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.

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).