article, copyright

Replacing ISPs with IPAPs – How well have they done?

11 Comments

The Commerce Select Committee has reported back on the Copyright (Infringing File Sharing) Amendment Bill (PDF).

One of the problems in the drafting of such a law is how to define what an ISP is. The obvious approach is “provides internet services” but what about a cafe that gives free wireless access to customers? Or a university that provides services to staff and students? The problem is a lot harder than it looks.

The latest report suggests replacing the definition of “Internet Service Provider” with one for “Internet Protocol Address Provider” or IPAP.

This would avoid ambiguity and focus on the function of an Internet service provider that is relevant to infringing file sharing, namely the provision of Internet protocol addresses.

Of course, this does no such thing as anyone providing any form of internet service must provide an “Internet protocol address” to each person using it. It’s inherent to the nature of an Internet connection and, once again, shows that Government isn’t very good at technology. Edit: This may be trying to protect providers of low level services such as cabling and fibre.

However, when we look at the full definition, maybe it’s not so bad:

IPAP means a person that operates a business that, other than as an incidental feature of its main business activities,

(a) offers the transmission, routing and providing of connections for digital online communications, between or mong point specified by user, or material of the user’s choosing; and

(ab) allocates IP addresses to its account holders; and

(b) charges its account holders for its services; and

(c) is not primarily operated to cater for transient users.

A discussed, the inclusion of “(ab) allocates IP addresses” seems a bit unnecessary but overall the definition seems to hold up under scrutiny.

  • Orcon and other ISPs would obviously be an IPAP.
  • Cafenet supports both transient and account-based users. Should it be an IPAP?
  • Universities and libraries would not be an IPAP because of (b) (there is no direct charging although student fees do include provision for services).
  • Someone sharing a connection with their friends would not be an IPAP because of (b).
  • Citylink would be an IPAP. (Should it be? See discussion in comments.)
  • The local coffee shop would not be an IPAP because of (b) and (c).
  • Would an Internet cafe be included? They do charge, the users vary between transient and regular.
  • Mobile data from Vodafone/Telecom/2 Degrees will not be included for now, because a separate clause delays their inclusion until 1 August 2013.

How have they done? Please help.

Can you think of any cases:

  • Where a person or company will be included as an IPAP that shouldn’t be?
  • Where a person or company that should be an IPAP won’t be?
commentary, suppression

Government looking at further regulation of speech on the Internet

Justice Minister Simon Power claims that “new media” on the Internet is a “wild west” that lacks professional or ethical standards. He says:

Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

He has asked the Law Commission to review whether current regulations are good enough. This is the same Law Commission that believes that ISPs (Internet Service Providers) should have a responsibility to close down websites and shutdown webservers if they are hosting material that might be in breach of a suppression order.

The report will focus on whether the two existing industry bodies, the Broadcasting Standards Authority and Press Council, could be used to regulate “new media”, and whether existing criminal and civil remedies and penalties are appropriate.

These is no mention in the press release of the freedom of expression guaranteed to New Zealanders in the Bill of Rights Act. Nor is there any recognition that many forms of old media such as leaflets, posters and books are also unregulated.

An issues paper is expected by December 2012.

ACTA, article

ACTA: the ‘final’ version

The 11th round of the ACTA Treaty negotiations have finished and it seems that there won’t be any more rounds. Exactly what this means when the treaty text hasn’t been finalised is uncertain.

The current treaty text has been officially released.

The Tech Liberty view

We’ve had a lot to say about the ACTA treaty over the past year. In its earlier form there was a lot to complain about – it was much more than an anti-counterfeiting treaty in the way it tried to impose draconian pro-copyright and pro-patent laws.

