An Open Letter on the Hong Kong High Court Injunction on Internet Speech

The Hong Kong Government recently received injunctive relief from the High Court for the purpose of combating “promotion, encouragement and incitement of the use or threat of violence via internet-based platform or medium” (Press Release). As a number of Hong Kong barristers have pointed out, existing laws already covered related offenses for incitement to violence. The base change here is that the Internet is called out specifically as a medium, rather than being included in the general application of the law. The court went further and called out two specific platforms, LIHKG and Telegram, as examples of the types of media at issue. This was coupled with language to restrain persons from:

(b) Assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorizing others to commit any of the aforesaid acts or participate in any of the aforesaid acts.

The language of this order is both vague and worryingly broad.

Given that the primary purpose of this order is to restrain speech on the Internet, any system which supports the operations of the Internet could be read as infringing, no matter who operates it or what its general goal.

• An ISP which carries traffic that reaches these systems could be held to be assisting it;
• A security system that prevents Denial of Services attacks against the networks where these are located could be held to be aiding it;
• A provider of third-party login confirmations could be held to be authorizing it.

The Internet is built of cooperating networks working together to create a larger whole. It is also built of a number of network protocols, devices, and security systems which are necessarily atomic in their focus on specific activities. Routers directing traffic, OAUTH federated login providers confirming identities, and content distribution network services protecting against DoS attacks are building blocks for many different types of services. These mechanisms are general purpose, and including them in the scope of this order puts all the services which might build upon them at risk.

That risk is heightened by the implications of what it would take to effectively enforce this order. Like most modern Internet protocols, these systems use encryption to protect the confidentiality and tamper resistance of the communication as it transits the network. The Internet Architecture Board has recommended since 2014 the use of pervasive encryption (Confidentiality Statement) as a key measure to maintain trust in the network.

For the Hong Kong government to effectively enforce this measure, it would have to break that encryption or require that service providers provide confidential data from end systems to the government for assessment of this intent. The amount of unrelated sensitive data that would be thus exposed would include health records, financial details, deeply personal exchanges, and potentially even government communications that crossed these networks. Since traffic passing through Hong Kong or using these platforms is not limited to that originating and terminating in the territory, the implications of these risks is similarly broad. As the IAB noted in a recent statement (Unintended Consequences), broad or excessive intervention in Internet infrastructure and practice can erode the basic trust needed for the Internet to serve its purpose.

The Internet provides an extraordinary means of communication in part because so many of its systems operate independently of the content carried or the territories through which the packets pass. By calling that into question, I believe the High Court damages the Internet and, in doing so, hurts the economy and people of Hong Kong.

We urge the High Court to reconsider the breadth of its injunction and to consider carefully the implications and risks of any successor.

Respectfully,

Dr. Ted Hardie
Member, Internet Architecture Board
Alumnus, New Asia College, Chinese University of Hong Kong

Dr. Stephen Farrell
Member, Internet Architecture Board
Trinity College Dublin, Ireland.

Jeff Tantsura
Member, Internet Architecture Board

Martin Thomson
Member, Internet Architecture Board