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What’s wrong with the Communications (New Media) Bill and can it be fixed?

Posted on September 2, 2012

The Law Commission's proposed Communications (New Media) Bill (PDF) is the result of their report on Harmful Digital Communications. They are proposing:

  • The creation of a new criminal offence that targets digital communications which are "grossly offensive or of an indecent, obscene or menacing character and which cause harm". Harm is said to include physical fear, humiliation, mental and emotional distress.
  • The establishment of an Agency (i.e. Netsafe) that will be able to assist and advise people suffering from unpleasant digital communications.
  • 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."
  • 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.

While sympathetic to the aims, we have some serious questions about the law and the thinking that lies behind it. This article discusses some of the problems that we see, talks about ways to resolve them and asks whether the problems are too great for some parts to be worth pursuing. We have arranged our arguments thematically and finish with our conclusions and recommendations.

Powers of the proposed Communications Tribunal

Posted on August 20, 2012

The Law Commission has proposed the creation of a Communications Tribunal that will be able to respond to complaints about internet speech and provide "speedy, efficient and cheap access to remedies such as takeown orders and cease & desist notices." The Tribunal would be made up of one of a number of selected District Court judges, with the optional assistance of a technical expert where required.

We were curious to see how what powers the proposed Bill would give the Communications Tribunal and how that would compare to the other tribunals mentioned in the report.

A future article will discuss the types of complaints that the Tribunal will deal with and the principles they are to use when doing so.

What powers would this Communications Tribunal have?

Once a complaint has been made and accepted by the Tribunal, they have certain investigatory powers:

  • require any person to provide any document, information or things
  • require any person (including the defendant) to give evidence.

Once the Tribunal has made the decision ("...with as little formality and technicality, and as speedily as is permitted...") it can order one or more of the following:

  • remove any material from any online media
  • forbid anyone from republishing or encouraging others to republish the same or similar material
  • demand a correction, an apology or the right of reply
  • publicly identify the author of a particular communication.

If the demand to produce/give evidence or any of these orders are disobeyed it would be punishable by up to 3 months jail and/or a $5000 fine.

Compared to other tribunals

In the Ministerial Briefing, they compare the Communications Tribunal to other tribunals such as the Tenancy Tribunal, Human Rights Review Tribunal and the Disputes Tribunal.

Firstly, we note that there is a major difference between the Tenancy and Dispute Tribunals (where the tribunal is arbitrating an existing agreement between two parties) and the Communications and Human Rights Review Tribunals where there is no pre-existing agreement between the people involved. This means that we think the Human Rights Review Tribunal is a better subject for comparison.

Secondly, disobeying any orders from the other tribunals does not result in a jail sentence but rather fines of between $1500 and $5000. The ability to back its decisions with a threatened 3 month jail sentence is is a major difference in the powers of the Communications Tribunal.

Thirdly, the laws for the other tribunals are much more detailed as to how they are to perform their work. There are procedures, clarifications of who can appear and when, oath-taking, rights of appearance and notification, etc, etc. The proposed Bill is either unfinished or the Law Commission really does seem to want hearings to be a quick and dirty affair, something that may not be appropriate when talking about issues that have important Bill of Rights implications.

Fourthly, the other tribunals do have some powers to order evidence and testimony - but legally privileged information is protected and the Human Rights Review Tribunal is subject to the Evidence Act.

Is there any defence/appeal?

There is no requirement for the defendant to be heard or to have a chance to put their case forward. (Lawyer John Edwards counters this by saying that the Tribunal's requirement to comply with the principles of natural justice would require that affected parties be given an opportunity to be heard.)

The complainant can appeal a decision to an Appeal Tribunal (made up of two District Court judges).

The defendant has no opportunity to appeal any decision, nor do other possible targets of an order (the ISP, webhost or 'any other person').

Conclusion

The Communications Tribunal would have very broad powers over internet content. Breaching one of their orders will result in a serious fine of up to $5000 or jail time of up to three months. This contrasts with the report stating that it would be "protective, rather than punitive" and would "not have powers to impose criminal sanctions". If you refuse to follow the orders (possibly because you believe they are unfair, breach your freedom of expression, or because it's technically impossible) you'll find that punitive criminal sanctions quickly follow.

