I was looking at the just released consultation document on Regulations and Codes of Practice for the Anti-Money Laundering/Countering the Funding of Terrorism Act.

They ask for submissions and add the following:

The Ministry of Justice does not intend to publish comment that it receives on this document. However any comment will be subject to the Official Information Act 1982 and may, therefore, be released in part or full.

This makes me feel like requesting all the submissions and publishing them (as Tech Liberty did for the ACTA submissions) just on general principle. Maybe if we keep doing that they’ll finally realise that it just makes more sense to publish the submissions themselves.

Last week I went to my first Select Committee hearing and therefore I’m now an expert. Here’s what I found out.

Why

The New Zealand Council for Civil Liberties sent in a submission about the Electoral (Disqualification of Convicted Prisoners) Amendment Bill to the Law and Order Select Comittee.

Current law says that prisoners given a sentence of longer than 3 years cannot vote; this bill extends that to all prisoners. The Council opposes this change and recommends that this provision should be removed from the law, not extended.

In our submission we asked to make an oral submission to the committee.

Subsequently we received an invitation to appear before them. We were allocated 10 minutes to make our submission. Kevin was to do the submission while I went to support him.

Where

We turned up at Parliament 20 minutes before our time and went through the main visitor entrance. The receptionist asked us our business, gave us a sticker and then pointed us in the direction of the hearing rooms. The door was closed and a sign said that it was closed to the public. We sat down and chatted to the other submitters.

How

Eventually (they were late) the committee finished what they were doing, a whole bunch of people in suits filed out, and the sign on the door was changed to show that it was open to the public. We all filed in and sat in the public seats at one end of the room.

At the other end was a large U-shaped table with the various MPs around it, each with a computer terminal and a sign with their name in front of them.

What

The proceedings of the committee were fairly relaxed. The chair of the committee invited us up, quickly did introductions around the table and then asked us to speak.

Kevin gave his presentation and then the committee asked questions. The questions were generally quite good and showed that the committee members had listened to what he was saying – although some were obviously using our submission as a launch pad to put forward their own points of view. One committee member even asked for a copy of the statistics we had included in the presentation and then raced off to take copies.

Then the questions stopped and it was time for the next submitter to make their presentation, so we made our way out.

Acknowledgements

Thanks to Kevin McCormack of the NZ Council for Civil Liberties who wrote the original submission and then prepared and presented the oral submission.

A friend asked me a set of simple questions: “Why are they doing this whole thing with the ACTA treaty? Why is it secret? Why is NZ participating?” He then followed up with: “Why are you against it?”

This set me thinking. There’s been lot of articles complaining about the secrecy around the ACTA negotiations (I’ve even written some) and worrying about the contents of it, but they often assume a certain level of knowledge of the base assumptions.

This article is an attempt to spell out some of the basic assumptions behind the opposition to the ACTA treaty. It’s a combination of some of the things I suspect are true, along with some of the claims I’ve seen from other people. As such it’s not a statement of how things are, but more a statement of what I and others fear to be true.

Some points that could be grouped to form an argument

1. That the ACTA treaty is currently being negotiated by a number of countries including the USA, the EU, Australia and New Zealand.
2. That the negotiation and the proposed content of the treaty is being kept a secret.
3. That there is no plausible justification for negotiating the treaty in secret.
4. That the ACTA treaty is going to go beyond anti-counterfeiting and try to impose new conditions around the use of copyright material.
5. That compliance with the ACTA treaty will require signatories to implement domestic laws which specify draconian new penalties for people who breach copyright.
6. That such penalties have long been a goal of those in the major content industries.
7. That the content industry contributes a lot of money to US politicians.
8. That US politicians are largely beholden to the people who financially support them.
9. That the USA is behind the attempt to extend ACTA to copyright.
10. That the USA knows that the wider public has a better understanding of copyright issues than the average politician.
11. That the USA is behind the attempts to keep the ACTA negotiations secret as they know it will not stand up to mass scrutiny.
12. That being a signatory of ACTA will be a pre-requisite to signing a free trade agreement with the US.
13. That politicians in many countries, including New Zealand, see signing a free trade agreement with the US as good both for the country and their careers.
14. That politicians don’t really understand the issues around copyright in the digital age.
15. That politicians will be happy to sacrifice copyright issues if it gets them closer to a free trade agreement.

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 amazon.com!

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.

Conclusion

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.

I sent in a submission to the Department of Internal Affairs about the Internet filtering scheme. Originally I was intending to run the normal arguments (which I’m sure anyone reading this is already familiar with) but I started to think about the constitutionality of the scheme – and my submission got away on me a bit.

Here’s some of the questions I’m thinking about:

1. Where does the DIA derive the authority to create and implement the Internet filtering scheme from? I can’t find any basis for it in the 1993 Films, Videos and Publications Classification Act that they mention in the draft Code of Practice.
2. Can Government departments just make new powers up? What avenues are available to stop them?
3. Even if there was some basis in the 1993 law, it’s very clear about censorship decisions having to be published, and also defines an accountable appeals process. The DIA seems to have completely ignored this when designing their scheme. Again, how can they do this and how can we stop them?
4. When a new law is proposed that has Bill of Rights implications (“Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise” seems relevant), the Attorney-General has to submit a report to Parliament on those implications. Is there anything similar when Government departments create new powers for themselves? How does the Bill of Rights work if government departments can just ignore it?

