When the internet filter was announced, one of our primary objections was that it was a secret censorship scheme. The list of banned sites was kept secret and there was no oversight of the entries on the list. As the experience of Australia and the UK has shown, this tends to lead to abuse as sites are blocked for no good reason. It also conflicts with the general thrust of the rest of NZ's censorship regime in which all decisions must be published.
Being believers in open and accountable government, we made a request under the Official Information Act for a copy of the filtering list and the inspector's reports that were used to justify adding sites to the list.
The Department of Internal Affairs refused our request for a copy of the list:
The release of the filtering list (particularly in an electronic format) would facilitate access to images of child sexual abuse images. I am therefore withholding this information in terms of section 6(c) of the Official Information Act (where the release of this information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial).
We appealed this decision to the Office of the Ombudsmen.
Open government isn't fast
As an aside, we were disappointed by the speed of response from the Ombudsmen. Our original letter was sent to them on the 22nd of May, 2009. Correspondence has been exchanged and the final decision was sent to us on the 17th of February, 2010, nearly nine months after the original complaint.
Meanwhile, changes to the administration of the filter
While the appeal process was grinding on, pressure from us and other people have led the DIA to make some changes in how the internet filter will be administered.
Firstly, they have established a Code of Practice that explains how the filter will be run.
Secondly, the Code of Practice specifies the creation of an Independent Reference Group to oversee the operation of the filter. (For now we'll ignore the fact that the "Independent" Reference Group includes the manager of the unit that is implementing the filter.)
Thirdly, after further submissions the DIA revamped the Code of Practice so that the Independent Reference Group would be able to see the list of sites that are being added to the filter. While this is not as open as the rest of our censorship system, it is an important concession by the DIA as it means that there will be some external oversight of the list. This will provide an important check on the possibility that the scope of the filter will secretly expand.
The Ombudsman's Decision
I have formed the opinion that it was open to the Department to refuse your request, on the basis that release of the list would be likely to prejudice the maintenance of the law.
I appreciate your points that very few people would deliberately choose to access the websites, and that there may be other means for members of the public to test the content of the websites without accessing them. However, the fact remains that there are some people who, for whatever reason, may choose to visit the websites if the list was available. If even one person were to use the list as a reference point to access the websites, that could be a breach of the law.
Limited data set
In follow-up requests to both the DIA and the Ombudsman we also asked for the filtering list and reports with the DNS part of the URL removed (i.e. the sitename.com part of http://sitename.com/location/data). This would mean that there would be no way to use this information to actually visit the site. While this wouldn't allow us to do as many technical tests, it would still be interesting to read the reports.
The decision from the Ombudsman makes it clear that the only reason for refusal is that the full address would allow people to visit the site. We see no grounds for the DIA to refuse a request for just the reports and will be asking for that soon.
We accept that society has the right to implement censorship but we think that this should be limited, open and accountable. We are disappointed to not get access to the list and find it worrying that New Zealand is implementing a secret censorship scheme.
The lack of access to the list also means that we cannot do our planned testing and analysis of the sites on it (note: technical tests at the network level with no chance of accidentally downloading disturbing or potentially illegal images).
However, while the Ombudsman's refusal is a setback in establishing openness, we are pleased that the DIA has been forced into allowing some independent oversight of the filtering list and the administration of the filtering system. This does go some way to ameliorating our concerns about secret abuse of the filter, although the other problems with it still remain (that it doesn't work, that it reduces the security and stability of the NZ internet, that it gives government a tool that they will abuse in future).