Unlawful Publication of Sensitive Material Bill

[Guy]

At the end of the Legal Code, insert the following:

Chapter 11: Sensitive Material

1. Material that is sourced from a secure area must not be published in or moved to a less secure area without the consent of all contributors to the material, or the government official or officials responsible for the material, unless doing so is otherwise authorised by law (such as through a Freedom of Information or declassification process).

Example 1: Threads from private Executive sections of the forums may be authorised for publication by the Delegate or responsible Minister (as is applicable).
Example 2: Threads from the Court may be republished with the authorisation of the Court.

2. Any resident ('the applicant') may apply to the Court to authorise removal of material on the forums that contravenes Clause 1. If the Court concludes that the material does contravene clause 1, it must order its removal, unless it considers there are good reasons not to do so. Proceedings under this clause are to be conducted as a trial against the publisher, with the question being whether the material contravenes Clause 1 rather than the publisher's guilt of any offence.

3. (a) If the applicant considers the need for removal to be urgent, they may apply to the Court for an injunction. The resident who published the material is not a party to the proceedings relating to an emergency injunction, and does not have an automatic right to be heard. The Court must endeavour to deal with the application for injunction within 24 hours.

(b) In deciding whether to grant an injunction, the Court must consider the likelihood that there is a contravention of Clause 1, the harm caused by the material remaining on the forums, and the impact on the republisher's rights under the Bill of Rights if the republication is lawful. It is the intention of the Regional Assembly that the likelihood of contravention be the primary factor, such that material which is very likely to be in contravention would ordinarily be removed.

(c) An application for an injunction must be contained in an application under Clause 2, or be asked for during proceedings under Clause 2. The injunction must specify a date on which it will dissolve, being no later than 14 days following its granting. Any resident may apply for another injunction at that point.

4. A "secure area" is any area to which only a defined subset of residents (such as citizens or government officials) have access. Without limiting this definition, examples of secure areas include sections of the forum, Discord channels and group instant messaging conversations, but does not include private messages. Area A is less secure than Area B if there is a person who has access to Area A but not to Area B.

I said I'll write a thing so I did

It's kinda long but that's because our criminal code really doesn't go into that much detail on most things so I can't rely on existing definitions

 

[Great Bights Mum]

Reposting a conversation without the other party's permission is bad manners, plain and simple. I'm not convinced it needs to be criminalized. Shouldn't shaming be enough?

 

[Caligula]

The mathematician in me says that your final sentence should say an area is less secure than another area if a person who has access to it does not necessarily have access to the other area.

The really pedantic mathematician in me says "other" rather than "more secure" because you shouldn't really use the word secure in the definition of security.

The activist in me would be keen to see a public interest clause or whistle blower's protection for cases where breaking this law reveals more serious wrongdoing.

 

[Guy]

Reposting a conversation without the other party's permission is bad manners, plain and simple. I'm not convinced it needs to be criminalized. Shouldn't shaming be enough?

The ambit of this bill is more stuff like citizen-only discussions, governmental forums etc, that have a security element to them. I reworded it to "defined subset of residents (such as citizens or government officials)", and the bill does specifically exclude private conversations.

The mathematician in me says that your final sentence should say an area is less secure than another area if a person who has access to it does not necessarily have access to the other area.

The really pedantic mathematician in me says "other" rather than "more secure" because you shouldn't really use the word secure in the definition of security.

The activist in me would be keen to see a public interest clause or whistle blower's protection for cases where breaking this law reveals more serious wrongdoing.

I understand your first point, but would it make the actual meaning of the provision any clearer?

As to your second point, it does make the definition clearer and shorter, so I've adopted it I've actually completely reworded it now. I don't agree that the definition was circular beforehand, but that doesn't matter.

Your last point gave me serious pause. There is already a Freedom of Information Act in our Legal Code (see Section 7.5). I would actually not be opposed to introducing an exception if the publication is in the public interest, but I suspect that some people might throw a fit if the Court is the arbiter of that...

 

[Flemingovia]

I do not believe that legislation is desirable or necessary. The number of logs or private messages that have been published over the years can be counted on the fingers of one hand. We already have laws to deal with espionage and the publication of sekret government discussions.