In our article, ACTA – Bad for Civil Liberties, we noted five particular points that worried us:

  1. Excess criminalisation where infringement is taken from civil law to criminal law.
  2. Statutory damages where the law specifies the amount of damages to be paid to the plaintiff rather than letting a judge or jury make a determination based on the circumstances of the case.
  3. Third party liability where people (such as ISPs) who provide tools or means that other people use to break the law are held liable.
  4. Forcing ISPs to breach privacy by giving up customer information on demand.
  5. TPMs (technological protection measures) where digital locks are used to prevent people using products they’ve bought in ways that the rights holder doesn’t want them too.

In our last update, we noted that our objections to points 1, 2 and 4 had largely been removed, while progress had also been made on points 3 and 5.

Further changes

Since then, the section about third-party liability (i.e. blaming ISPs) has been dropped in favour of some rather wishy-washy statements about encouraging people to work together to stop infringement within the laws of the respective countries.

The section on TPMs still remains but adds “to the extent provided by its law” which seems to mean that each country will be able to set its own rules. This means that New Zealand can keep its current law that allows people to circumvent TPMs for non-infringing purposes.

In other words – the five issues that we chose to focus on have all been steadily neutered over the course of the negotiations. While we still don’t believe ACTA is benign, or necessary, many of the worst aspects have been removed.

Some other views

Continue reading ACTA: the ‘final’ version →

article, suppression

Government to turn ISPs into censors

2 Comments

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.

submission, surveillance

Oral submission : Search & Surveillance

1 Comment

Today Tech Liberty made an oral submission to the Justice & Electoral Select Committee about the Search & Surveillance Bill, following up from our written submission.

We changed some of our recommendations between the written and oral submissions, particularly around:

  • Notifying people of searches or surveillance against them
  • Handling targeted searching of computers

The full text of our oral submissions follows, albeit there were some wording changes in the actual presentation.
Continue reading Oral submission : Search & Surveillance →

article, privacy

Changes to availability of car rego info delayed

The New Zealand Transport Agency has announced that the changes to public access to the Motor Vehicle Register have been delayed until April 1, 2011.

Current law

Currently, the names and addresses held on the Motor Vehicle Register are publicly available to any person who provides the registration plate number of the vehicle and pays the prescribed fee. It is possible to request a confidential listing.

This means that anyone who knows the registration number of your car can find out where you live.
Continue reading Changes to availability of car rego info delayed →

submission, surveillance

Submission: Search & Surveillance Bill

2 Comments

Text of our submission to the Select Committee about the Search & Surveillance Bill. Or download the PDF version.

1. General comments about the S&S Bill

While we appreciate the proposed changes to the Bill, we still hold grave concerns about the general thrust of the Bill towards increased powers for search and surveillance.

We have the following comments on some of the issues raised by the Summary Departmental Report.
Continue reading Submission: Search & Surveillance Bill →

commentary, meta

Dissent, the internet and freedom

Tech Liberty was formed because a group of us were concerned that governments were ignoring traditional civil liberties when it came to new technology. The New Zealand government had recently passed a digital copyright law that would see people punished without due process and were secretly introducing a new internet censorship regime. We decided that we needed to stick up for the civil liberties that underpin our democracy and keep our society healthy.

A recent article by Rob Weir does a good job of articulating what drives us. In How to Crush Dissent, he compares distributing information on the internet to the samizdat underground presses in the Eastern Bloc. He fears that our current anarchic level of information freedom could be temporary:
Continue reading Dissent, the internet and freedom →

ACTA, article

ACTA: Improving but problems remain

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The ACTA treaty negotiation process is still going strong. The participants apparently feel pressured to finalise the agreement before the end of the year and have agreed to an extra negotiating round in Washington next week to help hurry things up.

The most recent leaked text shows that progress is being made on the details while some major disagreements (mainly around the scope of the agreement – should an anti-counterfeiting agreement also include patents and geographic indications) are yet to be resolved.

In our last summary article about ACTA we raised five issues where we thought that the treaty was a threat to justice and civil liberties.

Here we revisit them and find significant improvement in three of those issues and minor improvements in the other two.
Continue reading ACTA: Improving but problems remain →