NZ's anti-troll law: gift to trolls, bad for free speech

If you set out to create the platonic ideal of a badly considered anti-trolling bill that made a bunch of ineffectual gestures at ending harassment without regard to the collateral damage on everything else on the Internet, well, you'd be New Zealand's Parliament, apparently.

The Harmful Digital Communications Act has been under consideration for three years, but despite a long debate, the Parliament elected to create restrictions on all online speech — from private arguments to videos of police brutality — that would never be countenanced in the offline world.

HDC's takedown regime takes all the worst elements of DMCA takedowns — someone complains to a hosting company or ISP and they remove material nearly automatically, with hardly any consideration of whether the complaint passes the giggle-test — and makes them even worse. Under the new system, trolls who mass-dox or denial-of-service attack a victim could make all of her online presence disappear with impunity, and face no penalties at all for abusing the procedure. If the victim did manage to attempt a counterclaim to keep her online life intact, it would require that she disclose her home address and other details to her attackers.

The HDC Act magnifies the well-documented flaws of the DMCA into the perfect heckler's veto. This is an ideal tool for a coordinated harassing mob—or simply a large crowd that disapproves of a particular piece of unpopular, but perfectly legitimate speech. Moreover, if the original user misses the 48-hour window to respond to a takedown order, then they will have no legal avenue to restore their deleted work.

It's worth considering exactly who might be most likely to miss that 48-hour deadline. Certainly, a vulnerable user facing hundreds or thousands of coordinated, malicious complaints might find herself quickly overwhelmed. Another type of user who might be reticent to serve a Section 20 counternotice is one who would choose not to share much personal identifying information with their hosts, and is therefore more difficult to contact by the intermediary. Vulnerable classes of Internet speakers often do this so as to limit the risk of being doxxed—they are rightly suspicious of providing third parties like hosting intermediaries with personal details, out of fear that the intermediary might accidentally reveal that to attackers, so they use pseudonymous accounts or otherwise hide their real identities. These users may not be reading the throwaway email or other contacts details they provided:if they provided any at all.

Section 20 has another flaw for this particular class of vulnerable user. The HDC Act's takedown orders and counter-notices require personal information, both from the complainant and the original publisher. A user attempting to keep his content up must hand over his "[name] and a telephone phone number, a physical address, and an email address" to the ISP. The user must also specify whether that data should be handed over to complainant. A user who checks the wrong box by mistake may find her attempt to restore her account results in personal details being handed over to the person trying to delete her works from the Internet.

New Zealand's Harmful Digital Communications Act: Harmful to Everyone Except Online Harassers
[Danny O'Brien/EFF]

(Image: Self,
Daniela Vladimirova, CC-BY