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.

There’s nothing new in extending the current rules about not publishing suppressed material to hosting an Internet website publishing the suppressed material. Obviously someone will have to complain to the ISP (Internet Service Provider) that are hosting suppressed information, but the ISP will be able to refer to the judge’s suppression order and remove it. (Although of course there may be times when it is unclear whether a particular piece of information breaches a suppression order.)

The more worrying part is the use of the word “carrying” which, as far as I can tell, can only refer to information that the ISP is carrying between ‘somewhere on the Internet’ and the user.

By demanding that the ISP be able to block access to this information, the Law Commission is requiring all ISPs to implement a filtering system that is capable of blocking any access on any Internet protocol to any Internet address that may have the suppressed information. If they fail to do so, penalties include fines and imprisonment (exactly how you imprison an ISP I am not sure).

There are a number of problems with this:

  1. Each ISP would have to implement a filtering system (both technically and procedurally) and this would be very expensive.
  2. It puts an unreasonable responsibility on the ISP.
  3. Who would be responsible for removing information blocks when a suppression order is lifted?
  4. Most importantly, what they have asked for is technically impossible to implement.

Why is it technically impossible?

Information is shared on the Internet using a number of different methods (protocols). They include email, online chat, web pages, and peer to peer file-sharing. A number of these different protocols use encryption between the user and the site. For example, banks and online shops all use secure web traffic (HTTPS) to keep your transactions safe from interception.

If a piece of suppressed information is made available at an Internet address that uses encryption, the ISP can’t read the encrypted request and will therefore have to block all traffic to that Internet address. If your online shop uses the same Internet address as a site with suppressed information (sharing Internet addresses is very common, with some addresses hosting thousands of sites), access to your shop will also be blocked.

This means that every time someone overseas publishes information contrary to a suppression order from the New Zealand courts, a number of websites will have to be blocked. This will fundamentally break the Internet in New Zealand.

Of course, if you run a bookstore in New Zealand I suggest that you might find it advantageous to make sure to add some suppressed information to a review on!

This doesn’t even cover the technical difficulties and costs involved in deploying a blocking system that can filter everything on the Internet. You may note that the Chinese Government has spent a lot of time and effort building their Great Firewall of China and even that does a poor job of blocking information.


I believe the Law Commission needs to rethink this recommendation. The blocking they have asked for is technically impossible to implement without breaking the Internet.

Of course, if it’s impossible to suppress information on the Internet, is there any point in suppressing it in newspapers and other media? We may have to accept that we cannot suppress information on a pervasive global communications network.

It looks as though the Law Commission’s report may be obsolete on the day it was published.

5 Responses to “Law Commission’s Report on Suppression is Obsolete”

  1. 1Dylan on Nov 16, 2009 at 10:59 pm:

    I was thinking about this before and another aspect occurred to me… How does an ISP know if they are hosting (or carrying) suppressed information?

    If I make a blog post saying that the true identity of the name-suppressed rapist in Clevedon is “Joe Blogger” and someone complains, how is the ISP able to verify that? For media organisations it’s fairly easy, they typically know the information they’re not allowed to publish, for ISPs it’s a lot more complicated, as they will not be privy to the information that is suppressed in the first place.

    But yeah there’s also the larger picture (in so many new laws) where ISPs are becoming liable to content they deliver – as well as the technical issues, there is the very large issue of compliance. The copyright one is a huge issue – without a large legal team at work, how is an ISP able to determine with any certainty if a copyright infringement claim is legitimate?

  2. 2mundens on Nov 17, 2009 at 6:07 am:

    Another angle, dating back to the old days of internet suppression attempts that needs to be pushed again is that an ISP is a “common carrier” and cannot be expected to control what passes over it’s network any more than a telephone company can.

    An analogy to the above Law Commission suggestion that may make it more obvious to people who don’t understand the internet, why it won’t work, is to equate it to phone calls.

    The request to block a site is technically exactly the same as a person, having made a phone call via Telecom to a person they know in China, being told some information that has been suppressed in New Zealand, and raising this to the court, the court then requests Telecom (for example) to block access to calling that number in China for all people in New Zealand.

    The obvious flaws are that Telecom is not the only international provider, so anyone could still call the number in China via Telstra, or, if they have a Sprint account they could call direct via Sprint via the drop number in NZ. And thats not even getting into the concept of dialling foreign exchanges and basking to be redirected, or using a satellite phone

    There really is very little difference in concept between blocking a phone number in a foreign country and blocking a web site, and when yu put it in phone number terms people can start tp see how impossible it is to block, without understanding the internet.

    People will say there is a difference in that the message is always there and multiple people can read it, but that’s just the same as if the number connects to a conference centre that is continually playing a recorded message of the suppressed information, instead of muzak.

    In fact, the Law Commission should be asked how they expect telecommunications companies to deal with that example, and if they don’t expect the telecommunications companies to try and block the number, why are they expecting an ISP to block a web site which is, as far as information transfer and accessibility goes, exactly the same thing!

  3. 3Jack M. on Nov 17, 2009 at 6:34 am:

    Sorry, I really don’t see this as a problem. The use of the word “carrying” is only a problem if you look at it from a IT professional’s POV. From a lawmakers viewpoint, the obvious meaning of this is much more likely to be “carrying it on one’s own server”, and not “carrying it on one’s own cables” ie, on a hard disk under the control of the ISP.

    I don’t read this as a new way to block foreign sites but as a way to enforce an otherwise good (and existing) law – to protect personal privacy rights of those involved in crimes. If an ISP knowingly publishes the information (or doesn’t remove it from their own sites after being made aware of it) they are in breach of those rights of the individuals involved.

    I don’t believe the law commission is attempting to force ISP’s to block access to other sites beyond their own scope, via evil censorship powers. Perhaps the wording of the clause should be changed to reflect a definition of the word “carrying” but I think the intent of the proposed law is fine.

    – Jack M.

  4. 4thomas on Nov 17, 2009 at 7:05 am:

    Dylan – I am assuming that ISPs will be reacting to some sort of “you must block this” notice. Even the Law Commission must surely realise that ISPs can’t monitor the entire Internet and court suppression orders.

    Mundens – It’s a good analogy. Would you like to turn it into an article about the futility of blocking/filtering to be published on an about to be launched website?

    Jack – I don’t agree with your interpretation of the language of that clause, I believe that Internet NZ has asked the Law Commission for clarification. However, that just brings into doubt the whole idea of suppression.

    Consider the recent case where “an entertainer” was convicted of offensive behaviour in Wellington and given name suppression. People seemed determined to tell me the name (which I’m not going to pass on here) and I heard it multiple times on Facebook and Twitter. You can also find it in the history edit history of the wikipedia page about them.

    If we are going to have suppression at all, we either have to do what I believe the Law Commission has asked for (and which I don’t believe is technically possible) or… well, there is no or. I fear that name suppression is obsolete.

  5. 5Jack M. on Nov 17, 2009 at 9:40 pm:

    I guess there’s an alternative to enforcing it at an ISP level – perhaps the law should be able to force the ISP to remove it only if they posted it there themselves, and otherwise force them to reveal who posted it so the law can take direct action directed at the person who did the breaching.

    As an alternative to your statement that “name surpression is obsolete”, I would propose that “national laws are (or will soon be) obsolete”, and that we will need more common international laws so these things can be enforced globally.

    Maybe nations will eventually be obsolete, and we can all finally live in the global village. John Lennon would have approved.

    Bring on world order. Ahem, on second thought, perhaps not.