This legislation is so loosely worded and unrealistic that i foresee a legal shitstorm if it is passed as it it. A few examples:

At the end of Chapter 1

Chapter 1 of what? the constitution? the Legal Code? Given the length I am tempted to assume you mean War and Peace.

25. Material that is sourced from a secure area

given your definition of Secure Area given later in the document, this includes many more areas of the forum than might include sensitive information. was that your intent?

26. Any resident who publishes material in contravention of Clause 25... is guilty of a crime.

What crime? I can see the courts tying themselves in knots over this. What is the penalty? What is the offence called?

The resident who published the material is not a party to the proceedings, and does not have an automatic right to be heard.

What about the Bill of Rights? You have said this is a crime: What about Clause 7 of the bill of Rights? Put me on trial without giving me the opportunity to defend myself and you are no better than Insane Power.

The Court must deal with the application within 24 hours.

the court cannot respond to things within a calendar month, let alone 24 hours. What happens when they do not? What happens when someone who has a log removed after 72 hours complains that the court has acted in contravention of this law.

It is the intention of the Regional Assembly that the likelihood of contravention be the primary factor,

the wording of this is very loose, but if i understand you, then bang goes the assumption of innocence.

but does not include private messages.

It is strange that you exclude the one area that most people get most upset about being shared? why?

 

[Flemingovia]

from an Admin point of view, our policy adopted and published HERE (CLICKY) states our position. We act in cases where the TOS/TOU of the forum have been broken, or where real life information has been shared. We will not act to protect in-game personae or structures.

We have not always been good at publicising this policy, and have not always kept to it rigidly, but that is our rule of thumb.

Remember this quote:

[border=#ee4a2d,1,solid]Dance as though no one is watching you; post as though it may one day be read out in court. [/border]​

 

[Guy]

I do not believe that legislation is desirable or necessary. The number of logs or private messages that have been published over the years can be counted on the fingers of one hand. We already have laws to deal with espionage and the publication of sekret government discussions.

This legislation is so loosely worded and unrealistic that i foresee a legal shitstorm if it is passed as it it. A few examples:

I disagree that this is unnecessary due to the existence of espionage. It has a very strict legal definition, and does provide for a mechanism for removal of material until the conclusion of a trial. The rare application of a law does not make it unncessary, as the situations it may be applied in may still be of great importance.

I'll give you an example of why this might be necessary: Suppose that a person posts super-sensitive stuff publicly. Without the Clause 26 power, there is no currently legal way to get that removed. That's a problem if the Admin team won't otherwise intervene.

Your "examples", bar one, exhibit a serious misapprehension of the provisions and of TNP criminal law.

You're right about a single thing: Legal Code needs to be inserted.

25. Material that is sourced from a secure area

given your definition of Secure Area given later in the document, this includes many more areas of the forum than might include sensitive information. was that your intent?

The intent is that all public releases of materials in private forums would be covered (unless otherwise authorised - the bill is quite clear on this.)

26. Any resident who publishes material in contravention of Clause 25... is guilty of a crime.

What crime? I can see the courts tying themselves in knots over this. What is the penalty? What is the offence called?

Have a look at the rest of the Criminal Code. It merely defines crimes. I'm actually going one step further by actually stating "... is guilty of a crime", as opposed to merely defining it.

With regards to penalty, no other crime provides a penalty in Chapter 1. That is a matter for the Penal Code in Chapter 2. I have deliberately not included an amendment to Chapter 2 as I think the question of penalty is one that should be open for debate.

The resident who published the material is not a party to the proceedings, and does not have an automatic right to be heard.

What about the Bill of Rights? You have said this is a crime: What about Clause 7 of the bill of Rights? Put me on trial without giving me the opportunity to defend myself and you are no better than Insane Power.

That is extremely selective and inane quoting. This quote is not from the provision creating the criminal offence. It is about the Court's power to order removal of offending material. No one is to be found guilty of any crime without trial, because you're quoting from the wrong clause.

The Court must deal with the application within 24 hours.

the court cannot respond to things within a calendar month, let alone 24 hours. What happens when they do not? What happens when someone who has a log removed after 72 hours complains that the court has acted in contravention of this law.

