material on one of the websites that breaches suppression, their only option to avoid liability will be to block access to the server and thereby take all of the sites hosted on that server.

I suggest that this sort of disproportionate response is not what is intended by the Bill, but it’s the inevitable consequence of how the Bill is written combined with how internet services are provided.

Conclusion

In conclusion, we believe that section 216 is an offence to freedom of speech and the right to due process. It imposes an unfair burden on ISPs, forcing them to act as judge, jury and quick-draw executioner. It will lead to false accusations and improper censorship. It will lead to disproportionate responses as entire websites or groups of websites are taken down to remove one piece of information.

And, to what purpose? We already know that the Internet is not beyond the law. We have seen convictions of people for wilfully breaching suppression orders on a website.

We see no benefit in section 216 and no way that it can be made to work. We recommend that it be dropped from the Bill in its entirety.

The website

Soon after the Christchurch quake, a website (christchurchquake.net) was published that said the quake was God's punishment for Christchurch's tolerance of homosexuality, with God being especially annoyed by Gay Ski Week. The website also made a number of other very odd claims concerning a conspiracy of "Phoenician-descended swamp lesbians" headed by Helen Clark that had taken over New Zealand.

The takedown

The site is no longer available (Google cache here). This is because a number of people found the site highly offensive, and some of them decided that they would do what they could to get the site taken off the Internet.

The author of the site could not be identified so most action was aimed at getting Bluehost, a company based in the US state of Utah, to take it down. Two main tactics were employed:

• Complaining that the site was in breach of Bluehost's Terms of Service, particularly section 9.14 against obscene, defamatory, abusive or threatening language.
• Complaining that the site was breaching copyright by including photos that they didn't have permission to use.

Bluehost replied to the first set of complaints by saying that they would only take the site down in response to a court order. Whether they would accept a court order from New Zealand or would require it to be from a US or Utah based court was not obvious.

Apparently the second complaint was more successful. We have been told that Bluehost took the entire site down as it had infringed copyright by taking and using this picture without permission (image includes nudity).

Problems with these tactics

We are concerned with the use of these tactics to take down a website. While many people found the website to be very offensive and even classified it as hate speech (and therefore outside what they think of as allowable free speech), what does it mean about the Internet when a site can be removed this easily because some people disagree with the content?

Should these tactics be available? Would the people who had the site taken down be happy if the same tactics were used against websites that they agree with?

The "Terms of Service" tactic

This was an appeal to Bluehost to take the site down because the complainers said that the site didn't comply with the terms under which Bluehost offer service. It's worth noting that companies see terms of service as being for their benefit and not as a tool to be used against them. Bluehost refused to disable the site unless the complainants could produce a court order.

What would it have meant if the tactic had worked? Surely companies are allowed to decide which customers they will serve? What if dealing with complaints about the site are taking up too much staff time?

While everyone lauds the Internet for allowing anyone to exercise their right to freedom of expression, the reality is that to do so means getting some sort of service contract with a commercial company. Whether it's space on a webserver, use of a shared blogging service or even a connection for your own server, it will be subject to contractual terms imposed upon you by the provider.

We've already seen what happens when corporates turn against someone, with Mastercard, Visa and Paypal all deciding to stop processing donations for Wikileaks. Do we want companies to be deciding what we can and can't see on the Internet?

In New Zealand we already impose restrictions on the conditions that companies can include in their contracts. The Human Rights Act forbids them from discriminating against certain classes of people, while the Consumer Guarantees Act forbids them from opting out of consumer protection laws. To ensure that we all have access to the Internet do we need further conditions obliging them to offer service on the same terms to everybody?

At Tech Liberty we support the idea of ISPs having common carrier status. This gives the ISPs legal protection and means that they are not liable for the actions of their customers, but it also imposes a duty to offer service to all-comers on the same terms. This would mean that ISPs can't be forced to make difficult legal decisions about whether content breaches the law, nor will they be obliged to decide whether they find the content of websites acceptable or not. Freedom of expression will not be limited to whatever the public relations department doesn't find too scary.

At Tech Liberty we believe that we will all be better off if ISPs and webhosts stick to providing a service and leave decisions about censoring content to the courts.

