Open Internet in New Zealand: Status

InternetNZ’s goal is to keep the Internet “open and uncapturable” for New Zealand. This in a world that according to Freedom House (Freedom on the Net 2011):

“...the threats to internet freedom are growing and have become more diverse. Cyber attacks, politically-motivated censorship, and government control over internet infrastructure have emerged as especially prominent threats.”

How are we doing in New Zealand? Quite well actually. But there are a few blemishes that look like blowing up in the near future. An open Internet doesn’t come by accident. And we shouldn't let something that valuable slip away little by little.

The New Zealand situation

The Freedom House report doesn’t cover New Zealand. Reporters Without Borders rates New Zealand as “Good situation” and doesn’t go into further details. Sadly, the OpenNet Initiative’s coverage of New Zealand is out of date but does compare us favourably with Australia.

There are more details in Google’s Transparency Report. This Report provides information about “requests from government agencies around the world to remove content from our services, or provide information about users of our services and products.”

The latest figures are for the six months January to June 2010. During this period less than 10 removal requests were received by Google and it complied with 83% fully or partially. That seems to imply there were 8 requests of which 1 was turned down.

These figures put us in good company, with the likes of Belgium, Canada, Netherlands, Norway, Portugal, and Sweden. Comparatively, Australia had 14 removal requests, 48 from UK, and 128 from USA.

Interestingly, there were no “data requests” from New Zealand. These are requests from the government for “information about Google user accounts or products”, i.e. requests to know the identity of a person.

In case you’re wondering, these numbers cover criminal matters primarily and therefore don’t reflect government requests for takedown of copyrighted material, such as videos on YouTube, and content policy violations.

Human Rights and Openness

I imagine there is some broad correlation between a country’s human rights situation and its Internet openness. On the face of it, without any causal analysis, that seems to be what the various reports indicate.

On that front, the US Embassy gives us a big tick (well, publicly at least!). Of more substance is The right to freedom of opinion and expression from the NZ Human Rights Commission, draft published in October 2010. The report concludes, “New Zealand has an enviable international reputation for the right to freedom of expression. Where the right is infringed, there is strong legal, public and media comment, which tends to influence subsequent legislation, policy and practice.”

The report has a section devoted to the Internet and has this great insight:

“There is a need to develop a human rights framework to apply both to the infrastructure of the internet and to substantive internet-related policy developments. This framework is needed to ensure a consistent approach to new technological developments and the uniform application of universal and indivisible human right standards. The fact that the internet context is new and technologically complex should not deter efforts to scrutinise and apply these standards.”

Blemishes

There are a couple, both actual and potential. All of them are relatively recent which underlines the need for continued vigilance. Extrapolate current trends and there is trouble ahead.

1. DIA’s centralised Internet filter is a real blotch on our open Internet. Not that the intent is bad, after all who is going to argue against fighting horrific child exploitation? The problem is a lack of transparency and disingenuously positioning it as voluntary for ISPs.

A lack of a legislative framework means we are at the mercy of the intentions of the government of the day and officials. That creates a very low barrier for future scope creep. Even more troubling is the lack of open debate prior to its introduction, a “we know best” attitude of extending operational censorship efforts without a policy overlay.

2. The next one is at a stage of skin irritation, a sure sign that a blemish is going to develop. An ugly one at that.

Come 1 September 2011, the amended Copyright Act will come into force that will make it easier, quicker and more lucrative for rights holders to take action against infringing file sharing online.

There are two very unfortunate provisions- presumption of guilt and strict liability for account holders (which means account holders will be fined even if they haven’t done anything wrong or have taken every stop possible to prevent infringement).

Account holders- Mums and Dads; businesses; schools; universities; libraries; retailers offering free wifi- all of these people are going to face enormous risks. To minimise the risks, they’ll have no choice but to either discontinue using/offering Internet access or put in place expensive and intrusive monitoring mechanisms. All in all, a real chilling effect.

And, of course, the threat of Internet account termination hangs over our heads like the Sword of Damocles from any future National-led government.

However, whatever the provocation, there is no excuse to be an online bully. There is a real irony that people launching a DoS (Denial of Service) Attack, such as Anonymous against Parliament and NZFACT, in the name of online freedom are themselves abusing that very notion. The “protectors” themselves become a threat to Internet openness.

3. A blemish-in-progress is the provisions of the Criminal Procedure (Reform and Modernisation) Bill, currently before the Justice and Electoral Committee. Section 216 seeks to create a new criminal liability for ISPs (actually almost anything online is treated as an “ISP” in this Bill, such as blogs) for breach of name suppression by their customers.

As many submissions have pointed out, including that from InternetNZ, making ISPs act as an arm of the State as well as criminally liable when they themselves have done no wrong is a dangerous trend, corroding the open Internet. ISPs will tend to act on allegations of breach, whether they are true or not, as they are not in a position or motivated to determine the truth. That’s the classic chilling effect and a real threat to New Zealand’s open Internet if the Bill gets passed in its current form.

4. The last one is at a stage of skin exposure, i.e. a potential for blemishes rather than definitely so. That’s the situation created by the low data caps that we have every month for our Internet connections.

This creates a real moral hazard for ISPs. It incentivises them to sign sweetheart deals with select content providers to offer unmetered or zero-rated access to their customers. Customers, starved of choice and low data caps, lap up the deals. Which reinforces the ISPs to do more of the same.

That makes the playing field tilted in favour of dominant content providers with deep pockets. It can get so bad that the openness of the Internet itself is threatened. People, knowingly or not, will be diverted or prompted to go to the preferred partner rather than the best destination.

5. A final potential blemish is the terms that New Zealand might accept under the Trans Pacific Partnership Agreement being negotiated in secret. These may be very extreme but more on this some other day.

What you can do

Feel pleased that we live in a generally open society with a generally open Internet. But don’t get complacent.

You can also stand up and be counted as a person or organisation that values an open Internet. One way you can do that is by displaying a badge saying exactly that on your website or blog. I think the InternetNZ badges are good and hope you’ll be a visible supporter of an open Internet.