That complaint would have to be supported by such an absurd interpretation that no one in their right would agree with it. However, for your benefit, I've clarified it.

It is the intention of the Regional Assembly that the likelihood of contravention be the primary factor,

the wording of this is very loose, but if i understand you, then bang goes the assumption of innocence.

Again, complete misunderstanding of what the clause actually authorises. These clauses have nothing to do with finding of guilt or innocence.

but does not include private messages.

It is strange that you exclude the one area that most people get most upset about being shared? why?

PMs are usually for private matters between individual, not governmental communication.

 

[SillyString]

This bill has a number of flaws.

One of them, but by no means the largest or the smallest, is its premise.

I am not sure if it is worth enumerating the complete list...

 

[Guy]

Alright, we don't want to make it criminal. How about this, then?

At the end of the Legal Code, insert the following:

Chapter 11: Sensitive Material

1. Material that is sourced from a secure area must not be published in or moved to a less secure area without the consent of all contributors to the material, or the government official or officials responsible for the material, unless doing so is otherwise authorised by law (such as through a Freedom of Information or declassification process).

Example 1: Threads from private Executive sections of the forums may be authorised for publication by the Delegate or responsible Minister (as is applicable).
Example 2: Threads from the Supreme Court may be republished with the authorisation of the Court.

2. Any resident ('the applicant') may apply to the Court to authorise removal of material on the forums that contravenes Clause 1. If the Court concludes that the material does contravene clause 1, it must order its removal, unless it considers there are good reasons not to do so.

3. (a) If the applicant considers the need for removal to be urgent, they may apply to the Court for an injunction. The resident who published the material is not a party to the proceedings relating to an emergency injunction, and does not have an automatic right to be heard. The Court must endeavour to deal with the application for injunctin within 24 hours.

(b) In deciding whether to grant an injunction, the Court must consider the likelihood that there is a contravention of Clause 1, the harm caused by the material remaining on the forums, and the impact on the republisher's rights under the Bill of Rights if the republication is lawful. It is the intention of the Regional Assembly that the likelihood of contravention be the primary factor, such that material which is very likely to be in contravention would ordinarily be removed.

4. A "secure area" is any area to which only a defined subset of residents (such as citizens or government officials) have access. Without limiting this definition, examples of secure areas include sections of the forum, Discord channels and group instant messaging conversations, but does not include private messages. Area A is less secure than Area B if there is a person who has access to Area A but not to Area B.

 

[Flemingovia]

This bill has a number of flaws.

One of them, but by no means the largest or the smallest, is its premise.

I am not sure if it is worth enumerating the complete list...

Tsk. Seems that SillyString too may not understand TNP law and contemporary legislative drafting technique.

 

[Crushing Our Enemies]

Sharing information gathered from the TNP government without authorization is already criminalized under espionage, so about 75% of this new draft is already redundant. The rest is simply ill-advised. Also, TNP does not have a Supreme Court.

I know what you're trying to accomplish with this, and I think it's a bad idea, but I recognize that this idea may gain traction with the rest of the citizenry. The current draft is a shoddy disaster, so I will write a more elegant proposal later today, that I believe will accomplish the author's objectives and only modifies one clause of the legal code. I would do it now, but I'm on the toilet.

 

[Darcania]

... I will write a more elegant proposal later today, that I believe will accomplish the author's objectives and only modifies one clause of the legal code. I would do it now, but I'm on the toilet.

It is impossible to separate a cube into two cubes, or a fourth power into two fourth powers, or in general, any power higher than the second, into two like powers. I have discovered a truly marvelous proof of this, which this margin is too narrow to contain.

 

[SillyString]

 

[Crushing Our Enemies]

I should qualify: it will accomplish all of the author's objectives which do not violate the right to free speech.

EDIT: Sorry to those who were expecting this post to contain a draft. I'm on my second bathroom break. Bill is written in my head, text to follow after close of business.

 

[Crushing Our Enemies]

1. Chapter 2, Clause 3 of the Legal Code will be amended to read as follows:

3. Espionage will be punished by summary removal, pending trial, of any illegally shared information posted on the official forum, and suspension of speech and/or voting rights for whatever finite duration the Court sees fit.