The "breach of copyright" tactic

The tactic that persuaded Bluehost to take the site down was accusing the site of including copyright material without permission. In other words, an accusation of copyright infringement over a single image was used to suppress a website that the complainant disagreed with. How could this happen?

Under US (DMCA) and NZ law (s92c of the Copyright Act), the internet provider is liable for breach of copyright if they are told that one of their customers is hosting infringing material and they do not take action to remove it. Copyright law is complex (e.g. how much can you quote from an article?) and therefore they tend to err on the side of their own safety and remove the website immediately without giving the website's owner a chance to defend themselves. It truly is guilt and punishment upon accusation.

This ability to get material taken down, quickly and without argument, has naturally been abused by people who have other reasons to suppress information. For example, the Church of Scientology has used it to suppress criticism of the church. Google estimates that 37% of the requests it receives are bogus. We note that the US DMCA law has provisions for after the fact counter-notices and punishments for false accusations while the New Zealand copyright law does not.

We think that taking an entire website down based on it containing one possible infringement of copyright is a gross over-reaction. However, the laws are written so that it is the safest course for an internet provider to follow. (There are technical reasons why it may not be possible for the internet provider to block access to a single image. See our submission on NZ's proposed suppression law for more information.)

Furthermore, the idea that the website will be taken down upon accusation with no chance for the owner to defend themselves, is a gross abuse of due process. Once again, any accusations of this nature should be decided on by a court or tribunal, not a risk-averse corporation.

Conclusion

We fully understand that many people found the site in question to be highly offensive. We sympathise with their desire to get it taken off the Internet even if we may not agree with it.

However, we oppose the tactics that were used to take the site down and believe that they are inappropriate in a democratic society.

• We do not want a global Internet where corporations get to decide what can be published.
• We believe that internet providers are not the right people to make decisions about whether published material breaches the law or not.
• We think that "guilt upon accusation" is a terrible idea and an affront to our civil liberties.
• We support the idea that internet service providers should not be liable for the actions of their customers and that, in exchange, they should be obliged to offer service to all customers on an equal basis.

If published material breaks the law the correct place to determine this is through the justice system. This is the only acceptable option in a society that supports freedom of speech and the rule of law.

See our post updating this article.

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).

The Criminal Procedure (Reform and Minimisation) Bill is an omnibus bill that makes significant changes to the New Zealand criminal justice system. In its attempt to reform and streamline, it weakens the right to a jury trial, takes away the right to silence and forces defendants to help the Police make the case against them.

It also changes the law around name suppression. While we support the attempt to make name suppression harder to get, we have serious concerns about the attempt to make ISPs liable for breaches of name suppression online. Read section 216 of the proposed law and then consider some of these questions:

"ISP" is defined to include people who provide Internet as well as anyone who hosts material on a website.

Q. Why do they use the term "ISP" when the definition very clearly shows that anyone who runs a website will be classed as an ISP?

The ISP/website owner is liable to a fine of up to $100,000 if they have 'reason to believe' that some material on that website breaches a suppression order.

Q. Is an anonymous email adequate reason to believe? What about email from a stranger? A customer? A lawyer?

Q. Does this mean that the ISP/website owner has a duty to monitor news media to find out what information has been suppressed?

Q. Does this mean that the ISP/website owner must actively monitor user-created content (such as forums) to check for suppressed material?

There is no way to find out what information is suppressed.

Q. If you were about to publish something about a court case and you wanted to know if any of it was suppressed, how would you find out?

Q. If the courts than change the order how will the ISP/website owner know to undelete the material?

Some people have suggesting fixing the bill by creating a register of suppression orders.

Q. Who would be allowed to have access to this register of suppressed information?

Q. If all ISPs/website owners might be liable won't they all need access to the list? In which case won't everyone who wants to know who was charged just register as a website owner?

The ISP/website owner can protect themselves from liability by deleting the material or blocking access to it.

Q. If you were an ISP/website owner and someone accused one of your users of breaching a name suppression order and you were going to be criminally liable if you made the wrong call... what would you do?

Q. Can an article that includes clues to the information breach a suppression order? How much legal training does the average ISP worker or website owner receive?

Q. How is an ISP meant to delete a comment from a customer's online forum when it might not even have an account on that forum software? Do they have to take down the entire site?

