When National swept into power last year, pundits described it as a backlash against Labour’s ‘nanny state’. But a little-known project to combat child pornography with a government-run internet filtering scheme may yet pose a genuine threat to civil liberties.
Kiddy porn: it’s a phrase that evokes outrage and revulsion. It invites righteous anger by its very colloquialism; by the fact that a casual, commonplace term exists for such crimes against innocence. There is no equivalent slang for genocide, for religious or political violence. Even as we use the term we acknowledge its ubiquity, and in no place is child pornography more concentrated than the internet.
The internet’s opportunities for anonymous networking have fostered child sex abuse in a way that no other medium could. Since the proliferation of personal dial-up in 1997 the estimated number of illicit images have skyrocketed by nearly 2000 per cent. According to the US Department of Justice more than a million are now in circulation, with a further 200 uploaded each day.
With this in mind, it’s no wonder that New Zealand has toughened its stance on child pornography. The penalty for possession has increased from a $2000 fine to either $10,000 or five years’ imprisonment; the penalty for distribution has doubled to 10. Meanwhile in 2005 Customs officials and Internal Affairs staff helped police make 27 arrests under Operation Tercel, with a further 56 convictions since then.
But the government’s latest broadside – the Digital Child Exploitation Filtering System, due to launch before the end of the year – goes well beyond the scope of investigation. It uses a secret blacklist to restrict public access, and in doing so throws up serious questions about creeping conservatism and the internet’s ambiguous status under existing censorship legislation. But hey, whatever works, right?
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The problem, according to Wellington systems administrator Thomas Beagle, is that it won’t work. Beagle first learned of the scheme back in 2008, through industry contacts and occasional briefs in Computerworld magazine. Soon the sheer scale of the project prompted him to begin an ongoing investigation on his blog.
“As I became more aware of what was happening, I assumed that someone was going to start jumping up and down pointing out the obvious flaws in the plan. That didn’t happen, so I decided that I’d better be the one to do it.”
Beagle’s correspondence with the Department of Internal Affairs confirmed the following: the department was planning to purchase Netclean Whitebox, a program that would redirect users’ URL requests to a government-owned server and check them against a database of banned pages. Any matches would be denied and the user would be warned.
The service would be offered free of charge to internet service providers, but there would be limits to what it could do: the software would not filter email, instant messaging, peer-to-peer file sharing or encrypted web traffic. Even as the scheme was announced in July, Internal Affairs’ deputy secretary Keith Manch warned that it was “not a silver bullet that [would] prevent everyone from accessing any sites that might contain images of child sexual abuse”.
But far from being a fix-all, Beagle is doubtful whether the scheme will fix anything. Few, he says, are so gormless as to Google “sexy naked children”, and the vast majority of child pornography is in fact transmitted socially – by email, peer-to-peer and all the rest of it. Even those audacious enough to seek out paedophilic paysites can simply re-route their requests via a proxy server. All in all, he says, the filtering is “trivially easy” to bypass.
“How do you think all those people in Iran are getting their information out past a much more comprehensive filtering system? They’re using commonly available tools like Tor, MyEnTunnel, copssh, and others to work around them.
“Filtering might stop casual users, but it isn’t going to stop anyone who’s motivated and can read a how-to article.”
So maybe it doesn’t work perfectly, but surely it’s still better than nothing. Or is it?
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Well, perhaps not. Internet filtering has run into all sorts of problems overseas, since a blacklist can only work effectively if its contents are concealed from the public. In Iran, China and Thailand, blacklisting has been used for overtly anti-democratic purposes, but even ostensibly liberal societies have been affected by overzealous blacklisting. The Australian Communications and Media Authority’s blacklist has been found to include euthanasia and anti-abortion campaigns, straight and gay pornography, a handful of small businesses and Wikileaks, an anti-censorship website which hosts details of various countries’ blacklisting schemes. Already there is some confusion over the scope of New Zealand’s scheme – while both Manch and Internal Affairs minister Nathan Guy have stipulated the list will focus “solely on clearly objectionable images of child sexual abuse”, an email from the department’s communications spokesperson Trevor Henry tells a slightly different story:
“The Department confirms that the scope of the filter will be confined to websites carrying images of children being sexually abused but there may be circumstances when a website that contains text files might be blocked. For example, an instructional manual for child abuse or a diary relating to the abuse of an actual child might be blocked.”