Markup:

1. Chapter 2, Clause 3 of the Legal Code will be amended to read as follows:

3. Espionage will be punished by summary removal, pending trial, of any illegally shared information posted on the official forum, and suspension of speech and/or voting rights for whatever finite duration the Court sees fit.

This mirrors the language that allows the delegate to eject and ban for adspam (Which says "Adspam prohibited by the Delegate may be punished by adspam suppression and summary ejection and/or banning from the region.") The key difference is the phrase "pending trial" which necessitates that they must be charged with espionage for their post to be edited. The outcome of the trial could include an order to reverse that edit, if they are acquitted.

A key difference between the effects of this draft and the proposal as it currently stands is that this does not prohibit posts that do not meet the criteria for espionage, or allow such posts to be edited. The reason for that is that prohibiting or editing such posts would be a clear violation of the right to free speech. If someone wants to share an excerpt from a conversation they had with a few other TNPers, the government would be grossly out of line in removing or editing that post.

EDIT: I would like to add that even the more limited language I have offered here is still a supremely bad idea. It allows government officials to decide what's ok to post and what is not, and forces a lengthy trial process in order to have their edits reversed. The potential for abuse is massive. That same problem, of course, is present in Guy's version, except that under his proposal, the only recourse would be a request for review, without the benefit of legal council, presumption of innocence, and standards of evidence.

 

[Guy]

Sharing information gathered from the TNP government without authorization is already criminalized under espionage, so about 75% of this new draft is already redundant. The rest is simply ill-advised. Also, TNP does not have a Supreme Court.

I know what you're trying to accomplish with this, and I think it's a bad idea, but I recognize that this idea may gain traction with the rest of the citizenry.

Espionage requires the information to be shared with a "group or region", rather than merely posted publicly. On its face, this seems to require an active act of distributing information to a foreign entity.

Fixed re: Court. I'm sorry I got 1/9 instances wrong.

Ah yes, the populist masses who don't understand anything will find this worthwhile, but only the old-timers understand how dangerous this is.

1. Chapter 2, Clause 3 of the Legal Code will be amended to read as follows:

3. Espionage will be punished by summary removal, pending trial, of any illegally shared information posted on the official forum, and suspension of speech and/or voting rights for whatever finite duration the Court sees fit.

Markup:

1. Chapter 2, Clause 3 of the Legal Code will be amended to read as follows:

3. Espionage will be punished by summary removal, pending trial, of any illegally shared information posted on the official forum, and suspension of speech and/or voting rights for whatever finite duration the Court sees fit.

This mirrors the language that allows the delegate to eject and ban for adspam (Which says "Adspam prohibited by the Delegate may be punished by adspam suppression and summary ejection and/or banning from the region.") The key difference is the phrase "pending trial" which necessitates that they must be charged with espionage for their post to be edited. The outcome of the trial could include an order to reverse that edit, if they are acquitted.

A key difference between the effects of this draft and the proposal as it currently stands is that this does not prohibit posts that do not meet the criteria for espionage, or allow such posts to be edited. The reason for that is that prohibiting or editing such posts would be a clear violation of the right to free speech. If someone wants to share an excerpt from a conversation they had with a few other TNPers, the government would be grossly out of line in removing or editing that post.

EDIT: I would like to add that even the more limited language I have offered here is still a supremely bad idea. It allows government officials to decide what's ok to post and what is not, and forces a lengthy trial process in order to have their edits reversed. The potential for abuse is massive. That same problem, of course, is present in Guy's version, except that under his proposal, the only recourse would be a request for review, without the benefit of legal council, presumption of innocence, and standards of evidence.

I think that your version affects those rights adversely to a far greater degree than mine, by relinquishing the decision directly to the A-G or even a private citizen. Further, it is far less effective by requiring the restoration of the material should there be a finding of NG for espionage, which may be due to a technicality (such as a missing fault element).

My version requires an actual finding by the Court that the material probably offends Clause 1. Your version would require it automatically once someone is charged with espionage, which could be done (in certain circumstances) by anyone.

Decisions made by a Court to limit rights, following a finding of fact, are considered way superior to unilateral decisions made by the prosecution.

