The Law Commission’s report Suppressing Names and Evidence is a waste of time and money. They have spent a lot of time thinking about exactly why, how and what information should be suppressed, while neglecting to consider whether this suppression is even possible.

The Recent Case

I assume you’ve heard of the “well known entertainer” that was recently granted name suppression after the judge discharged them without conviction for offensive behaviour. For some reason a number of people felt it was so important that they tell everyone who it was that I found out their name on:

• Twitter
• Facebook
• Online chat
• Kiwiblog

I’m told it was also on the Trade Me forums as well as many others. Even the Wikipedia page for the performer has the details – if you think to look in the edit history.

Takedown and Blocking Notices

Publication of this sort of information on the Internet can’t be stopped. While you could send a takedown notice to local sites (such as Trademe and Kiwiblog) and expect it to be honoured, overseas sites such as Facebook and Twitter are going to ignore it.

The Law Commission seems to suggest that it will be the responsibility of ISPs to block access to sites publishing such information (recommendation 26 from the report):

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.

In the case above this would mean that ISPs would have to block the Facebook and Twitter web pages (the nature of these services means that you can’t just block a single piece of information as it could appear on any number of pages/URLs). They’d also have to block a number of other international forum sites. Ultimately, we would end up with the requirement to block every website in the world that contains content submitted by the users of the site.

If we get to this point the Internet in New Zealand is fundamentally broken and we’ve decided to stop being a member of the information age. Obviously this is not going to happen.

Is Name Suppression Dead?

If the courts can’t suppress information on the Internet is there any point continuing with suppression at all?

One counter argument is that not everyone is of as much interest as a “well known entertainer” so in some cases name suppression might continue to work. But the current trend is for people to put more and more of their lives, and the lives of the people they know, online. Over time I expect suppression to become less and less effective, even for people who don’t have a national profile.

You may notice that this article makes no comment on whether name suppression is good or bad. I’ve not always been happy with how it is used but, in general, I’m not completely against the concept, especially when it is used to protect the victim.

The problem is that my opinion, just like that of the Law Commission, is becoming increasingly irrelevant. The Internet does such a good job of sharing information that the idea of being able to control access to that information is becoming obsolete.

Court ordered suppression might work partially for a few more years but the end is in sight. The Law Commission would have done a better job if they had recognised this.

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.