The Law Commission repeatedly mentions that the Tribunal should be "speedy" and "efficient" with "little formality". The proposed Bill is very light on detail when it comes to the nitty gritty of running a Tribunal - presumably with the thought that this would just slow them down. They seem to be of the view that the Tribunal must react in "internet time" without quite realising that a result in days or even hours probably won't be good enough to avoid harm to the complainant.

The cases coming before the Tribunal are not always going to be easy, with internet flamewars and inter-clique battles typically leading to bad behaviour from all of the parties that will need to be unpicked properly to make a fair decision.

This lack of process and protection for the rights of the defendant to a fair hearing (including the right to silence) will surely lead to bad decisions that fail to take into account the principles of natural justice.

Moreover, the Tribunal is dealing with a very serious matter, the right to freedom of expression as guaranteed by the NZ Bill of Rights. This is not some petty dispute over who pays for the repairs to a car or whether the oven was cleaned properly on vacating a flat. The level of formality and respect to the rights of the participants is very different between the Communications Tribunal and the more directly comparable Human Rights Review Tribunal.

We believe that, even before you consider the grounds for complaining to the Communications Tribunal and the principles it will follow to make decisions, there are some serious problems with the Tribunal as conceived by the Law Commission. The proposed remedies are too expansive, the penalties for disobeying too harsh and the unseemly haste that will go into making a decision is not appropriate.


This post has been corrected on 22/8/2012 to clarify that only the complainant, not the defendant, can appeal an order of the Tribunal.

Te Papa doesn’t know why it’s censoring the internet

Posted on April 30, 2012

We recently received a complaint from a German tourist saying that when he tried to access a couple of innocuous German political sites using the free wireless at Te Papa, a page was displayed saying that his access to those sites was blocked. Te Papa had implemented internet filtering software to control what websites people could access.

The tourist complained to Te Papa. They initially tried to fob him off, but eventually he got through to someone and those sites were removed from the filter. A good outcome, right?

Not So Simple

This incident raises a number of questions:

  • Why is Te Papa filtering what people see on the internet?
  • What type of content is being blocked?
  • Who chooses which types of content to block?
  • Finally, why are they using software that flags a German political website as "Pornography (Japanese)"?
Page showing that a German political website has been blocked because it contains pornography (Japanese).

Click on the image to see it fullsize.

Why censor internet access?

We spoke to Te Papa but they couldn't tell us why they felt the need to censor their wireless. They did know that they blocked file sharing protocols to reduce internet traffic but couldn't tell us why they were blocking some websites. We'd understand if Te Papa wanted to use some censorware on internet terminals available to children, but their filter goes far beyond that.

Are they worried that people will somehow download banned material? It's not their responsibility and it's not like they're monitoring phone calls to make sure people don't have illegal conversations.

Are they worried that people will browse offensive material (pictures/video) in a public place and annoy others? An increasing number of their guests have smartphones and "bring their own internet" and someone could as easily watch a porn DVD on a portable player. In any of these cases, it would be a simple matter of asking them to stop.

We reject the idea that internet providers (for that is what Te Papa is doing by providing free wireless) are in any way responsible for what an internet user does with that connection, in the same way that they aren't responsible if someone uses Te Papa provided water or electricity.

Te Papa's Filter

Te Papa could tell us that they are using internet filtering supplied by their internet service provider, Telstra Clear, but they had very little idea about how it works.

  • They don't know why they're blocking some types of content.
  • They don't know what type of content is being blocked.
  • They don't know who decides what to block and what criteria they use.
  • They don't really want to find out, saying that they're "happy for them [Telstra Clear] to make the decisions".

Any museum and art gallery is surely aware of issues around censorship and free speech, Te Papa itself has been involved in certain controversies about what should be shown and to who. Why has Te Papa chosen to censor the internet with so little thought about why and how? As our visiting tourist put it:

Seeing this happen at Te Papa, a flagship of the capital, tells me something about democracy and the importance of free speech and human rights in NZ.