No doubt textual accounts of abuse are just as objectionable as photographic ones, but it’s not a far cry from there to blocking fictionalised accounts, illustrations and so forth, and there can be no accounting for the moral panics or whims of future governments. Such schemes therefore pose a serious threat to civil liberties and freedom of speech – even when administered by democratic governments.
In New Zealand the grunt-work of maintaining the blacklist – already some 7000 entries – has been delegated to Internal Affairs’ censorship compliance unit. Additions to the list will require sign-off from at least three of the department’s inspectors or police officers, and the full list will be manually reviewed each month. So far, so good. But after two years of development it seems little headway has been made with external oversight – the crucial factor in ensuring the filter sticks to its original purview.
The project’s draft code of practice, posted on the Internal Affairs website last week, makes reference to an “independent reference group”, but says nothing of who these members are, how they will be appointed, how often they will meet or how they are to verify the blacklist’s appeals process – which is, needless to say, another of the department’s in-house operations. As the code itself says, “continued public support for the [project] requires that the operation of the system be as open to public scrutiny as possible.” But scrutiny in turn requires public awareness, and the pall of secrecy that surrounds the scheme stands in stark contrast to the free and open debate that has taken place in the political and public discourse elsewhere.
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The issue of internet filtering and its impact on civil liberties has been hotly debated in the Australian senate, where the Labor government is trying to drum up support for a bill that will impose mandatory filtering for the country’s internet service providers. But whether or not one objects to such legislation, its discussion in the political arena enshrines the most important civil liberty of all – the right to have one’s objections heard. Yet in New Zealand the approach has been far less scrupulous.
No matter how compelling the case may be for imposing internet filtering in New Zealand, the fact remains that as yet there is no legal framework for doing so. While electronic data is covered under the Films, Videos, and Publications Classification Act, websites themselves aren’t subject to review by the Office of Film and Literature (largely because personally vetting the entire internet would be an impossible task, and the political fallout in Australia has curtailed any attempt at legislation here). But while there are no laws requiring internet filtering, both Labour and National governments have operated on the basis that there are no laws against it either. Both parties have allowed the department to court ISPs into adopting a state-run filtering scheme while fudging the issue in public.
Two days before Labour lost the 2008 election, IT minister David Cunliffe assured reporters the government had no plans to implement compulsory filtering of internet connections. Perhaps he was referring to Labour’s polling rather than policy, but at the time Internal Affairs was already trialling the filtering software with Ihug, Watchdog, Maxnet and TelstraClear. More recently, Cunliffe’s successor Steven Joyce told the National Business Review in March that the government had been following the filtering debate in Australia, but had “no plans to introduce something similar here”.
“The technology for internet filtering causes delays for all internet users. And unfortunately those who are determined to get around any filter will find a way to do so. Our view is that educating kids and parents about being safe on the internet is the best way of tackling the problem.”
But just eight weeks later the Internal Affairs budget for the 2009/10 financial year showed an extra $617,000 allocated to “censorship enforcement activities”, including $150,000 to purchase Netclean Whitebox. Joyce’s office has since declined requests for comment.
To date the Department of Internal Affairs has convinced Vodafone, TelstraClear and Maxnet to adopt the scheme ‘voluntarily’ – although individual users can only opt out by taking their business elsewhere. Orcon, Slingshot and Natcom have all rejected it, but Telecom has yet to announce a decision – a make-or-break for the scheme, given that it represents nearly 60 per cent of the market. Should Telecom choose to adopt, no less than 93 per cent of the country’s internet users would be enlisted: not compulsory filtering per se, but something that looks a hell of a lot like it.
The next few months will be critical for the future of New Zealand’s digital and political landscape, with the code of practice, appointment of overseers and final yea-or-nay of Telecom still to come. Perhaps the project will make a huge difference in the fight against child sex abuse; perhaps not. But if censorship is predicated on good faith and transparent processes, then the case for filtering in New Zealand is a poor one indeed.