Q. How is an ISP meant to remove an article from a customer's server they host when they might not even have access to administer the server? Do they have to shutdown the server thereby possibly taking down many websites?

Q. If an ISP/website owner disconnects a customer server, are they liable for damages caused to the customer's business?

There is no penalty for falsely claiming that information is suppressed.

Q. If you were charged in court and refused name suppression, what's to stop you sending takedown notices to ISPs saying that you were granted suppression and they need to remove your name from the article?

Q. How would an ISP know if this person was telling the truth or not?

The law has no effect on material hosted overseas.

Q. What's to stop someone creating suppressednames.blogspot.com and anonymously posting suppressed information there, where the NZ courts couldn't do anything about it?

Q. Is there any point removing suppressed information considering that it will have already gone out to Twitter, RSS feed readers, the Google cache and other places?

Drop ISP liability from the Bill

We think the proposed law is both technically and legally ridiculous.

• It is unacceptable to force ISPs and website owners to make complex legal decisions about the actions of others at the threat of 6 months jail or a $100,000 fine if they get it wrong.
• It is unacceptable that this Bill will mean that anyone can claim that some information is suppressed and that there is no way for the liable person to check.

We recommend that section 216 of the Criminal Procedure Reform Bill be deleted in its entirety. The ease of publishing in the Internet age may mean that it's already too late for suppression orders, but as the conviction of Cameron "Whaleoil" Slater shows, current law already provides sufficient protection for the current regime.

Get your submission in by Feb 18th.

The following notes were made at the session. They give a general idea of what was discussed but should not be taken as definitive or complete.

Notes from InternetNZ - Name Suppression
3 February 2011

Introduction from Jordan Carter

Part of a trend towards turning ISPs from neutral conduits to Internet Police.

• copyright, filtering, now suppression

================================

Warren Young - the Law Commission view

Here to listen and learn.

Commission's recommendations from the report have been largely picked up by the bill.

Current regime - things are left up to the courts. Case law has been developed over time. The provisions have largely picked up on those conventions.

Differences between the bill and the report:

• bill includes automatic suppression of the names of child (under 18) victims and witnesses.
• bill provides for registrars to be able to grant interim suppression (once, for up to 28 days, if parties agree). Basically a pragmatic change.
• bill wants to codify the right of media to have standing to speak to name suppression (clause 214)
• bill includes that a person is well known is not grounds for suppression
• report said offence if ISP knew, bill says knew or has reason to believe

Name suppression in relation to the accused

• case law says it should be the exception, must be strong factors to be granted
• bill says "extreme hardship". A very high bar, higher than the current test.
• Warren continues to be astonished that the media says that the effect of the provision will make it harder for celebrities to get name suppression. His perception is that it's always been hard. But it will still be easier for celebrities to get name suppression than other people because if you're well known, extreme hardship is more likely.

Offence Provision

• has been tightened from text of report
• claims better definition of ISP
• taken from Copyright Act 2008

Rick Shera - A Legal Analysis

Section 216 (ISP) assumes that someone has breached the order and published it. But then quotes a Court of Appeal ruling that says that once the information is out there, there's no point continuing with suppression. It's shutting the stable door after the horse has bolted. It's futile - and futility is taken into account by the courts.

The Global Internet - but of course they managed to get Slater.

The Lewis case - US billionaire caught with marijuana. Suppression failed miserably.

ISPs ask "Why are you making us liable? We don't know anything about it."

Makes comment that there is no precedent for this anywhere in the world.

What is an ISP?

• the problem is that nearly everyone is an ISP
• universities, libraries, businesses...
• catches multiple ISPs (information passes through a chain of them)

(Note: Rick might be a bit off track here, current definition tries to only include content hosting ISPs, not transmitting ISPs.)

How does an ISP know?

• reason to believe vs actual knowledge (lacks mens rea - guilty intent)
• media already have difficulty working out what is suppressed
• contrary to LawCom report (and Cabinet approval of report) that said that ISPs must *know*, not just believe

Notification

• need official notification to prevent bogus use (chilling effect)
• already seen in the copyright arena - bogus notices from non rights holders with ulterior motive
• ISP has to take it down or risk being found liable
• if you don't get suppression - why not just send a bogus takedown notice?
• no punishment for lying

National Register might help

• ISP can go check
• who has access to this register? Obviously it must be very wide if everyone is going to be an ISP?
• interesting Scottish example - general public has access
• what if the order is lifted or varied - do they have to monitor it all the time and hide/unhide things?

