Tech Liberty NZ » OIA

Report on public talk: Open Connectivity, Open Data

Thomas Beagle — Thu, 01 Jul 2010 09:40:01 +0000

Jonathan Penney, the Cyberlaw Fellow at Victoria University gave a public talk about the idea of "internet as a right" and whether there is any basis for this in current New Zealand law.

He started by looking at s14 of the 1990 Bill of Rights Act. This is about freedom of expression:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

This is obviously strongly influenced by article 19 of the Universal Declaration of Human Rights and article 19(2) of the International Covenant on Political and Human Rights.

These were all described as coming out of a post World War II consensus about access to information called the "free flow paradigm". This is the idea that information should be unrestricted globally and was possibly a reaction to years of war propaganda and state censorship. The three principles of this are:

Freedom of information as foundational to free expression
The "free flow" principle
Mass media is essential to free expression and free information

This model was challenged by the NWICO paradigm that emerged in the late 70s. This saw that the free flow model gave too much advantage to rich companies and countries, and thought that increased government regulation was necessary to make access to information fairer.

The distinction between those two is is important when it comes to interpreting the NZ Bill of Rights - the framers were surely aware of these battles and chose the much less restricted language of the free flow paradigm. What does this mean for New Zealand? Jonathan Penney drew out two main conclusions:

Open connectivity - the internet is an important means of communication and it is easy to see that s14 of the Bill of Rights includes a "negative right" to it. This means the government doesn't have to provide it, but also can't block people from it (in the same way that freedom of speech doesn't mean that the government has to give you a printing press).
Open data - access to information ties into open government and democratic participation.

This then has the following implications:

Access to different mediums is foundational to the right - you can't take away access to radio and print and say "Well, at least you've still got TV."
State obligations to promote the free flow of information - the Official Information Act and open data.
No distinction between citizens and big media for information rights.

Which in practical terms leads to:

No internet account termination (as was in s92A of the Copyright Act).
The restrictions in the Official Information Act should be read narrowly.

ACTA Submissions 2010

Thomas Beagle — Thu, 06 May 2010 02:03:56 +0000

The Ministry of Economic Development recently asked for submissions on the topic of digital enforcement in the ACTA treaty. We submitted a submission, as did 33 other organisations and individuals.

We requested copies of them under the Official Information Act; here they are in PDF format (we'll do another post with the earlier submissions):

Notes

We haven't done an extensive analysis, but here some things we noted:

Sam Stockwell accidentally wrote "I would support people illegally selling stolen material for profit". Queried by MED, he quickly clarified it to say he meant the opposite.
NZ FACT (Federation Against Copyright Theft) recommends using the USA's DMCA (Digital Millennium Copyright Act) as an appropriate baseline for issues of secondary (ISP) liability.
NZ FACT supports the idea that a court order is the appropriate method for a rights holder to be able to get user information from an ISP.
Trademe points out that they make efforts to avoid hosting content and products that infringe copyrights, but worry that they can't catch everything and aren't sure whether ACTA as currently drafted would give them safe harbour protection from liability.
Oxfam calls for patents to be excluded, worries that ACTA will limit access to affordable medicines.
RIANZ (Recording Industry Association of NZ) acknowledges that a court order is the appropriate way for a rights holder to be able to get user information from an ISP.
The Royal NZ Foundation of the Blind wants ACTA to allow people to circumvent TPMs to exercise permitted use of protected content.
Chris Slane, cartoonist, wants to be able to use copyrighted works and trademarks for the purpose of review and satire.
Norbort Bollow, Google and BASCAP made the only submissions that were obviously from overseas.
Google doesn't think that ACTA should include secondary liability or, if it does, the safe harbour provisions should be robust. They also recommend penalties for false claims.
John Cranfield is claiming that infringement doesn't happen when people share data files, but occurs when people use a player to convert that data to audio/video. Therefore he says the correct answer is to regulate operating systems and digital media players.
Telecom is concerned that ACTA may impose additional costs on ISPs and does not want have to decide whether users are infringing or not.
Overall, and admitting that the sorting was rather crude, there were 30 submissions against ACTA and 4 submissions in favour.

