The full text of our submission to the Education & Workforce Select Committee for their ‘Inquiry into the harm young New Zealanders encounter online, and the roles that Government, business, and society should play in addressing those harms’.

About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.

Introduction

2. The internet plays a critical role in our lives and our society. It is where we socialise, shop, work, entertain, and learn.  Many people use the internet to organise most of what they do off the internet. 
3. Governments have steadily increased regulation of the internet as the use of it has grown. This regulation, which often limits what we can do online, frequently ends up limiting our civil liberties and thus becomes of interest to the Council. The more we do online, the more the internet has become the place in our society where freedom of expression and freedom of association happens.
4. The history of government regulation of the internet is full of mistakes and problems. Some regulation oversteps, such as New Zealand’s initial attempts to amend the Copyright Act, which would have had people lose the ability to use the internet after being accused of copyright infringement. Other regulations set up different standards for behaviour online, such as the Harmful Digital Communications Act, which sets higher standards for speech online than offline. 
5. Our submission to the committee is not so much about the potential harms of the internet and what we should do to ameliorate them, although we do touch on that, but more about some of the things that we shouldn’t do. In particular we want to stand up for the rights of all New Zealanders, including our young people, to take advantage of the good that the internet provides.

Internet harms and offline harms

6. The Council acknowledges that, as the internet is a microcosm of the world we live in, that some people will suffer harm from using it. This harm takes many forms including bullying, manipulation, theft, fraud, invasion of privacy, and so on. The harms can be serious leading to loss of reputation, of money, or even of one’s freedom or life.
7. We also accept that the internet provides opportunities for new forms of harm, or can make existing forms of harm worse. For example, the sheer pervasive scale of online harassment has proven to be an effective tool for bullying and silencing people. Similarly, requirements for people to provide personal information in order to use online services can lead to significant privacy harms; not just because of the massive trade in personal data in the era of ‘surveillance capitalism’, but because the holders of this sensitive information are frequently hacked or accidentally disclose it. The ease of data aggregation and data-sharing enabled by internet goods and services far outstrips what it would be economical to undertake offline.
8. Finally, we note that young people are more vulnerable than other people to some online harms.  
9. However, we would like to note that not all harms are bad and that some harms are a natural consequence of events. For example, revealing the identity of a politician who accepts bribes will harm the politician but is of great benefit to society. A policy which aims to eliminate all harm is misguided and doomed to failure. It is, for example, why the Official Information Act is a mechanism for weighing competing harms and public interest factors.

Our rights

10. What are some of the rights that New Zealanders have that are relevant to the internet?
11. While many of the rights in the the New Zealand Bill of Rights Act 1990 are relevant, we want to call out a few in particular which seem to cause particular problems for would-be internet regulators:
    1. Freedom of expression — “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”
    2. Freedom of association — “Everyone has the right to freedom of association.” 
    3. Protection from unreasonable search and seizure — “Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.”
    4. The right to minimal standards of criminal procedure, including the right to be presumed innocent and the right to a fair hearing.
12. The New Zealand Privacy Act 2020 promotes and protects individual privacy by “providing a framework for protecting an individual’s right to privacy of personal information”.
13. The UN Convention on Rights of the Child, ratified by New Zealand in 1993, explicitly notes that young people have these rights too:
    1. Article 13 — The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.
    2. Article 16 — No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
14. Of course, these rights are not absolute and, in the words of our Bill of Rights “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
15. We also recognise that these rights can be further limited for children based on their need for additional protections, but note that the limitations for young people also need to be justified.

Regulatory myths and misconceptions

16. In this section we wish to call out some common mistakes and misconceptions made both by people who wish to limit the rights of children and those who wish to limit potential harms from the internet through regulation. Obviously each is only a brief summary but we would be happy to come and discuss these in more detail. 
17. That all parents are good and will do the right thing for their children. Unfortunately we cannot rely on all parents to do the right thing for their children. Some parents abuse or neglect their children, others seek to unreasonably control them. Sometimes young people will have a legitimate need to do things, such as seeking health information, without the knowledge or involvement of their parents.
18. That age is a suitable proxy for vulnerability. There are plenty of adults who would be well advised to not use social media.  Equally, a large fraction of 15 year olds are more mature, and otherwise less a risk from the internet, than the average 16 or 17 year old.  Governments fall back on age as a proxy because even they acknowledge that any other system would be impractical, and often unethical. We should count the unsuitability of age as a proxy against every proposal to utilise it.
19. That age verification is easy or even possible. There are significant problems with doing age verification for everyone using the internet. Methods that are easy tend to be easy to circumvent, while the more secure ones tend to involve sharing too much data with companies who can’t be trusted with it. It would be possible to set up a centralised government age verification scheme but this would be expensive, wouldn’t be used by all sites, and is a very significant step on the path to engaging in mass surveillance of New Zealanders use of the internet. Any such system would also be easy to circumvent 
20. That measures which large internet companies can implement can also be implemented by  small ones and free services. Large companies tend to recommend schemes that suit their strengths in technology development, very aware that small companies and others won’t be able to implement them, further increasing the large companies’ dominance of the internet. The problem is even worse for the type of free websites and applications that have done so much to make the internet what it is today.
21. That we can meaningfully control what people do overseas. With so much internet content and so many services hosted in other countries, we can’t assume that they will pay any attention to the dictates of the New Zealand government. Proposals that rely on regulating the world are doomed to failure.
22. That online harm is always bad and should be stopped whenever possible. While the desire to stop people being harmed is a natural one, our society already weighs harms against benefits in our laws. Accepting cars means accepting car crashes, although we take measures to try and reduce them and their impacts. It would be a mistake to treat the online world any differently. An online version of a seatbelt won’t prevent all harms.
23. That measures which actually prevent harm are necessarily justified. Even if we accept, for the sake of argument, that some sort of measure could be adopted which effectively reduces online harm, that effectiveness is only a necessary pre-condition to using it, not a sufficient cause for adopting the measure.  We also need to prove that the measure is proportionate to the outcome which is achieved, particularly in terms of limitations on our liberties.  