Knowledge of Breach

• media can choose to publish or not
• ISPs can't make that decision - how do they know it's being published?
• DPI is unworkable - rights and technical issues
• keyword searching is also unworkable - "John Smith"
• coded or obscured material - detection can't be automated

Solution

• Delete section 216

If it remains

• official notices of details and location (ala DMCA notices)
• by analogy to interception regime
• no liability for ISPs
• cost recovery?

Question from Colin Jackson
Q. Did you just say that this could be used to force a newspaper's ISP to remove articles from their online copies?

A. Yes. But this law would say that the newspaper is an ISP. So you send it to Chorus, the ISP, the paper, etc... one of them should take it down.

Question from Stephen Price

Q. Mightn't there still be a very large unknowing public if suppression is granted?
A. Possibly. But doesn't think it will last as social media grows.

Question from David Farrar
Q. Clarifying various points.
A. Rick confirms that he doesn't want ISPs liable at all. Doesn't agree with the "safe harbour" idea where the law kindly grants immunity but is really making them liable.

Comment from Warren Young
Intention to only capture hosting ISPs, not transmitting ISPs. Believes it has achieved this and bill has both definitions, Rick agrees that this might be the case.

Judge David Harvey - A Judicial Perspective

Says he was the judge who:

• suppressed the name of Peter Lewis
• fined Cameron Slater.
• granted interim suppression to Martin Devlin

Two issues he wants to talk about

• name suppression and a fair trial
• ISP involvement

Name suppression and a fair trial

• part of a bigger context - media access to court proceedings
• not just suppression but cameras in court, access to court files, general reporting of court proceedings, tweeting in court, blogging while proceedings in progress

Cl. 214

• what about para-journalists such as bloggers, tweeters, etc.
• Does a Tweet to your friends cover publication?
• digital media - very little limit on who can contribute

Continued availability of information

• information published on the Internet doesn't die. It'll be cached or copied (wayback machine, google cache)
• and then it's searchable
• information is readily available and is fresh and clear, not a faded memory

The Googling Juror

• has problems for fair trial
• mentioned the problem of jurors not just googling for facts, but also the law
• e.g. an NZ jury getting a definition of "beyond reasonable doubt" from a US website. Where it's different.
• role for judge in educating jurors about acceptable behaviour
• have to assume that jurors will Google
• we now have an assumption that we can find things out when we want
• many of us would be happy to ignore judicial directions

Talking about the example of the Underbelly program in Australia interfering with trials over there.
Quote of "a tainted trial is better than no trial at all" from some Aussie lawyer

Possible solutions (not recommended)

• ban suppression orders - basically give up.
• Recognise that perhaps the internet is fundamentally changing the nature of the jury trial with reference to information and impartiality.

Alternative trial models

• mix of professional and lay adjudicators
• judge alone trials (already heading in that direction)
• a range of other possible options - delay, challenge for cause, move the trial venue, etc, etc

ISP involvement

• law seems to be based on section 92c of Copyright Act
• concerned about special definition of ISP and prefers "internet content host"
• believes that specific knowledge of the breach should be required to attract liability
• obviously ISP still being required to make judgement calls - he doesn't like that

Alternative scenario

• liability should only kick after people are notified they're in breach and continue

Other issues

• ISPs need standing if they are being treated as media
• but even if they remove it, it still doesn't vanish - caching, offshore, archived

Conclusion - the proposal may require further thought

Question from Hamish MacEwan
Q. It's not media access to courts we need to worry about but public access to courts.
A. Judge Harvey notes that all citizens can go into the court and that the media are the surrogates of the public

Questions from Stephen Price
Q. Why shouldn't bloggers have the right to challenge suppression orders?
A. Whole machinery of justice will grind to a halt! His inner anarchist says "Let's go! Agrees that the current bill doesn't recognise this reality that bloggers will be liable but won't have standing.

Q. To what extent might ISPs be liable as publishers under the current law?
A. Thinks that they aren't liable - they're a conduit.
Rick Shera comments that most countries worldwide don't hold ISPs liable for content.