While I'll admit to not having scoured TNP case law on the elements of espionage, I find it hard to believe it does not contain an element of fault (even if mere negligence). The phrase "group or region", as stated above, is also limited. The bottom line is that if the defendant gets off, they get to keep their material on the forum.

Keeping one's posted material on the forum hardly affects the right to innocence. It does so about as much as a (RL) court issuing an injunction against the publication of potentially defamatory material violates the "right to innocence".

I agree that freedom of speech is affected, but if someone gets to limit it, I'd rather it be the Court and not the A-G.

EDIT: I think I've addressed the main points, but I'm actually writing this on my phone Thank you for your comments.

 

[Guy]

New draft, adding the stuff in bold (Clause 3(c) and the last sentence in a clause 2), designed to make clear the temporary nature of an emergency injunction, and ensuring that the publisher is heard during the (non-emergency) proceedings.

 

[Crushing Our Enemies]

Keep on polishing that turd.

 

[SillyString]

So, for the record, I dislike COE's rewrite. It has room for improvement, but the fundamental premise remains flawed (and COE agrees with me), so I'm not going to belabor the point.

But holy wow, I don't really even know what to say about the author's chosen draft. It amounts to nothing less than a bill of censorship - and let us all remember how that played out last time censorship became an issue. Ordinarily, I would try to write an improved draft even of a bill I didn't want to pass, but this one is just so unworkable I can't even.

First of all, you can't put examples in the Legal Code! It's not a narrative document. It doesn't justify or explain itself beyond its written provisions. If you want to codify who can declassify material, do that. If you need to make sure people understand the clause you're exampling, write it more clearly.

Second of all, this layout sucks. Definitions, like "secure area", go on top, not mixed in the middle somewhere, or - even worse - at the end. And the definition is really bad, too - if A has access to areas 51 and 52, and B has access to 51, and C has access to 52, under your definition Area 51 is less secure than Area 52 and Area 52 is less secure than Area 51. This is awful. And lest you think I am making this example up, see literally any ministry headquarters as compared to another.

Including "without limiting" any off-forum area is another huge mistake. For example, not all people have access to the TNP Discord chat. They all could, if they chose to create an account and log in and request access, but they don't. It also excludes banned individuals, even if they were to hold citizenship on the forum. By this definition, someone wouldn't be able to transfer a conversation from a private RA only discord chat to the private RA subforum because one person was an ass on discord and got banned. This despite such a chat being explicitly for that very purpose!

Thirdly - because (did I mention?) this definition is really bad, "private message" encompasses literally everything... and nothing. Is a multi-PM a private message? Is a several person discord chat outside of any server a private message? How many people do you have to add before it becomes not-a-private-message? Is a query on IRC a private message? What about a channel with only two people in it? What about three people in that channel? Again, how many do you add before it's not a private message?

If you want to limit it to anything that only 2 people can access, what if those people discuss important government business that falls under the ownership of a government department? What if they set up a secret area of the forum to discuss in?

This stuff is complex, and hard to get right, and the offered definition falls on its face. Go home, "secure area", you're drunk.

Next, let's dig into the court section. First of all, why is it being limited to TNP residents? In all other cases, we grant the possibility that any individual might have cause to bring something to the court. It's also opened up to "any person" later on, so this inconsistency seems sloppy (if unintentional) or bizarre (if intentional). Oh, and since this is related to the espionage law, it's plausible a non-tnp-resident citizen-of-an-ally could need to contest some material taken from a "secure area" of theirs, except that there are no provisions to address non-TNP material. Whoops?

Back to the court. You cannot have it both ways. The court's powers are limited, explicitly and by design. Either this is a criminal trial - which it must be, for the court to conduct it, as that is the only kind of trial authorized under the constitution - and must be treated as such - or it is not a criminal trial and the court does not have the power to fart in its general direction.

Additionally, the punishment laid out - and make no mistake, it is a punishment, and a restriction of someone's rights - cannot legally be applied without a determination of guilt. The bill of rights protects nations from suffering punishments absent an actual finding of guilt, or an outright TOS violation. Full fucking stop. A criminal trial without a finding on guilt is merely farce.

