Over the past few years, I have noted an increasing trend towards a dichotomy in the NZ Government’s approach to regulating the Internet. On the international stage, the Government has shown admirable understanding of issues such as Internet governance and cyber security. At the same time, domestically the Government has been actively taking steps that demonstrate exactly the opposite.
I have now concluded that at least one of the reasons for this is the Government’s willingness and interest in pushing through ‘novel’ laws without much concern for collateral damage.
The first time the NZ Government’s naive faith in novel laws became evident to me was the Criminal Procedure (Reform and Modernisation) Bill. Section 216 of the Bill sought to introduce a new criminal liability on ISPs for breach of name suppression by their customers. Completely novel, it demonstrated an utter lack of understanding of what ISPs actually do and should do. Fortunately, and in retrospect remarkably, the Government listened and scrapped the proposal at the Select Committee stage.
Then came the 3strikes law aimed at punishing copyright infringements in peer-to-peer networks. Amongst the first few countries to introduce such a law, there was zero evidence that such a law was actually required and that it would actually make a material difference. The law is doomed to fail in meeting its primary aims. Yet the collateral damage is immense. This includes the intangible, long-term cost of a reduction in the respect and trust that New Zealanders have in Government, politicians, and the law.
A third move was to support (or at least, not push back) novel use of US law. The US Government’s allegations against Megaupload are based on an entirely novel move of criminal prosecution for secondary (indirect) liability for copyright infringement. That’s never been done before and never since. Yet the NZ Government seems to have happily gone along with destroying the business and lives of NZ residents.
Ironically, in the one area that a novel approach would actually be useful and welcome, the Government is getting it wrong. Clearly making software ineligible for patents can unleash significant benefits for the NZ IT industry. Instead, the Government has gone for the ‘as such’ words that undo its good intentions.
Cyber bullying move
This brings me to the Government’s novel steps in addressing cyber bullying.
Like most parents, I want to protect my kids from the terrible effects of cyber bullying. I will do my part in making them part of the solution, not part of the problem. At the same time, I recognise that is not enough and welcome effective, proportionate and well targeted steps from the Government.
The Government’s steps will make a positive difference in reducing cyber bullying. I have no doubts about that and welcome them. What worries me, and I hope others, is the collateral damage. The Government’s track record makes me very pessimistic that it will listen or care about the negative impacts of its proposals. Speaking out against the collateral damage should not be seen as opposing the intent of the novel steps. But we don’t benefit from a blind and unquestioning acceptance of the positive without accounting for and minimising the negatives.
At the highest level the Government is addressing the wrong problem. There is no such thing as cyber bullying. The problem is bullying, of which one arm is using digital communications. Worse, I believe the Law Commission has gone so much wider in addressing ‘harmful digital communications’ that there is now a real danger that big, wide-ranging measures are being taken in the name of cracking down on cyber bullying.
When I was working for InternetNZ, I spent a lot of time looking at these issues. Re-reading those concerns, it seems that nothing has changed. What was said then is still valid so I won’t repeat them again. For those interested, the media release summarises the issues; the letter to the Minister of Justice has more details; and the position paper goes into all the issues in depth.
No, actually I am wrong above when I say that “it seems that nothing has changed.” It has got worse. Now we have to hope that there are enough District Judges who understand the Internet, the Web, and the variety of Internet intermediaries. The waterfall nature of the process means that useful alternatives, such as the Australian Government’s protocol approach, have been totally ignored.
The NZ Government’s Dr. Jekyll and Mr. Hyde approach to the Internet internationally and domestically is real and is leading to collateral damage. As to why this dichotomy exists, I will leave it to people who understand politics far more than I do.