The attempt to make ISPs (Internet Service Providers) criminally liable for their users' breach of name suppression orders is unjust and unworkable.
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:
InternetNZ hosted a workshop about name suppression in the digital age.
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.
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.
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
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