Labour will repeal disconnection

Last month, at NetHui in Auckland, Labour's Clare Curran promised that Labour would repeal the hated "skynet" law if they became government. Today, they've gone one better, promising to repeal it within 90 days of taking office, and review the entire Copyright Act to drag it kicking and screaming into the 21st Century. The message is clear: "Vote Labour to kill Skynet".

This is great news, and it shows that Labour is listening and recognises that the law as it stands is unjust. But there's more - they also recognise that internet access is a vital part of modern society, and a human right:

Internet access is not just a utility or essential service but also enables the provision of social and family connections across distances and time zones, education and work opportunities. Therefore all New Zealanders should have the ability to access the Internet and Labour will work to ensure they do.

Labour affirms that the fundamental human right to impart and receive information and opinion necessarily includes the ability to access the Internet in order to give practical effect to the right in today’s world.

(Emphasis added)

In the modern world, disconnecting people from the internet effectively prevents them from speaking. Its the technological equivalent of cutting out our tongues. No society should impose such barbaric, disproportionate and unjust punishments. We don't do the equivalent for stealing bread anymore; why should we do it to protect the interests of rich foreigners clinging to an outdated business model?

Why New Zealand agreed that disconnection violated international law

Back in April, the National government abused urgency to ram the final stages of a guilt by accusation copyright law - including the option of mandatory disconnection from the internet - through Parliament. Then, in June, it surprised us all by joining with other nations on the international stage to declare that such laws violated international law and basic human rights standards. Then, the next day, it denied it had approved any such declaration.

What was going on? The Creative Freedom Foundation attempted to get to the bottom of things using the Official Information Act, asking MFAT for documents and emails relating to the endorsement. MFAT naturally withheld most of the relevant data - it apparently being harmful to our international relations if the government is honest with its own citizens about what it is up to. But the document it did release shows that they were informed of the declaration by our permanent mission to the UN, who has given support in principle on the basis that

In line with your instructions this would appear consistent with our traditional backing of freedom of expression within the broad context of civil and political rights

Clearly, that wasn't overruled - and rightly so. But again, it leaves the government in an odd position of supporting "freedom of expression within the broad context of civil and political rights" abroad, but not at home. If it really supports those principles, then it needs to repeal this law. Otherwise, we're simply acting like hypocrites - a disaster for a small country pursuing a mana-based foreign policy like us.

Speaking out of both sides of our mouth

Yesterday, I noted that the New Zealand government had endorsed the report of the UN Special Rapporteur on the right to freedom of expression which found that disconnection from the internet is grossly disproportionate and a violation of international law. Today, Labour's foreign affairs spokesperson Maryan Street asked in parliament whether this meant that they would be repealing the disconnection provision. The government gave a surprising response, denying that we had endorsed the statement.

Except that we have. Here's the statement, and here's the preamble to it:

I have the honor of addressing the Human Rights Council on behalf of

Austria, Bosnia, Botswana, Brazil, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Djibouti, Guatemala, India, Indonesia, Israel, Japan, Jordan, Lithuania, fmr Yugoslav Rep of Macedonia, Maldives, Mauritius, Mexico, Moldova, Montenegro, Morocco, the Netherlands, New Zealand, Norway, Palestine, Peru, Poland, Senegal, South Africa, Serbia, Sweden, Switzerland, Tunisia, Turkey, Ukraine, the United States, Uruguay

Our name did not get on that list by accident. New Zealand diplomats will have formally agreed to be on it, and formally agreed to the exact text of the statement being made in our name. And MFAT will have the documents to prove it (though our chances of extracting them via the OIA are about zero, given MFAT's dislike of democratic oversight).

Finlayson has now put those diplomats in a difficult position. Because of his wriggling to avoid domestic political embarrassment, their word can no longer be trusted. And, by extension, neither can ours. On the international stage, we are now speaking out of both sides of our mouth, not practicing what we preach. And quite apart from being dishonest, this undermines our entire mana-based foreign policy.

NZ government agrees disconnection violates international law

Back in April, the New Zealand government abused urgency to ram through a "three strikes" guilt by accusation IP regime which would see people disconnected from the internet for repeat violations. The law was indirectly criticised by the UN Special Rapporteur on the right to freedom of expression, who declared that such regimes were grossly disproportionate and a violation of international law. And now, the New Zealand government has endorsed the Special Rapporteur's report:

Michael Geist notes that on Friday, Sweden made remarks at the UN Human Rights Council that endorsed many of the report's findings, including the criticism of "three strikes" rules. The statement was signed by 40 other nations, including the United States and Canada. The United Kingdom and France, two nations that have enacted "three strikes" regimes, did not sign the statement.

"All users should have greatest possible access to Internet-based content, applications and services," the statement said, adding that "cutting off users from access to the Internet is generally not a proportionate sanction." It also called network neutrality and Internet openness "important objectives."

Interestingly, the report is signed by New Zealand, which enacted legislation in April that sets up a special Copyright Tribunal for expediting file-sharing cases. The penalties available to the New Zealand government include Internet disconnections of up to six months.

So, does this mean that the government has realised it is wrong on disconnection? if so, it should introduce a repeal bill immediately. Alternatively, they could just be hypocritically trying to have it both ways, criticising these laws while still keeping them on the books here. But they'd never do that, would they?

Disconnection violates international law

Back in April, the government abused urgency to ram the final stages of a guilt by accusation through Parliament. The law includes the option of mandatory disconnection from the internet, though this provision must be brought into force by an Order in Council. Now, the UN Special Rapporteur on the right to freedom of expression has declared such laws to be a violation of international human rights norms.

