Call me an anarchist, but when the government signalled last month it would examine our domestic laws with a view to adopting the Council of Europe Convention on Cybercrime I was uneasy. I have an ingrained negative reaction to world government deals like this. Which is odd, because, on the face of it, there is much about the Convention to like - such as catching paedophiles and exposing holocaust denial.
Set up in 2001 by the Council of Europe, a consultative assembly of 47 countries, the convention is the first and only international treaty to deal with breaches of law "over the internet or other information networks." It requires participating countries to harmonise their criminal laws against hacking, copyright infringement, computer-facilitated fraud, child pornography, and other illicit cyber-activities.
As our Ministry of Justice points out, many of New Zealand's legal arrangements already conform to much of the Convention's provisions. In fact we've gone overboard - passing the draconian and unworkable Copyright (Infringing File Sharing) Amendment Act 2011 and about to pass the equally draconian Search and Surveillance Bill which abolishes the right to silence.
As far as the Convention on Cybercrime is concerned, the bill is very good because it allows for "production orders for data" and extends New Zealand's interception warrant system in line with the Convention's terms. To sign up we will likely need to firm up a few more laws involving the "preservation of computer data, in particular traffic data, that exists in some stored form at a point in time, to enable it to be obtained". Plus agree to "mutual legal assistance recognition of certain intercept warrants, production and preservation orders issued by other countries for data from New Zealand".
When comes to catching child pornographers, paedophiles, internet embezzlers and other cybercriminals who, far too long, have operated under the cloak of impunity cyberspace provides, I couldn't agree more with the Convention's aims. By mandating sanctions and making cybercrimes extraditable offences, the Convention will improve deterrence and reduce the number of countries in which criminals can avoid prosecution.
But such international treaties only work if everyone signs up - and those who have signed up so far are, by and large, not the "problem countries" in which cybercriminals operate relatively freely. Then you worry such global laws will undermine values we hold dear, like individual privacy, and gift the state big brother surveillance powers which restrict civil liberties. And do we really want China, or America, for that matter enforcing their laws on our soil?
Ultimately, it depends on what's being enforced. It gets more complicated in the "Additional Protocol" to the Convention, drawn up in 2003, which New Zealand would need to consider when signing up. The protocol concerns "the criminalisation of acts of a racist and xenophobic nature committed through computer systems."
Article 3, for example, requires member states to adopt laws to criminalise the deliberate distribution or making available of racist and xenophobic material through computer systems. It also criminalises threats and public insults transmitted through computer systems against persons that belong to a certain group, those who are distinguished by race, colour, descent or national or ethnic origin, and religion. In other words, hate speech.
New Zealand would likely conform with Article 3 because it does have anti-hate speech legislation under the Human Rights Act. But complying with those provisions online is another matter, as shown by analysis of more than 1,000 online responses to videos featuring New Zealand race furores involving Paul Henry (the Sheila Dikshit incident), the Sir Anand Satyanand incident and Hone Harawira (Hone's email).
According to James Liu, who supervised the research for Victoria University's Centre of Applied Cross-Cultural Research, the findings are "disturbing" and illustrative of a "dark underbelly" in New Zealand society. "The majority of the YouTube comments involved obscenity, and many exchanges involved the kind of passion that would have resulted in violence if the encounter had been face to face."
The defence in such a realm is freedom of speech - a trump card that's regularly pulled in any debate where laws appear to curtail a perceived right to say or think whatever we like. The Convention allows signatories to opt out of the racist and xenophobic articles if they conflict with a country's existing laws regarding freedom of expression.
The opt out clause would give New Zealand an excuse not to adopt Article 6 of the Convention's additional protocol which requires signatories to criminalise the distribution or making available through a computer system material that "denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law."
Bizarre as it may sound, academic freedom in New Zealand, as defined by our Education Act would trump international law - as seen for example in Joel Hayward's 1993 Masters thesis promoting Holocaust denial (some findings since partially retracted) at Canterbury University.
Looking at the big picture, it's hard to disagree with Article 6 of the Convention which seeks to align with the International Criminal Court (ICC) set up to deal with the most heinous of crimes of concern to the international community - namely genocide, crimes against humanity, war crimes, and crimes of aggression. Denial of such acts is a criminal offence in some countries - as British Holocaust denier David Irving found out when he was imprisoned following speeches he gave in Austria in 1989. But many other countries don't follow that sanction - giving primacy to free speech no matter how odious - and perhaps arguing that such views are best left in the sunlight of public scruitiny than sent underground.
But as an illustration of how difficult it is to know when and where international sanctions should stand, imagine what the Convention would look like if international environmental rights lawyer Polly Higgins had her way. Higgins, who was in New Zealand last week, proposes ecocide to sit alongside genocide, war crimes, etc as the 5th international crime against peace in the United Nations and therefore punishable in the International Criminal Court.
She defines ecocide as the "extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished".
Currently, argues Higgins, there is no law to prosecute those who are destroying the planet. "Ecocide is permitted (as genocide was in Nazi Germany) by the government and, by dint of the global reach of modern-day transnational business, every government in the world."
Higgins calls for the criminalisation of ecocide - a sanction of prison time - to ensure company chief executives, heads of banks and heads of state will not conduct business, finance, or support activities that could result in ecocide. "Sixty years ago the tyranny was Nazism. Today it is pursuit of profit without moral compass or responsibility."
Extreme, but you can see what Higgins is trying to do - bring pressure to bear on those who refuse to take responsibility for their damaging actions. Like the Convention, she has a laudable aim - promoting international laws which say freedom has limits. That unbridled freedom - whether in speech, actions or the free market - is anarchy by another name.