As part of our ongoing look at elements of the Harmful Digital Communications Bill (general critique and safe harbours), we now turn to the new offence of causing harm by posting digital communication (section 19). This is a criminal offence and is not related to the rest of the bill with its 10 principles, Approved Agency and quick-fire District Court remedies. It's quite simple:
(1) A person commits an offence if:
- the person posts a digital communication with the intention that it cause harm to a victim; and
- posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
- posting the communication causes harm to the victim.
"harm" is defined in the interpretation section as "serious emotional distress".
Unfortunately this new offence is actually very wide and may well capture many communications that are of immense value to society - or at least shouldn't be made illegal.
Let's consider the case where someone takes a photo of a politician receiving a bribe and, shocked at their corruption, posts that photo to the internet. This communication would:
- be posted with the intention of harming the victim (the prospect of facing criminal charges or being obliged to resign could be assumed to cause the victim distress).
- would cause harm to any reasonable person in the position of the victim (any reasonable person would not like having evidence of their criminal corruption exposed to the world).
- could be easily proved to have caused harm (serious emotional distress) to the victim.
The penalty? Up to 3 months in jail or a fine not exceeding $2000.
In section 19(2) the judge gets some guidelines about how to assess whether the communication causes harm, but nowhere is there the idea that some communications that cause harm might actually have some societal value or would otherwise come under freedom of expression. There are no available defences such as that the communication may be in the public interest, counts as fair comment, or exposes criminal wrongdoing.
And just in case you thought that whether the communication is true or not should matter, section 19(4)(a) clarifies that "...or otherwise communicates by means of a digital communication any information, whether truthful or untruthful, about the victim;"
This is obviously a terrible law and will have a detrimental effect on freedom of expression and public discourse in New Zealand. How will our journalists and citizen journalists be able to expose wrong doing when broadcasting it on electronic media such as the internet, radio or TV is a criminal act if it hurts the wrong-doer's feelings?
This law wouldn't be acceptable if it applied to speech in a newspaper, it's not acceptable online.
Section 19 isn't complete worthless - it also criminalises the communication of "intimate visual recordings" in an attempt to harm someone. This seems worth keeping but the parts of section 19 concerning speech need to be either removed or significantly modified to protect freedom of expression.
The safe harbour provisions in the Harmful Digital Communications Bill are a serious threat to online freedom of speech in New Zealand.
How it works
Anyone can complain to an online content host (someone who has control over a website) that some material submitted by an external user on their site is unlawful, harmful or otherwise objectionable. The online content host must then make a choice:
- Remove the content and thereby qualify for immunity from civil or criminal action.
- Leave the content up and be exposed to civil or criminal liability.
The content host has to make its own determination about whether a piece of given content is unlawful (which may be very difficult when it comes to subjective issues such as defamation and impossible to determine when it concerns legal suppression), harmful or "otherwise objectionable".
Furthermore, there is:
- No oversight of the process from any judicial or other agency.
- No requirement for the content host to tell the person who originally posted the content that it has been deleted.
- No provision for any appeal by the content host or the person who originally posted the material.
- No penalty for people making false or unreasonable claims.
We can safely assume that most content hosts will tend to play it safe, especially if they're large corporates with risk-averse legal teams, and will take down material when requested. They have nothing to gain and plenty to lose by leaving complained about material online.
Serious ramifications for freedom of speech
Don't like what someone has said about you online? Send in a complaint and wait for it to be taken down.
This applies to comments on blogs, forums on auction sites, user-supplied content on news media sites, etc, etc. These are exactly the places where a lot of important speech occurs including discussions about politics and the issues of the day. The debates can often be heated, and some sites are well known for encouraging intemperate speech, but these discussions are becoming and increasingly important part of our national discourse.
This law will make it too easy for someone to stop arguing and start making complaints, thereby suppressing the freedom of expression of those they disagree with.
The jurisdiction problem
Of course, this will only apply to websites that are controlled by people who have a legal presence in New Zealand. Overseas websites will continue to maintain their own rules and ignore New Zealand law and standards of online behaviour.
As currently written, these safe harbour provisions are just a bad idea. They're too open to abuse and we believe they're more likely to be used to suppress acceptable speech than to eliminate harmful or "otherwise objectionable" speech. As a very minimum, the complaint should have to be approved by the Approved Agency referred to in the other parts of the Bill.
That said, the whole idea of removing "otherwise objectionable" speech is also quite worrying. The Harmful Digital Communications Bill already has an expansive set of rules about what sort of harmful speech shouldn't be allowed online and this "otherwise objectionable" seems to extend it even further. One of the principles we stand up for here is that civil liberties such as freedom of expression are as important online as they are offline, and this law goes far beyond anything in the offline world.
We hope to have more comment and analysis on other aspects of the Harmful Digital Communications Bill soon.