The full details are in a report [PDF; UN doc A/HRC/17/27] by the Special Rapporteur to the UN Human Rights Council. After talking about the importance of the internet to freedom of expression, and some of the attempts by governments to control it, the Special Rapporteur concludes:

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.

This will matter. Our Supreme Court pays attention to UN human rights norms in interpreting the Bill of Rights Act (which is explicitly designed to implement them). So, the bar just got raised on disconnection. Which hopefully will mean that the government never implements it.

Its law

The Copyright (Infringing File Sharing) Amendment Bill passed its third reading this morning. Which means that from September 1, its guilt by accusation.

This is an appalling law, passed by an appalling process. The level of ignorance and hypocrisy shown by our legislators while doing it ("the internet is SkyNet!" "File sharing is illegal, now I'm off to listen to some music my friend pirated for me!") is just icing on the cake. People are rightly angry about it; the question is what we can do with that anger to force change.

The government is solidly in the pockets of the copyright mafia on this, so I think the best option is to focus on Labour. They voted for the bill as part of a compromise which saw the implementation of the disconnection penalty - which they oppose - being delayed. Hitting them hard and demanding a solid commitment to repeal not just disconnection but also guilt by accusation is the way to go. Meanwhile, I think the best short-term action is to look at how parties voted last night (National, Labour, ACT and the Maori Party for, the Greens, Hone Harawira and Chris Carter against), and vote accordingly in November.

The return of guilt by accusation

The government is abusing urgency again, this time to ram through the final stages of the Copyright (Infringing File Sharing) Amendment Bill. The bill repeals the (never implemented) section 92A regime, which provided for guilt by accusation, and replaces it with a new regime providing for... guilt by accusation. An SOP from the government softens the language here a bit, so that an infringement notice now merely creates a presumption of guilt rather than being conclusive evidence of it, but that's not much better. it also makes little sense. As IP lawyer Rick Sherra points out, there's no logical connection between the ability to fill out a form correctly, and the material in it actually being true.

The Bill of Rights Act affirms that everyone has the right to natural justice. This law would deny that, replacing it with a stacked system biased in favour of the accuser. And when overseas experience [PDF] has shown that a high proportion of infringement notices are issued in bad faith, by people with no claim to hold copyright or even by businesses targeting their rivals, such a system is actively dangerous, and a recipe for injustice.

The bill also still provides for disconnection as a penalty, albeit with a delayed implementation. As I've argued before, this is a disproportionate penalty, and an active denial of citizenship, the electronic equivalent of cutting out our tongues.

Parliament should not be passing this law, and it especially should not be passing it in these circumstances, under urgency granted for a bill to rebuild Christchurch. Sadly, our government seems intent on compounding injustice with deceit.

Delaying disconnection

The Commerce Committee has reported back [PDF] on the Copyright (Infringing File Sharing) Amendment Bill. The good news is that they won't be immediately introducing disconnection from the internet as a penalty for file sharing. The bad news is that they will retain the option to introduce it at any time by Order-in-Council.

This is unacceptable. As I have already pointed out, disconnection is a disproportionate penalty. The internet is no longer a form of entertainment - it is as essential to everyday life as the telephone. Without it, we can't read the news, pay our bills, talk to our friends and family, or participate in society. Disconnection is thus an active denial of citizenship, akin to cutting out our tongues. We don't do it for scammers and spammers. We don't do the equivalent for telephone fraudsters. So why do it for file-sharers?

(The answer, of course, is that the victims of spammers and scammers and telephone fraudsters aren't a multi-billion dollar global industry which can splash around millions on lobbying. They're just ordinary people. But the law doesn't work for us - it works for the rich corporations instead).

This draconian and disproportionate punishment violates the Bill of Rights Act, not to mention all standards of justice and decency. Even if not immediately implemented, it has no place in our law.

Submit!

The Commerce Committee has called for submissions on the Copyright (Infringing File Sharing) Amendment Bill. Two copies, by Thursday, 17 June 2010, to:

Commerce Committee Secretariat
Parliament Buildings
Wellington

Or you can save paper and use the online form linked above.

The bill creates a three-strikes regime with disconnection from the internet as a possible penalty. This amounts to an active denial of citizenship, and in modern society, it is akin to cutting out our tongues - a clearly disproportionate penalty.

Submitting is easy, and select committees do pay attention. If you're not sure how to make a submission, Parliament has a handy guide in English and Maori here.

Cutting out our tongues

The government has released its proposed replacement for the hated s92A. Its better than the original, in that it provides for some judicial oversight - but it still has disconnection from the internet as a penalty.

That may not sound like much to old politicians - but we live in the 21st century. The internet is now a pervasive part of people's lives, and an essential means of participating in society. It is used for everything from staying in touch with friends and family to work to shopping to political organising to paying your bills and taxes. Without it, I wouldn't be able to do any of those things. Or write this blog.

In a modern, wired society, disconnection amounts to an active denial of citizenship. Its the same as cutting out our tongues. And that is not the sort of punishment any civilised society should be handing out. It should be voted down - and the corporate cronies who proposed it voted out.

Protest against guilt by accusation copyright law!

Creative Freedom NZ has organised a protest against the "guilt by accusation" copyright law tomorrow in Wellington:

When: 12:00, Thursday 19 February
Where: Parliament forecourt
Wear: bright colours, with a black placard.

Please head along and show your support for natural justice.

Correction: Updated time.