Other questions
Q. More work with juries and testing what they know to get an "impartial" jury?
A. Here a jury can be empanelled in 20 minutes, in the US it can take up to 3 weeks.

Q. Sequestering juries as a solution to the research problem
A. We just got rid of that! Can still do it, but seen as inappropriate and a gross imposition on jurors. Also pointless if we let them have phones and so on.

Tim Pankhurst - A Media Perspective

Newspaper Publisher's Association

Declares himself to be a simple journalist, not used to the deviousness of the law.

Started with some anecdotal history

• Talking about other media people over the years who have had their names suppressed. Did they deserve to have their names published? Yes.
• Used to read the Nelson paper's wednesday summary of *every* court case from the region.
• Publishing all drink-drive convictions in an attempt to name and shame. Including his own family member. Only complaint was from a young man who wanted to know why his brother wasn't on it.

Obviously in favour of publishing names. As for celebrities - you can't just turn off publicity when it suits.

Judges and politicians making "analogue decisions in a digital age"

Public needs access to courts. Open justice is an important check on judicial fairness and competence. Talking about the damage to the reputation of the Family Court from its secrecy.

They appreciate that the media will have standing to challenge suppression.

Notes that fines have gone up - with this increased risk, surely they need a way to find out what has been suppressed. South Australia has a register.

Extreme hardship - does this just mean "A sick grandmother or an All Black connection"?

Unsure about automatic suppression in some cases such as sexual assault - issues around notifying society about what's happening and possible threats. e.g. notifying people of Graham Capill's wrongdoings.

Likes "real risk of prejudice" as a higher test for granting a suppression order, judges are often too cautious with suppression orders.

Administration of suppression is a shambles.

Very hard to recall information once it has been published.

Basically saying that there's very little point in suppressing names of well-known offenders in the digital age.

Prepared to accept increased fines if:

• Want courts to go after online people as much as they go after conventional media.
• Also need a register of suppression orders. They don't deliberately breach suppression orders.

Talking about access to register. Suggest only editors. Could be tied into official notices.

Question from Steven Bell
Q. What's the difference between commentators/bloggers and mainstream media? Shouldn't they then have similar standing in courts and access to a putative register?

A. It's a vexed question

Comment from Warren Young
Interim suppression - defendant doesn't have a lawyer, isn't ready to present evidence in favour of suppression. The Bill makes it easier to get suppression on first appearance - that only lasts until next appearance.

Response from questioner - this has led to people always asking for it, even though they know they'll never get it in the long term. The media then moves on to other topics before suppression is lifted.

David Farrar - The Blogger's View

Mentions his faux pas at R v Internet... hadn't quite cleaned up the screenshot enough and accidentally revealed a suppressed name.

We love gossip. Internet makes gossip work better.

Police v Slater confirms that the law applies to the Internet. Also shows that bloggers are being caught.

But what about TVNZ and the Singh electoral fraud case? They zoomed into a billboard until his head was framed. Why didn't the courts go after them?

The idea of nzsuppressionorders.blogspot.com - no need to register a real name or anything. Google will ignore NZ court orders. Take 10 minutes to set up and suddenly there's a go-to site for breaking all suppression orders.

Challenges for a blog owner

• finding out if there is an order?
• he blogged the Singh arrest based on a eye witness account
• how could he find out if the name was suppressed? Ended up calling a reporter and asking, who then checked with the newsroom, who confirmed that the name was suppressed.
• and what is in the order?
• tells about an inadvertent breach he made through speculation in John Dewar case
• suppressed orders lead to online speculation
• does the blog owner only delete the *correct* guesses made by blog commenters?

Makes an important point that media need advanced warning as they can't unpublish the newspaper, bloggers can edit on the fly.