An example of a poorly thought out regulatory response

24. A recent member’s bill, the Social Media Age-Restricted Users Bill, aims to help our young people by banning them from social media before they are 16. We advise  this committee to not recommend anything close to this poorly thought out member’s bill.
25. The bill has an incredibly wide view of social media as being platforms that “enable social interactions between 2 or more end-users”. This would include the obvious contenders such as Facebook, Snapchat, Twitter/X, YouTube, and Instagram, but also describes a large range of other online locations for interaction such as Reddit, Discord, hobbyist forums, support groups, instant messaging software, and even email.
26. This would cut off under-16 year olds from large and important portions of the internet. To note just three examples:
    1. It would stop them seeking peer support for issues with health, sexuality, dealing with disability, or other topics. 
    2. It would limit their ability to communicate with family and friends.
    3. It would block them from engaging in political activism, which is predominantly organised and publicised through social media.
27. The bill relies on age verification. However, age-verification aimed at young people will require  all New Zealanders to provide personal information about their identity, and not just those under the age of 16, because otherwise young people would just lie about their age (as they have already been trained to do by a number of websites).
28. It then makes the platform owners responsible for verifying ages. This might be weak in which case everyone will ignore it, or it might require New Zealanders having to submit identifying documents to a large variety of mostly overseas providers, thus undermining our privacy and providing an easy avenue for identity theft. 
29. Many providers of online services would not have the resources or technical abilities to do this work, thus meaning that they might either close down (for local providers) or pull out of the New Zealand market (for overseas providers), making it a loss for everyone both young and old. In economic terms, it creates a barrier to entry for new companies, thereby stifling innovation.
30. Despite the significant harms which any system of online age verification is guaranteed to cause, it is inconceivable that age verification will not be widely circumvented.  Even if our government were to enforce draconian technical measures (and thereby bring about the end of a free and open internet), young people will be able to socially engineer their way into anything to which adults in their households have access. Certainly, Aotearoa should not regulate based on the belief that we can implement technical measures which to date no other country, even those with drastically less freedom, has successfully implemented.
31. Overall, the member’s bill is a very blunt instrument which is a gross infringement on the civil liberties of the young. The damage this proposal would do far outweighs the harms that it claims it would ameliorate.

Thinking about the children

32. This Inquiry starts from the premise that we ought to do something to protect our young people from online harm, and that doing so involves doing something different than protecting everyone from online harm. The Council respectfully suggests that what we ought to be discussing are measures for protecting everyone online.
33. New Zealand Police fail to enforce sections 306 through 307A of the Crimes Act when people are threatened online. This is particularly curious as many of the threats are made in public, and the offender is identified. The Council suggests that routine prosecution of people for making threats online would have far greater effect in reducing online harm to young people than any measure specific to young people could.
34. Similarly, article 5 of the European Union’s AI Act outlaws a number of activities on the grounds that they cause more harm than can be justified. All of these rules would benefit young people as a side effect of benefitting everyone.
    1. subliminal, manipulative, or deceptive techniques
    2. exploiting vulnerable people
    3. detrimental or unfavourable treatment based on social scoring
    4. discrimination based on a prediction of what someone might do.
    5. building a database of photos of people without their consent.
    6. discrimination based on a prediction of someone’s mood or emotions.
    7. discrimination based on any form of biometric data, such as the shape of a person’s skull.

35. The Council has been encouraging the expansion of our privacy rights for decades. The Council recommended numerous methods of strengthening the Privacy Act 2020 before it was adopted. Those recommendations were largely ignored.  The Council firmly recommends increasing everyone’s privacy rights as a mechanism to protect youth from online harm.
36. The development of services on the internet has taken place in a global legal context that is dominated by American approaches to privacy regulation. This has encouraged the development of what is called ‘surveillance capitalism’ — business models predicated on the collection, aggregation, matching, and selling of personal data. Social media sites are provided free-of-charge to the public because the users of the sites are themselves the product, and advertisers and government agencies are the customers. People are encouraged to share events, relationships and personal information about themselves, and this includes many parents documenting their children’s lives on social media. However, young people in New Zealand (like all of us) have no ‘right to be forgotten’ that would empower them to take control of their relationship with these data merchants, despite our knowledge of how this data can be used to impact their lives. If New Zealand wants to be serious about tackling online harms — for all of us, not just young people — it cannot just propose sticking plasters for symptoms instead of tackling the underlying causes.

Conclusion

37. The Committee has taken on a wide-ranging and technically complex task in investigating online harms to New Zealand youth. We wish them well in their endeavours and hope that they can come up with useful and workable suggestions to protect our youth.
38. However, there are many pitfalls with regulating the internet. Whether it’s a desire for simple answers, products being pushed by vendors, a failure to understand ramifications, or just a draconian approach, there are many ways that bad policy can end up being implemented. We have tried to warn against some of the possible mistakes, and trust Members of Parliament will be cautious of anyone trying to persuade them to buy legal or technological ‘silver bullets’.
39. But most importantly, we wish to support the rights of our young people to take advantage of the many wonderful things that the internet has to offer. These rights are protected by the New Zealand Bill of Rights Act and any interference with them will need to be justified by more than just fear mongering.
40. Our young people are the future of Aotearoa New Zealand. We would be doing them a disservice if we blocked them off from each other and the world for the sake of “keeping them safe”.