Department of Internal Affairs failing on open government

Thomas Beagle — Mon, 15 Mar 2010 20:40:58 +0000

Last week we announced that the New Zealand internet filter had "gone live" and was now being used to filter the connections for users of two ISPs (Watchdog and Maxnet), with more expected to follow.

The obvious question has to be, why was Tech Liberty announcing something that the Department of Internal Affairs had done? Where was their announcement that the filter had gone live on the 1st of February? Don't civil servants have a duty to communicate to the people that they serve?

Sadly this reticence with information has been typical of the Department of Internal Affairs in relation to the implementation of the Internet filter.

Deleting Public Records

Last year we used the Official Information Act to ask for copies of the reports that the inspectors has used to justify banning the websites on the list. The DIA refused. After we appealed this refusal to the Ombudsman, the DIA then said that those records had been deleted and therefore it was impossible for them to give them to us anyway. The Department has an obligation under the Public Records Act to keep such information.

We complained to the Chief Archivist, who investigated and confirmed that the DIA had deleted public records without permission. He told us that the DIA has promised to do better in the future, but naturally this didn't help us access the missing records.

The Secret Go-Live Date

Why has the DIA been so secretive about the filter going into operation? Here's two examples where we believe that they have failed to be open and honest about what they are doing, even in response to direct questions.

We wrote to the DIA and asked them, again, when the filter was going to go live. They wrote back on January the 20th and said that as they were about to make an announcement, the Official Information Act gave them grounds to refuse our request. This was 11 days before Watchdog was the first ISP to start using the filter. It's now the 16th of March, nearly two months later, and there's still no announcement from the DIA.

Secondly, on February the 15th we rang Keith Manch, Deputy Secretary of Internal Affairs, and directly asked him when the filter was going live. Keith is responsible for Regulation and Compliance and has been heavily involved in the implementation of the filter. Did he admit that the filter had gone into operation two weeks earlier? No, he carefully took note of our questions and then wrote in a follow-up email that as we had already asked those questions by letter he wouldn't answer. We finally got our answer on March the 8th, admitting that the system had gone live on February the 1st.

Open and Democratic Government

Tech Liberty is at the intersection of technology and civil liberties. We are strong supporters of the right to self-rule as expressed through democratic government. An important element of democratic government is the principle that government must be open and accountable, as without this governments tend to become corrupt and self-serving.

New Zealand recognises this and the Official Information Act and Public Records Acts are some of the ways we use to ensure that our government remains open and accountable. However, the law isn't enough on its own, it also requires a commitment from government departments to honour the spirit of the law and not try to use or misuse the letter of it to conceal information.

We don't believe that the Department of Internal Affairs has been living up to this standard when it comes to the issue of internet filtering.

Internet filter list to be kept secret

Thomas Beagle — Tue, 23 Feb 2010 20:58:05 +0000

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.

Read the full text of the Draft Decision (PDF) with the full justification and the Final Decision (PDF) responding to our comments about the draft decision.

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.

Conclusion

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).

Law Commission to Review Official Information Act

Thomas Beagle — Wed, 09 Dec 2009 22:02:14 +0000

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.

Our View

At Tech Liberty we strongly believe that democratic government must be as open and accountable as possible. The Official Information Act is a very important piece of legislation that clearly established the idea that all government information must be available unless there are very good reasons for it not to be (privacy, defence of the country, legal privilege, etc). We think it's a piece of legislation that we can be proud of.

There are still improvements that can be made to the Act and we hope that this review will result in them being made. There are obvious issues around timeliness of responses, overuse of grounds for refusal, and the reliance on an overworked Ombudsman's Office to arbitrate appeals. Another key limitation is that it is necessary to know that information exists before you can ask for it.

A Change in Emphasis

We suggest that it might be time to take the Official Information Act into the digital age by changing the assumptions behind it. Let's move from saying that information will be given out when asked for, to a system where information is made available for anyone to search over the Internet.

Obviously there will need to be procedures to ensure that data that would be withheld under the OIA will still be kept private. Most government departments are already installed document management systems to comply with the Public Records Act and these could be adapted to keep track of which documents can and cannot be automatically published.

The OIA changed the presumption that government should be done in secret, let's take the next step and insist that government is done in public.

Participate in the Review

You can make your own suggestions by going to the site where you can get involved by:

Participating in their online forums.
Downloading their survey to fill out and return it by January 22nd 2010.