Text of our oral submission to the Intelligence and Security Committee concerning the GCSB Bill.
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.
Full text of the Tech Liberty submission to the Intelligence & Security Committee concerning the Government Communications Security Bureau and Related Legislation Amendment Bill.
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.
The government has announced two new Bills for reforming the GCSB and expanding their powers. The first is the GCSB and Related Legislation Amendment Bill (PDF) and the second is the Telecommunications (Interception Capability and Security) Bill (PDF).
This article is a summary of the major parts of the TICS Bill.
The TICS Bill is a replacement for the Telecommunications (Interception Capability) Act 2004. This law forced communications providers (ISPs, telcos, data networks, etc) to provide "lawful intercept" capabilities so that the Police, SIS and GCSB could access communications once they had a suitable warrant. The new bill expands and clarifies these requirements.
However, the addition of the word "security" is the key to what has changed. The new bill now gives the GCSB sweeping powers of oversight and control over the design, deployment and operation of all data and telecommunications networks run by network providers in New Zealand. The stated reasons are to both protect New Zealand's infrastructure and to ensure that surveillance agencies can spy on traffic when required. As part of this, the GCSB will have the power to stop network providers from reselling overseas services that do not provide these capabilities.
Summary of major elements of the TICS Bill
From the Bill:
A network operator must ensure that every public telecommunications network that the operator owns, controls, or operates, and every telecommunications service that the operator provides in New Zealand, has full interception capability.
Note that the surveillance agencies still need to have a legally issued warrant (under the Search & Surveillance Act, NZ SIS Act, or GCSB Act) to actually intercept any communications and there are obligations to avoid capturing communications that are not covered by the warrant.
The new Bill splits communications providers into multiple classes, with small, wholesale and infrastructure providers having reduced obligations. Providers must either have a full intercept capability, to be "intercept ready", or to be "intercept accessible". Membership of these classes can be varied by direction of the Minister.
The Bill specifies that the law applies to companies whether based in New Zealand or overseas. It then goes on to give the Minister the power to ban the resale of an off-shore telecommunications service in New Zealand if it does not provide interception capabilities. This could stop the resale of foreign-hosted VPNs, instant message services, email, etc.
Finally, there is more detail about how intercepted data should be formatted and delivered (apparently this has caused problems under the existing law).
Encryption and decryption
Network operators must decrypt the intercepted communications if they have provided the encryption, but there is no obligation to do so if the encryption is provided by others.
What does this mean for providers such as Mega (file locker) or LastPass (password storage) who have a business model based on the fact that they supply a cloud product that uses encryption but have deliberately designed it so that they can not decrypt the files themselves? This gives users the assurance that they can trust them with their data. Will the government close them down unless they provide a backdoor into the system?
There is a major new role for the GCSB in overseeing the design and operation of commercially available data and voice communications networks.
The Bill says that network providers and the GCSB are to work co-operatively and collaboratively on identifying and addressing network risks. If they fail to cooperate sufficiently, the law provides for penalties of up to $500,000 with an additional $50,000 per day.
Network operators must notify the GCSB of any proposed decision, course of action or changes made by them in regards to purchases, network changes or ownership/control of the "specified security interest". This includes their network operations centre (NOC), lawful intercept equipment, customer databases, databases of user accounts, and "any place where data aggregates in large volumes".
The GCSB can also demand any other information about the security and interception capabilities of the network including copies of contracts, specifications, and so on. That the information is commercially sensitive or held in confidence is not a defense.
All network operators will have to register themselves with the government. The register will be administered by the Police and available to the Police, SIS and GCSB.
The register will include the numbers of customers, names of responsible contact people within the organisation, the regions they operate in and the types of services they provide. Providers of infrastructure services (e.g. companies that provide fibre links but not the equipment for communicating over those links) will also have to give the names of their customers to the register. There are penalties for non-compliance.
The government can insist that communications providers must obtain secret-level security clearances for some of their staff. It does not say what will happen if none of the technical staff qualify for a security clearance.
Liability and protecting classified information
People who do any act in good faith under the new law will be protected from subsequent prosecution or lawsuits. i.e. the new law is superior to other NZ laws or existing contracts.
There is also a provision that allows the courts to receive classified information in a court case in the absence of the defendant or the defendant's lawyer. This applies to information that might reveal details of the interception methods used by the surveillance agency or is about particular operations in relation to any of the functions of the surveillance agency, or is provided as secret information from the surveillance agencies of another country. It can also be used if that disclosure would prejudice security of NZ, prejudice the maintenance of law, or endanger the safety of any person. The judge in the case can appoint someone with an appropriate security clearance to represent the interests of the defendant for these parts of the trial.