What about breaches by referral? The differences between:

• link to the page on Whaleoil?
• or a link to Whaleoil front page?
• or a comment that "he's broken another one"
• or a reference to a "notorious blog"

Not always clear when a commenter has breached

• puzzles, initialisms, cunning constructions
• "An interesting name"

S202(2)

• Note that reporters are not subject to Press Council - rather the publishers are.
• What about when you're a blogger and a member of the media? (Like David is)
• Obviously if he's liable, he needs access to the same standing and so on.
• 202(2)b - Don't leave it to the court - but have a central list of "other media".

s215

• breaches of suppression orders from s205, s207, s208 (child sex crimes and so on)
• 6 months jail seems a bit much, especially with the other problems involved

s216

• thinks he is an ISP by that definition
• has had lots of people try to get material taken off his blog by falesly claiming copyright, suppression, privacy, etc.
• notifications should be from someone with a duty to tell truth (e.g. court officers) not just random people.
• needs better notification than "your blog is in breach" - at a minimum the URL of the page.

s216(4)

• is well intentioned to notify the user that something has been taken down.
• but does it work for commenters on blogs? He doesn't know who the anonymous commenters are.
• is replacing the comment with "comment deleted" adequate notice?

Summary

• Agrees with the law but thinks it will be ineffective, especially for cases of public interest
• Definition of media is far too narrow (referenced LawCom's "new media" project)
• Need a register so that people can work out
• Need to be explicit about who can notify and what constitutes notification

Question from Warren Young
Q. 202(2)b - who would compile the list of "other media"?
A. Suggests Ministry of Justice

Question from Trademe person (25k comments a day on their forums)
Q. Trademe are obviously not media, will they get access to this putative register?
A.Response - obviously they will need access. So will others, on a case by case basis.

Comment from Judge Harvey

Q. Judge Harvey suggests changing it to strict liability for people who knowingly do it. People with no access to this notional register will suffer from not knowing what is suppressed.
A. Farrar responds that he sees he has a duty to do proactive monitoring as much as he reasonably can. Making it strict liability would remove this duty.

General Discussion

Steven Bell - The idea of a register of anonymous information "case x, defendant name suppressed"

• DPF responds, tends to be less precise and not as useful.
• Warren Young says it's impractical - might be tens of cases of assault in Auckland on a monday morning.

Debbie Monahan

• Should go after the offenders, not the intermediaries

Thomas Beagle

• Asks how many people in the room think we can come up with a fair and workable scheme for suppression. About 5 or 6 of 35 people put their hands up.

Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

He has asked the Law Commission to review whether current regulations are good enough. This is the same Law Commission that believes that ISPs (Internet Service Providers) should have a responsibility to close down websites and shutdown webservers if they are hosting material that might be in breach of a suppression order.

The report will focus on whether the two existing industry bodies, the Broadcasting Standards Authority and Press Council, could be used to regulate "new media", and whether existing criminal and civil remedies and penalties are appropriate.

These is no mention in the press release of the freedom of expression guaranteed to New Zealanders in the Bill of Rights Act. Nor is there any recognition that many forms of old media such as leaflets, posters and books are also unregulated.

An issues paper is expected by December 2012.

Of concern to Tech Liberty is the following from the Cabinet Paper (PDF):

that it be an offence where an onshore internet service provider or content host becomes aware that they are hosting information that they know is in breach of a suppression order, and they fail to block access or remove it as soon as is reasonable practicable;

While on the face it this does not seem completely unreasonable, the devil is in the details:

• Defining exactly what an Internet Service Provider is turns out to be difficult - and is something that the copyright legislation has also struggled with. Does it include a library or cafe providing free internet? What about a publicly shared connection from someone's house? How about ISPs that are only providing wholesale bandwidth to other ISPs - which is responsible?
• What duties do ISPs have to police content hosted on their networks by their customers? What if the server is under the control of the customer and the ISP is only providing internet bandwidth and power?
• How will ISPs and content hosts be able to tell whether material is in breach of a suppression order or not? What if the material is only hinting at the identity - does the ISP have to decide whether it's enough to qualify as a breach and take it down?
• What does "block access or remove it" mean in practice? If ISPs have no admin access to the server hosting the website (as is common when they host other company's servers), will they be forced to take down entire websites or multi-site web-servers to remove a comment posted on a blog?

ISPs as judge/jury/executioner

We fear that this new law will be a repeat of the debacle around changes to the copyright act - trying to force ISPs into having to make complex legal decisions simply because no one else can do it.

It was wrong to make ISPs judge and punish people for breaches of copyright, it's equally wrong to make them judge and punish people for breaches of suppression orders.