If anyone has any answers to these questions or can point me in the direction of a constitutional lawyer who wouldn’t mind giving some free advice for a good cause, I’d be very grateful.

IT Minister Steven Joyce has finally sent me a reply. This was in response to me asking him about his statements in NBR against the idea of Internet filtering:

We have been following the internet filtering debate in Australia but have no plans to introduce something similar here.

The technology for internet filtering causes delays for all internet users. And unfortunately those who are determined to get around any filter will find a way to do so. Our view is that educating kids and parents about being safe on the internet is the best way of tackling the problem.

I asked:

• Are you still against the introduction of internet filtering?
• Does the National government have a policy for or against internet filtering?

His letter didn’t answer either question, the only substantive part of it was:

I would like to say first off that the voluntary website filering system being proposed in New Zealand by the Department of Internal Affairs is significantly different in design and scope from the mandatory system proposed in Australia.

He then listed a number of differences in the systems and suggested I talk to the Department of Internal Affairs about it.

What I find interesting about this letter is that he carefully avoids answering both of the questions I asked. Steven Joyce refuses to say that he now supports Internet filtering, and also refuses to take the opportunity to state whether the National government has a policy for or against it.

I find this lack of clear political support for the scheme to be heartening.

Three Statements

From the DIA press release titled “Web filter will focus solely on child sex abuse images”:

A filtering system to block websites… will focus solely on websites offering clearly objectionable images of child sexual abuse.

From a letter from Nathan Guy, Minister of Internal Affairs:

I support the Digitial Child Exploitation Filtering System that has been developed by the Department of Internal Affairs to help prevent access to child sexual abuse images. The filtering system will focus solely on known websites offering clearly objectionable images of child sexual abuse.

However, Rory McKinnon has also been writing to the DIA to collect information for an article he wrote for the NZPA. He asked: “Can the minister personally guarantee that the blacklist will not “creep” (that is, expand its scope to include anything other than child sex abuse)?” The response (written by Trevor Henry, Senior Communications Advisor, Regulation and Compliance – 17/7/2009) to this letter was a little different:

The Department confirms that the scope of the filter will be confined to websites carrying images of children being sexually abused but there may be circumstances when a website that contains text files might be blocked. For example, an instructional manual for child abuse or a diary relating to the abuse of an actual child might be blocked.

Scope Creep

You may note that the first two statements very clearly say that the only websites to be filtered will be those that host images of children being sexually abused. The third statement contradicts the first two. It includes examples of other material that might be blocked by the filter, such as a text manual or a description of abuse.

Now, maybe you don’t think that filtering a manual or diary about sexual abuse is that bad – but that’s part of the problem. It often makes sense to extend something just a little bit further… then a little bit further… until finally you end up somewhere quite different from where you started.

For example, if you can filter an article that describes how to sexually abuse a child, can you also filter an article that explains how to get around the filter to read the first article?

The Australian system experienced this exact problem. They started by banning objectionable images and ended up banning entire websites that revealed what was being filtered.

Trusting the Government

Now, it probably bears repeating that I have no sympathy for those who create and distribute child pornography. My argument has always been that filtering won’t work, and that doing it secretly will lead the government to abuse it.

On the second point, the DIA’s position has been that we have to trust them and whatever secret review process they set up. But why should we trust them?

They refuse to give anyone a copy of the full list so that it can be audited, and when asked for a partial version of the list without the full addresses, they revealed that they have started deleting the records so that no one else can audit them either.

Now we find that their statements about only filtering images are also incorrect. The scope of what they’re doing has already grown before the system is out of the trial phase.

Internet filtering is not going to stop child abuse or child pornography and any such scheme is too open to abuse by the government. We should abandon it now – personally I’d rather we spent the money on preventing child abuse.

I have received a letter from Nathan Guy, Minister for Internal Affairs, where he expands upon the DIA’s plans to set up some sort of oversight on the Internet filtering scheme.

My department recognises that, to ensure public confidence in the filtering system, the operation of the system must be as open to scrutiny as possible. The Department is, therefore, developing a Code of Practice to govern the operation of the completed system, and will be making the Code available on the Department’s website for public comment. An Independent Reference Group will be formed to ensure the Department operates the website filtering system in compliance with the Code.

I look forward to seeing the Code of Practice and hearing more about the Independent Reference Group.

While re-reading the most recent response from the Department of Internal Affairs (see page 3), I was struck by the following:

The Department is moving to implement the fully operational system and will shortly commence rebuilding the list. As the filtering list is rebuilt, new officer’s reports will be generated and, in preparation for this process, the reports related to the trial list have been deleted. The Department therefore cannot provide the requested information as it does not exist. [emphasis added]

I believe that this is a serious concern.

The Department of Internal Affairs has been running an Internet filtering scheme that has been actively used to filter people’s Internet connections without their knowledge. They have apparently deleted the reports that they used to justify adding websites to the list. This means that they have deliberately removed the ability for anyone to audit what they have been doing.

As a government department, the DIA has a responsibility under the Public Records Act 2005 to ‘create and maintain full and accurate records in accordance with normal, prudent business activity‘. They’re not allowed to just delete them without getting permission from the Chief Archivist.

It’s this sort of behaviour that makes it so important that any filtering scheme be conducted in an open and accountable manner.