Parliament’s government administration select committee has cautioned the industry not to read too much into its mention of possible licensing for ISPs.
But the suggestion has now been floated and cannot be unsaid. Where there is a licence and a code of practice there must, surely, be a threat of removal of the licence for a sufficiently serious offence against the code.
Talk of increased control over ISPs is accompanied by an Internal Affairs Department experiment in co-operation with some ISPs into identifying infringing files at the provider’s server.
The prospect of ISP staff assuming second-string policing duties for which they are untrained must be worrying. If additionally they rely for detection of nasties on software created under a different legal system -- software which, Computerworld has shown, can easily be fooled -- then the prospect of misguided interference with New Zealand’s internet and its users must loom.
To suggest that a negligent ISP might have its licence withdrawn and have to close is the proverbial “worst-case scenario”, but that does not make it impossible. To reiterate, it is the ultimate sanction.
ISPs should not, of course, be above the law. A code of practice, along the lines of the one drafted by InternetNZ, is in place. InternetNZ intends to pay renewed attention this year to getting more ISPs to sign up. The code says “all internet content within New Zealand [should] be subject to the Films, Videos and Publication Classifications Act, 1993”, and includes proposals for appropriately classifying content hosted by local ISPs.
If an ISP does close of course, it's not the end of the world: businesses have survived the collapse of service organisations they relied on. Today’s competitive environment ensures there will usually be another provider ready to take the place of one forced out of business. Just be sure to register your own domain name -- putting on your advertising and stationery a name reflecting your current ISP is risky, as well as bad for a business's image.
Now consider the size of the problem. There have been just over 100 convictions for trading objectionable material, mostly child porn, in more than six years, a rate of 15 to 20 a year. The censorship compliance team at Internal Affairs reckons it’s getting to pretty nearly all the offending that’s going on.
ISPs co-operate with investigating officers and many provide or recommend filter software.
But newsgroups likely to have a high objectionable content are not carried by New Zealand ISPs, and accessing overseas newsgroup hosts through the web would not put a file on the local ISP’s server for any length of time.
The same applies to the prime trading channel for porn and other illicit materials, Internet Relay Chat. The transfer of files in IRC channels is via a “direct computer connection” (DCC) between the sender’s and receiver’s PC and there is no copy of the complete file on the ISP’s server. DIA officers say it is technically impossible and legally dubious to intrude on a DCC channel unless, of course, one of the parties involved is a DIA inspector. That is the way they bring about indictments at present, trapping a trader into sending the inspectors something illegal.
Chief inspector Steve O’Brien says the same about email, in response to a query about inadvertent incrimination of an unwitting recipient of spam and their ISP if and when ISP scanners come into use.
“We cannot and do not intercept emails,” O’Brien says. “If someone complains of receiving objectionable emails from a New Zealand address we would make enquiries with the particular ISP to confirm whether the email was spammed and where it originated from.”
Statements by Justice Minister Phil Goff notwithstanding, there is no evidence that online porn trading is growing in New Zealand. There were 16 convictions in 2002 -- an average year. An upward “blip” was experienced early this year, but such peaks have occurred before and have proved shortlived. Moreover, they may simply reflect more effective policing.
The size of the nut has not changed; indeed it may be shrinking. Is this really the right time to consider buying a bigger sledgehammer?