Future of suppression

Ultimately, the law changes may be largely pointless once the ease of publishing information on the internet anywhere in the world is taken into account.

We look forward to seeing the final text of the bill and expect that we will be making a submission.

Judge David Harvey told the seminar that internet providers (ISPs) should be set up specifically to block suppressed information and issue "take-down" notices to those who had posted it. "Internet content can in fact be managed and controlled. It is a question ... of how far we want to go to do that."
'Alliance' needed to enforce name suppression online, Stuff.co.nz

And contrast:

Seeking to deny the protesters a chance to reassert their voice, authorities slowed Internet connections to a crawl in the capital, Tehran. For some periods on Sunday, Web access was completely shut down — a tactic that was also used before last month's demonstration.
Iran chokes off Internet on eve of student rallies, Yahoo News

There is an increasing queue of groups demanding that the Internet be filtered of various kinds of content and usage. From child pornography, to copyright violation, to speech that harms the government of the day, to matters before courts that are not visible to the public in their full detail.

The answer in all of these cases is "just filter the Internet". But those advancing such filtering fail to understand that unless you remove all Internet access from everywhere, including blocking satellite communications which already deliver Internet access to remote parts, you cannot prevent information from flowing on the Internet. There is an old saying, "The Internet sees censorship as damage and routes around it".

Routing around the damage

To understand why these suggestions of filtering the Internet are at odds with reality, it helps if we understand what the Internet is not.

The Internet is not websites. It is not chat rooms, nor is it blogs or message boards or video streams or anything that you see on your machine. Those things are nothing more than a view that is only made intelligent by the ends of the network - by your computer and by the computer at the very far end from you. Everything in the middle has no knowledge or understanding of what your packets mean, they are just packets of anonymous data, out of order and without even the assurance they will get delivered. This is called the End to End Principle, and is the core reason why the Internet has been a success, and why effective filtering it not possible.

When the very first webserver appeared, and the very first browser was used to read content from it, this event happened without anyone in the middle of the network having any idea what was taking place. The End to End Principle places all intelligence at the edges, but it also means the network is immediately adaptable to any possible use without any requirement for your ISP, the exchange where  your ISP connects with others, the hubs in other countries, and so forth to know anything at all about your use.

Today, there are a number of methods used to exchange useful information on the Internet, but these are all just packets.

The polymorphic network

If I created a new and interesting way to communicate with others, then I can deploy that to the Internet without anyone's permission, without requiring approval from a government or a technical body. I can simply write some code, deploy my code amongst people I know, and it will work without anyone else being aware of it.

Because I can make up any way of communicating I dream of, effective filtering the Internet is not possible. I can employ a wide variety of techniques and protection to my communications which cannot be stopped. Even if you try to limit Internet access to "approved" uses, I can use those uses to create secret embedded channels that you will never find.

This has been used to great effect in other countries to defeat attempts to limit access. Countries such as Iran and China have attempted to limit Internet access to approved means, and yet information still gets in and out via the Internet. Even if we were to give up all the freedoms we have to implement their solutions, it still wouldn't work.

In simple ways, I can use encryption to prevent what I am accessing being visible to others. Accessing your bank's website, for example, already involves using encrypted access so the presence of it would not be unusual by any means. But let's say that we don't allow encrypted access to websites without being inspected, I can just deploy encryption within normal-looking access. Or I can re-encode my access so that appears as gibberish, but otherwise possibly valid english text. Or any one of a number of ways that would defeat any manner of filtering put in place.

So long as any data is allowed at all between two points, it can be used for any purpose. Filtering is then an arms race between those who wish to suppress content and those who want it to be distributed and available.

All or nothing

In short, the openness of the Internet guarantees that no regime, no government, no company, no-one can stop information from moving around the Internet, unless you turn off the Internet entirely.

The horse has not merely bolted, it is well gone. The question now is not how to filter the Internet, but how to work in an environment that has instantaneous and ubiquitous communications accessible to everyone, everywhere, and without any useful means of control.

In the past, we have traded free speech for privacy and the right to a fair trial. But is this trade-off actually possible any more? We have developed communications far beyond the limits of our village, our town, our country, past the point where we can choose between freedom of speech, and other rights. Filtering the Internet to maintain this illusion is not possible. People will always find a way to communicate what they want to say.