Submission: Oral re Internet Censorship (FVPC Amendment Bill)

Following up from our written submission, we also made an oral submission to the Governance & Administration Select Committee. This is an edited version of our prepared presentation.

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Good morning, and thank you for this chance to present.

I'm Thomas Beagle and I'm the chairperson of the New Zealand Council for Civil Liberties. I think it's also worth mentioning that I'm an IT professional and have worked with computers and networks for many years.

I'm not sure if you've had time to read it yet, but our written submission has come out strongly opposed to this Bill. We believe it's unnecessary, poorly thought out, and simultaneously ineffective and a serious threat to our right to freedom of expression.

Before I go into any more detail and explain that apparent contradiction, I'd like to give an overview of our understanding of the state of information on the internet.

Censorship

The internet has changed the way we access, share and give information. It's one of the main places where we exercise our right to freedom of expression. This digitisation has led to many changes, good and bad, and one of those is that censorship doesn't mean what it used to.

It was once possible to control what people saw through the state-controlled radio stations, the state-controlled television stations, the printing presses used by our newspapers and publishers, and whatever material came in through our ports. But nowadays people connect to the internet and they can access pretty well whatever they want.

This, of course, includes material that you or I probably find pretty unpleasant. Some of it is a little bit harder to find and users will have to be motivated to track it down, but it's very hard to block, as we saw with the example of the video of the Christchurch massacre.

But at the same time most people have no interest in accessing gross material. And while we talk about people being able to go anywhere on the internet and to visit obscure websites, most regular people have a view of the internet that is significantly limited to Facebook, Google, YouTube, Twitter, and other similar sites.

Two classes of users and websites

So we have two classes of users, split into what I call "regular" and "motivated", and we have two classes of websites, the mainstream internet companies that everyone uses and a huge range of much smaller sites.

I'm going to assert, based on my experience and my technical understanding, that we can't meaningfully stop the motivated users from accessing material. There are so many channels and so many mechanisms including encrypted chat rooms, peer to peer file transfers, websites hosted overseas, and of course, virtual private networks that ensure that no one in New Zealand can even see what they're accessing, let alone block it.

At the same time, those mainstream internet companies are rapidly realising that they need to clean up their act and start honouring their own content standards. They're working together, and with governments, on blocking access to images of child abuse and violent extremism. They're starting to refuse to allow white supremacists and neo-nazis to use their platforms. And they're even improving their response to threats, harassment and abuse.

Now, I admit that standards implemented and controlled by the big companies have their own problems for freedom of expression. but these developments, that are already happening, are going to be the ones that really change what material is available to the large proportion of 'regular users' in New Zealand.

Updating the 1993 law

And now to the bill, where into this rapidly changing scene the New Zealand government is introducing some updates to a censorship law from 1993.

It's a law change that seems to ignore what I see as the current problems on the internet – issues such as harassment, abuse, death threats, disinformation, algorithmic radicalisation and extremism, – in favour of trying to set up a barrier to block certain sorts of material.

But is this barrier, are these takedown notices, going to be effective?

It's not going to stop the motivated users, the ones who are actively seeking out information and will use the cheaply available tools to do so. The ones who are connecting to sites overseas who will ignore orders from the NZ government.

It's also going to have very little effect on the regular users. The overlap between the standards of the big companies and our laws are such that none of them are going to be carrying anything worth blocking.

So this is what I mean when I say that I believe the law will be ineffective.

Serious threat to freedom of expression

But you might remember that I also described it as a serious threat to our freedom of expression. How to explain this apparent contradiction?

One of the biggest problems of this bill, which is attempting to establish the legal framework of a highly contentious system, is the absolute lack of detail. It seems that Parliament is going to be asked to pass this enabling bill and then let all the hard decisions be taken in the regulations.

We believe that it's not acceptable to put through such a vague bill with such minimal mandated protections with the view that it will be finished off later.

This is especially true when we look at expansive that legal framework is. It allows an inspector to arbitrarily decide to block or takedown material on "reasonable grounds that it's objectionable" which is hardly a high standard, especially when 'objectionable' is so subjective and context dependent.

And while the explanatory note in the bill refers to the filter only being used for web traffic, the text of the bill has no such restriction and explicitly includes "online applications".

In other words, this bill provides the legal framework that would allow a future New Zealand government to impose whatever sort of overly controlling filtering and blocking system that it desires, merely by changing the regulations.

As such, we believe that this legal framework is an unacceptable threat to our freedom of expression both now and in the future. Because we don't have to only concern ourselves with how this government will use it, but also how future governments will use it.

Perception and reputation

Finally I briefly want to talk about perception and reputation.

I believe we're all aware of the problem of disinformation and conspiracist thinking, based in the belief that our government lies to us all the time. I deal with these people reasonably frequently, and I am sure that passing of this bill will strengthen their paranoia. One of the ways to fight conspiracist thinking is to improve transparency and trust in government, the implementation of the filter will do exactly the opposite, playing into peoples fears that information is being withheld from them.

Secondly, passing this bill will damage New Zealand's reputation around the world as a rights-respecting democratic and open government. This reputation matters to me and I believe it matters to the rest of the country. I want us to be an example of doing it right, not used as justification by other countries who want to impose their own internet censorship.

Recommendations

Normally at this time we'd talk about our recommendations. We did make some detailed recommendations for parts of the bill in our written submission, but really we don't see any value in any of it. Our recommendation is that the bill should be withdrawn.    

I'm now happy to answer your questions.