It is also blatantly unconstitutional for the Legal Code to attempt to strip a guaranteed constitutional right from a nation who - again! - has not even been found guilty of misconduct, but has only been accused. I'm going to quote that part here so everyone can see it:

No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard.

You may not take away their right to be heard. You may not take away due process.

NEXT. It is wholly inappropriate for the court - a body which is supposed to be making unbiased rulings after considering all the facts - to make any kind of preliminary ruling as to the actual facts of a case. This is not a parallel to banning someone from the region prior to conviction in a trial - in that situation, the court can consider in the abstract whether a person with X endorsements and Y influence, if they intended to overthrow the government, would present a genuine threat, without needing to know any of the evidence against the nation in question or anything at all about their intentions. That has no bearing on a case of publishing material, where it is *ahem* material to the facts what the specific content is, and what the facts are regarding its release.

BUT WAIT, THERE'S MORE!

To respond to your reply to COE, your arguments are largely nonsensical.

Espionage requires the information to be shared with a "group or region", rather than merely posted publicly. On its face, this seems to require an active act of distributing information to a foreign entity.

That is neither true "on its face" nor from any legal finding by the court. Releasing classified material publicly on the forum is, in fact, sharing with a group - that group being "the general public". And having been part of the drafting process, I can assert confidently that that was in fact its original intention.

I think that your version affects those rights adversely to a far greater degree than mine, by relinquishing the decision directly to the A-G or even a private citizen. Further, it is far less effective by requiring the restoration of the material should there be a finding of NG for espionage, which may be due to a technicality (such as a missing fault element).

In other words, "your bill is too restrictive of peoples' rights, and also makes it too easy to correct unjustified restrictions on peoples' rights."

I could go on, but need I?

 

[Guy]

My response in Discord:

Examples are often offered in legislation. The example re: Area 51 and Area 52 exactly conforms with my intent. The Discord example for why a person doesn't have access (hasn't joined) is an absurd interpretation. I don't see limiting access to the courts on this issue to residents as problematic, given I can't see how a non-resident's rights would be engaged by such publication.

Removal of a post cannot be considered to be a criminal sanction, ex parte proceedings in emergency situations is appropriate (I haven't actually lifted directly from it, but certainly inspired by certain RL law on similar matters), and there is nothing inappropriate about weighing up the likelihood of success of a case in preliminary proceedings - that's how all courts decide if to issue an injunction or not.

--

I'm really surprised that there's been this much backlash to the procedural side of the law ("Oh no! An injunction to remove a post!") and not to the substantive side.

I actually do think that the reach of the law is too broad now, but that's an essentially unfixable substantive concern, as far as I can tell. The law would authorise the removal of privately-posted material if released publicly, even if they are not sensitive. I was hopeful that someone would pick up on it and offer some suggestions, but clearly our concerns lie elsewhere…

 

[SillyString]

Cite for me please a single instance of TNP law using an example.

Edit:

I'm really surprised that there's been this much backlash to the procedural side of the law ("Oh no! An injunction to remove a post!") and not to the substantive side.

Both are important and both need fixing.

I actually do think that the reach of the law is too broad now, but that's an essentially unfixable substantive concern, as far as I can tell. The law would authorise the removal of privately-posted material if released publicly, even if they are not sensitive. I was hopeful that someone would pick up on it and offer some suggestions, but clearly our concerns lie elsewhere…

That's kind of what we've been saying, yes. There are unfixable substantive concerns, and they sink the whole proposal. That's why I didn't offer a suggested improvement.

 

[Mall]

This would make criminal proceedings against people trying to coup nearly impossible. Full support! Well done Guy, I didn't think you had it in you.

 

[Iraelia]

The mathematician in me says that your final sentence should say an area is less secure than another area if a person who has access to it does not necessarily have access to the other area.

The really pedantic mathematician in me says "other" rather than "more secure" because you shouldn't really use the word secure in the definition of security.

The activist in me would be keen to see a public interest clause or whistle blower's protection for cases where breaking this law reveals more serious wrongdoing.

That's an interesting point. We should have some sort of whistleblower protection clause to ensure that government does not overstep it's bounds.