Select committee submitters unanimously oppose a proposal to enable the Government to block sites hosting objectionable content

The Government’s attempt to empower Internal Affairs to block websites hosting content that the Chief Censor has deemed objectionable has been opposed by a range of technology experts and civil liberties advocates at a select committee hearing on Wednesday.

Although they were broadly supportive of the rest of the proposed amendments to the Films, Videos and Publications Classification Act, the experts uniformly condemned the internet filtering proposal.

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“I don’t think we can have a debate about whether this internet filter is good or bad because we simply don’t know how this filter would work. The mechanism is insufficiently described in the bill to give us confidence that it will be effective or appropriate,” technology and society expert Andrew Chen, a research fellow at the University of Auckland’s Koi Tū – Centre for Informed Futures, told the Governance and Administration Select Committee.

“Furthermore, social licence issues have not been sufficiently mitigated. Power is being taken away from Parliament and the people and given to the Department of Internal Affairs to design, develop, approve, implement and ultimately operationalise the internet filter.”

Chen said the vagueness and lack of safeguards in the legislation gave him no confidence that a poorly-designed internet filter, prone to misuse, could be stopped by civil society. He said he had advised DIA to remove the internet filter portion of the bill when consulted on it in 2019 and that remained his recommendation to the select committee.

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Curtis Barnes, research director at the Brainbox Institute, told the select committee that too much was being left up to DIA.

“Just to be clear, the matters that are being left to regulation about the censorship filter are what it will filter – what websites, what information – how it will do it at the technical level, what governance arrangements it will have, whether it will have any reporting arrangements and what those should be, whether the system should have any review process or rights of appeal and what they should be, all matters concerning the relationship between the ISPs and the electronic system and any data security and privacy provisions,” he said.

“That is what Parliament is giving to the executive to decide.”

The Department of Internal Affairs, which helped develop the legislation and would be empowered to block websites if the bill passed unaltered, was recently at the centre of a breach of private data. An employee left a folder with the personal information of 16 people who had submitted on the internet filtering bill on public transport. The Privacy Commissioner was notified of the incident.

Anjum Rahman, of the Inclusive Aotearoa Collective, said DIA shouldn’t be responsible for enforcing classification decisions and this power should rest within the Office of Film and Literature Classification.

Other speakers said the internet filters would not be effective. Former Green Party MP Gareth Hughes, who spoke in his capacity as a private citizen, said those most interested in viewing objectionable content could circumvent the filter.

“The fact is that it’s still going to be ineffective. Even if an objectionable ruling is made, people are going to bypass it and access this material,” he said.

“In fact, what you’ll likely see is more people actively trying to find this material. We saw it with the Censor’s case of censoring the teen literature book Into the River which actually drove people to find it.”

Thomas Beagle, of the NZ Council for Civil Liberties, agreed.

“We can’t meaningfully stop the motivated users from accessing materials. There’s just too many channels and too many mechanisms, including encrypted chat rooms, peer-to-peer file transfers, websites hosted overseas and of course Virtual Private Networks [VPNs], to ensure that no one in New Zealand can even see what they’re accessing, let alone block it,” he said.

Filter’s future unclear

It was unclear how the select committee received the testimony. The committee is chaired by National’s Barbara Kuriger and has another National MP on it, but Labour holds a majority with the other three members of the committee. Labour is the only party which supported the bill at its first reading, with the Opposition, Te Paati Māori and the Greens voting against – largely in opposition to the internet filtering part.

In February, new Internal Affairs Minister Jan Tinetti told Newsroom she was open to changing the bill to provide more safeguards around the internet filter or removing that section entirely.

“When I first came in as minister and took over this bill, I had the option of discharging the bill or seeing it through. Looking at the urgency around the other parts of the bill, I was quite convinced that it needed to go through to select committee,” she said.

“The filter area is [one] I absolutely anticipated would come through and be a big part of the discussions at select committee. I am very open to looking at further shaping the work around the filtering system and hearing what’s been said.”

While Jacinda Ardern said she thought there were sufficient safeguards, she too indicated openness to changes.

“We’ve used these systems specifically before on child pornography, so there’s a framework there. But again, you know, going through a proper process will allow us to get input as to whether or not people feel like those appropriate safeguards are in place,” she said.

The filter was designed to fill a legal gap highlighted by the aftermath of the March 15 terror attack. Then, Internet Service Providers (ISPs) took it upon themselves to block access to websites where the footage of the terror attack was freely available. DIA officials helped coordinate these efforts but were legally unable to ask for specific sites to be blocked.

This led to an ad hoc and confusing censorship effort, involving a Google spreadsheet and email hosts’ spam filters deleting missives with lists of URLs to be blocked.

Afterwards, ISPs asked the Government to create a framework to enable it to take part and guide censorship decisions. While New Zealand already operates a filter for child sexual exploitation content, this is voluntary for ISPs to sign up to. It also has an oversight board which vets the links to be blocked to ensure there is no abuse of the filter.

The new legislation would enable the creation of a mandatory filter and has few requirements for oversight. The filter could only be used to block access to content deemed objectionable by the Chief Censor – that includes anything that “describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good”.

Other parts of the bill, which were supported by most submitters with only technical amendments suggested, would make it a crime to livestream objectionable content and allow the Government to issue takedown notices to websites hosting such content.

Marc Daalder is a senior political reporter based in Wellington who covers climate change, health, energy and violent extremism. Twitter/Bluesky: @marcdaalder

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