Crimes Amendment Bill

CAB #6, Telecommunications Bill, Digital Copyright Discussion Paper

CRIMES AMENDMENT BILL #6 | DIGITAL COPYRIGHT DISCUSSION PAPER | TELECOMMUNICATION BILL

InternetNZ
(The Internet Society of New Zealand Inc.)
Level 4, Hibernian Building
89 Willis Street
PO Box 11 881 WELLINGTON
exe.dir@isocnz.org.nz

MEETING WITH HON PAUL SWAIN, MP
MINISTER OF INFORMATION TECHNOLOGY

SEPTEMBER 19 2001

1. Crimes Amendment Bill #6

• Section 2.5.1 (2) - Denial of Service

InternetNZ is concerned that the new clause goes too far and criminalises legitimate activity such as an ISP taking down their system in response to a Denial of Service (DoS) attack . We believe that the following terms need clarification:

• "without authorisation" - most ISPs will not have any explicit terms of trade which allow them to shut down in the face of a DoS attack or for any other reason. "Authorisation" needs to mean express *or implied* authorisation.
• There should be an exception for "legitimate" activity (e.g. "provided that nothing in this section shall prevent a person causing a computer system to fail or deny service where in the reasonable opinion of that person that action is necessary to prevent damage to, or misuse or malfunction of, that computer system")
• "Deny service" - what exactly is intended? For example, if an allegedly defamatory webpage is taken down by an ISP is this a 'denial of service'?
• 2.5.2 "Making, selling, or distributing or possessing software for committing crime"

InternetNZ is concerned that Clause b." that he or she holds out as being useful for the commission of a crime (whether or not he or she also holds it out as being useful for any other purpose) " risks criminalising those who work to inform clients/public of security concerns.

• 16A Interpretation - "Interception Device"
  InternetNZ remains concerned that the definition remains too broad.
  InternetNZ notes that the Minister has signaled making amendments to at least one of these areas for clarity. As the public has not had the opportunity to make comment since the Bill returned from the Select Committee, we would like to offer assistance if the Minister is introducing a Supplementary Order Paper.

2. Digital Copyright Discussion Paper

InternetNZ is currently undertaking its public consultation process and will be making comment on this paper. We note that issues arising from both this paper and the Crimes Amendment Bill #6 have implications for ISPs in terms of legal liability issues.

ISP liability generally is an area of increasing concern for InternetNZ. Moves overseas and recent cases in New Zealand are starting to indicate that ISPs are to be expected to monitor content for copyright infringement, defamatory material and general illegality. ISPs are then seemingly expected to make decisions as to whether that content may be transferred through, or hosted on, their servers. That gateway role seems inappropriate and is both technically and legally extraordinarily difficult. Any moves to force ISPs to take on such a role will inevitably increase costs and introduce significant access barriers to the Internet.

3. Telecommunications Bill

InternetNZ is concerned that the public has not had a chance to comment on Telecom's final submission to the Telecommunications Bill Select Committee. In particular we are concerned that clauses 23 and 24 contain errors of fact. We have prepared a Position Paper for the Minister. Information in this paper regarding uptake of the Internet in New Zealand corresponds with information published by the Ministry of Economic Development: 

Keith Davidson, Chair, InternetNZ
Sue Leader, Executive Director, InternetNZ
Rick Shera, Ll.B., Chair, Legal & Regulatory Affairs Committee, InternetNZ

© 2001 InternetNZ