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Government to turn ISPs into censors

Posted on October 5, 2010

The Government is to tighten up the rules around court-ordered name suppression. The proposed changes are in response to the Law Commission's report recommending that the rules around suppression need to be clarified and that suppression should be harder to get.

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.


See also Rick Shera's blog post.

Law Commission to Review Official Information Act

Posted on December 10, 2009

The Law Commission is continuing its run of reviewing significant laws (Search and Surveillance Bill, Suppression of Evidence report). This time it's the turn of the Official Information Act 1982. Their work is at a very early stage - they're canvassing views in an attempt to come up with an issues paper to guide further discussion.

Law Commission Clarifies Position

Posted on December 4, 2009

In our recent article, Law Commission Demands ISPs Filter the Internet, we wrote that the Law Commission's report Suppressing Names and Evidence required internet service providers (ISPs) to be able to block access to information hosted on overseas websites.

At the R v Internet seminar in Wellington, Warren Young, Deputy Head of the Law Commission, stated that this was not their intention (while admitting it was badly worded). Rather they only intended for local ISPs to have to take down locally hosted information. While this is somewhat of a relief as it means that we can avoid the necessity of implementing a China-style Internet censorship system, there are still a number of problems with this position.

  1. It puts the burden on ISPs to remove material when the onus should be on the people who have published the material (i.e. the individual blogger or the site that allowed the comment in their forum). Putting the liability on the ISP is like blaming the local dairy owner for the content of the newspapers they sell.
  2. Many websites that are popular in New Zealand, such as Facebook and Twitter, are not hosted in New Zealand. While it might be possible to make requests to the individuals discussing suppressed information (and even act against them if they are in NZ and can be identified), this is going to be as successful as King Canute was at stopping the tide.
  3. While 'responsible' bloggers and media companies may take down material suppressed by the NZ courts, this just means that anyone searching for information will find the myriad of 'irresponsible' sources who probably don't even realise they're in contempt of court.

R vs Internet – First Session

Posted on December 3, 2009

I'm at the R v Internet seminar in Wellington today. As some of the issues discussed are quite important in terms of Tech Liberty (right to a fair trial, Internet censorship, freedom of speech) I'll be giving a brief write-up of the event.

The Old Guard

So far we have heard from the Attorney General Chris Finlayson, Law Professor Tony Smith from VUW and the Solicitor General, David Collins.

Law Commission Demands ISPs Filter the Internet

Posted on November 16, 2009

Updated: see our update to this post.

Sometimes it seems that every day there is another threat to people's abilities to use the Internet. Each special interest group has their own barrow to push, often with honourable intent, that causes them to make impossible or unreasonable demands.

Today's effort is from the Law Commission. They've published their Suppressing Names and Evidence report and it includes the following (recommendation 26 from the report, page 66, PDF):

Where an internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.