Our view

We tend to side with the visiting German tourist - it's inappropriate for a place like Te Papa to be censoring the internet.

We suggest that worries about people accessing "bad material" over public internet are overstated. Any inappropriate behaviour (e.g. viewing internet pornography in a public place) can be solved by asking them to stop.

If an organisation decides to press on with censorship anyway, it would seem at a minimum that they should:

  • Be able to tell people what sort of material is blocked and why they're doing it.
  • Have a process for deciding what to block.
  • Provide an easy way to appeal any incorrect blocking.
  • Not use software that is as badly written as that used by Te Papa and TelstraClear.

Of course, once you look at all that, doesn't it just seem easier to let people have unconstrained internet access in the first place?

Guest post: The operation of NZ’s internet censorship filter

Posted on April 11, 2012

The following is a guest post from Matt Taylor about the operation of the government's internet censorship in New Zealand.

Survey shows opposition to mandatory govt internet filter

Posted on April 4, 2012

InternetNZ has commissioned a survey of the public's thoughts about the government's internet filter. Some of the interesting results include:

  • Very few people (only 9%) knew whether their ISP used the government filter. The ISPs using the filter represent more than 90% of the NZ internet market.
  • Less than a quarter (23%) wanted the government choosing whether to filter their internet connection.
  • Two-thirds want the filter to include other, non-specified, content.

Tech Liberty's Comment

We've always been opposed to the government's internet censorship system but support the right of people to choose filtering for themselves or their families. We're pleased to see that the people of New Zealand agree with us, rejecting the idea of letting the government impose centralised censorship.

Unfortunately we already have such a system. While it is voluntary at the ISP level, their users get no say in the matter and this survey shows that most are unaware that they are covered by it. We also note that with Telecom, Vodafone and 2 Degrees all having implemented the filter there are no major providers of censorship free mobile data in New Zealand, further undermining any voluntary aspect to the current filter.

At the same time it also seems obvious that the internet has a lot of disturbing content that you might want to block other than just child pornography. Therefore it makes sense that someone wanting "cleaner internet" at their home would be looking for a more general purpose filter than the government's one. A number of ISPs do offer such a service (either free or as an add-on) and it seems that they should be promoting this further.

In conclusion, it seems that the survey shows that the current government internet filter is implemented the wrong way for the wrong purpose and by the wrong people.

MegaUpload arrests in New Zealand

Posted on January 20, 2012

NZ police have arrested four people connected with MegaUpload.com in New Zealand today at the request of the US FBI. They have been charged in the US "with running an international organized criminal enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works through Megaupload.com and other related sites". (FBI press release.)

Comment

We have little faith in the fairness and appropriateness of the US's laws and processes around copyright and intellectual property. The US government is continually strengthening its copyright laws at the behest of the entertainment industry (see SOPA and PIPA) and is trying to pass laws that we would not like to see copied in NZ.

Will this NZ police cooperation lead to New Zealanders being arrested and handed over to the US for doing things that may not be serious offences in New Zealand? Which other countries' laws do New Zealanders have to obey when using the internet?

Whether this case is an example of good international cooperation or the US demanding other countries help enforce bad law is yet to be determined. We will be monitoring this issue closely and hope to publish more information as it is available.

Media Links

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Requirements for valid copyright infringement notices

Posted on January 10, 2012

Recently we examined some of the first copyright infringement notices sent by Orcon and noticed that they did not comply with the regulations.

The omissions are significant and make it harder for the accounts holder to challenge the notice on the facts, but we believe there are excellent grounds for challenging the notice because the notice itself is invalid. The rights holders may or may not accept this but ultimately it will be up to the Copyright Tribunal to make the final decision.

Notice Requirements

So, what are the requirements for a valid infringement notice? They're spelt out in two places - the Copyright Act (mainly section 122) and the associated Copyright (Infringing File Sharing) Regulations. We'll only be looking at the requirements for the notices from the ISP (internet service provider) to the account holder (the person paying for the internet connection).

A detection notice must include:

Are some Copyright Infringement notices invalid?