Analysis and comment
The new TICS Bill is a major expansion of government power over the internet and other communications networks in New Zealand. While the existing TICA Act already mandated the provision of lawful intercept capabilities, handing over final control of network design and operation to the GCSB in the name of "security" seems incredibly wide and open ended.
Adding an additional level of government bureaucracy to the design and operation of these systems would appear to be a fairly significant hindrance to the ability of network operators to run their businesses.
There also must be concern about the GCSB being able to ban the resale of any services that do not provide lawful intercept capability. This means that New Zealanders will be prevented from protecting their communications from the New Zealand government - but equally they will be prevented from protecting their communications from foreign governments too. (We can safely assume that a foreign service that gives access to the NZ govt will also provide it to others.) These rules could wipe out businesses such as file lockers and password stores that rely on providing secure storage to their users.
One must ask where the justification for this expansion of power is coming from. Has New Zealand already been materially affected by attacks on our communications infrastructure? It seems clear that while the GCSB may not be that competent at exercising the powers they already have, they have done a fine job of convincing the government that they can handle a lot more.
There are many other parts of concern and there will need to be more analysis of the interception capabilities in conjunction with the new GCSB bill. One that does stick out as particularly offensive to civil liberties are the provisions for convicting people based on secret evidence. How can you defend yourself fairly when you can't even find out the evidence presented against you?
We will be doing further work on analysing this bill and would welcome contributions, particularly from those within the industry who already have experience working with TICA requirements.
Please send any updates or other useful links and we'll incorporate them. Last updated: 10/9/2012.
- What's wrong with the Communications (New Media) Bill and can it be fixed?
- Law Commission - Harmful Digital Communications
- Powers of the Proposed Communications Tribunal
Lawyer Steven Price
Lawyer John Edwards
Stephen Bell at Computerworld
Mike O'Donnell from Trademe at Stuff
David Farrar at Kiwiblog
Chris Barton at NZ Herald
Richard Boock at Stuff
- Negotiation is the new black - the "Approved Agency"
- Trolls provide motivation for greater regulation
- Workshops on the Communications Bill are worth attending
Police Minister Judith Collins
The Law Commission has released Harmful Digital Communications (PDF) - the rushed report into the "adequacy of current sanctions and remedies". According to the summary they are proposing:
- The creation of a new criminal offence that targets digital communications which are "grossly offensive or of an indence, obscene or menacing character and which cause harm". Harm is said to include physical fear, humiliation, mental and emotional distress.
- The establishment of a Communications Tribunal that will be able to respond to complaints and provide "speedy, efficient and cheap access to remedies such as takeown orders and cease & desist notices." It is also envisioned that Netsafe would take a larger role in being a first port of call for people seeking help.
- Amendments to the Harassment Act, Human Rights Act, Privacy Act and Crimes Act to ensure that the provisions of these laws can be applied to digital communications.
- New requirements for NZ schools to work harder at stopping bullying of all kinds.
The last two of these seem innocuous so our response will concentrate on the first two.
New "digital communications" offence
While it is undoubtedly true that the internet has allowed people to be nasty to each other on a wider scale than before, we are still not convinced that new laws are needed.
This is especially true when the Commission believes that the law should forbid offensive speech that has only got as far as causing someone "significant emotional distress", a rather low bar when adolescents or other excitable people are involved. (The Commission acknowledges that this goes beyond the current bounds of NZ criminal and civil law.)
We are also concerned when it is proposed to make something illegal on the internet that wouldn't be illegal if it was published in some other way. Does it really make sense that the same message might be legal on a billboard in the middle of Auckland but illegal if it was then posted to the Trademe Forums? As we say in our founding principles, "We believe that our civil liberties don't just disappear when using the internet."
It seems like that the new law will mainly be used as just another threat/weapon by people already engaged in internet battles.
All in all, we view this proposed new law with suspicion and fear that it will limit freedom of expression and cause more problems than it solves.
Establishment of a Communications Tribunal
It is always a concern when a new body with the power to censor is created, epecially when it is envisioned that it should be "speedy, efficient and cheap". When you realise that it's going to be tasked with censoring communications on the global internet, you have to wonder just what they were thinking.
Even reading the summary paper you get the feeling that the Law Commission doesn't think the Communications Tribunal is going to do much good, citing problems with identifying people and establishing jurisdiction overseas. Obviously it's only really going to have jurisdiction in New Zealand and this is just going to drive people's nastiness offshore.
Furthermore, the Tribunal will consist of one of a number of selected District Court judges, and they're going to have the power to order ISPs and web administrators to take down content. This can be significantly more difficult than it sounds and seems like a significant threat to freedom of expression, especially in those cases where the original author cannot be found therefore cannot defend themselves.
The Communications Tribunal seems to be a "at least we tried" measure, doomed to failure in all but a very narrow range of cases. We question whether it is worth doing at all.
We look forward to reading the full report and the proposed legislation and giving a fuller response when this is available.