Posted on January 6, 2012

One of the outstanding issues of the changes to the Copyright Act has been whether rights holders would issue notices that comply with the law. Since our regulations outline a number of detailed requirements for notices, rights holders cannot simply pass on whatever they send in other countries.

The first few issued notices are starting to leak out and it appears that they do not comply.

An Orcon user posted to the 3strikes forum copies of the notices they received. Comparing the information provided on those notices to the law and regulations, we noted the following problems:

  • There is no description of the type of work as per 14(1) of the Copyright Act. (Regulations 4(2)c(iii).)
  • The nature of the breach (as described by 15(1) of the Copyright Act) is not specified. (Regulations 4(2)c(iv).) The notice only says a breach has taken place, not the nature of it.
  • The date and time given on the first notice is not specified to the second. (Regulations, 4(2)c(v).)
  • The file sharing application or network is not specified. (Regulations, 4(2)c(vi).)
  • The notice number does not include information that identifies the type of notice or the IPAP that sent it. (Regulations 5(2)(b) & (c).)

These details matter because the account holder needs to understand what they are accused of so that they can properly defend themselves.

Account suspension

We are also deeply concerned that the notice makes the claim that your Internet connection can be suspended by the District Court for up to six months. This part of the law has not yet been activated, and it is alarming that notices are already misleading users on possible penalties. Orcon should not be making such claims.

Concluding questions

The notices as posted do not comply with the requirements of the law and regulations.

Does this mean that they are invalid and can be challenged (or ignored) as such?

Will the Copyright Tribunal accept them as valid or not?

Does this mean that all notices sent through Orcon are invalid?

Kiwicon – The government is your friend

Posted on November 7, 2011

The government is your friend and wants you to be happy.

This is the transcript of a speech given by Thomas Beagle at Kiwicon in Wellington on November 6th, 2011.

Interview – Cyberdodge VPN service

Posted on October 26, 2011

An interview with Ross from Cyberdodge, a supplier of VPN services that enables internet users to hide what they do on the internet.

What inspired you to offer the service?

People will always choose the easiest way to get the latest movies and TV shows and downloading off the internet is it. Unfortunately options are now limited to VPN tunnels not only for p2p but also for using an American IP address to get access to TV sites like www.hulu.com.

Are you getting many customers and what do they want it for?

Yes I am. VPN tunnels have a number of uses that include getting an American IP address to watch tv sites such as hulu.com, encrypt internet traffic when they are using a public WiFi point and of course hiding their real IP address.

How do you feel about the fact that some of your customers will probably be using your service to break NZ law?

No Comment.

What sort of information do you keep about your customers?

We only keep the email address.

What sort of information do you keep about your customers connections? (Such as when they connect, how long they connect for, anything they do through the service.)

We do not log what the user does or transfers over our network but we do log the time of connection and disconnection. We use this data to strategically deploy network resources. We also log the country the user is logging in from, this helps us to detect hijacked accounts and abuse. We do not log IP addresses.

Do you think your business has an obligation under the Telecommunications (Interception Capability) Act to allow the NZ police or other enforcement agencies to monitor traffic?

No, I am not a network operator. A network operator means a person who owns, controls, or operates a public telecommunications network or a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service. CyberDodge does not provide anyone else with the capability to provide a service and CyberDodge is not a public telecommunications network. Public telecommunications network means a public switched telephone network and a public data network. CyberDodge is not a public switched telephone network nor a public data network. A public data network means a data network used, or intended for use, in whole or in part, by the public and includes, without limitation, the following facilities: Internet access and email access. CyberDodge requires that you have internet and email access already. This law applies to ISPs, which CyberDodge is not.

Do you think your business has an obligation under the Copyright (Infringing File Sharing) Act to store customer IP addresses so that you can pass on notices?

No, I am not a IPAP. IPAP, or Internet protocol address provider, means a person that operates a business that, other than as an incidental feature of its main business activities, offers the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing and allocates IP addresses to its account holders and charges its account holders for its services and is not primarily operated to cater for transient users. CyberDodge does not offer the transmission nor providing of connections for digital online communications. CyberDodge only routes digital online communications. This law applies to ISPs and CyberDodge is not a ISP.