KenFiles is 'The Privacy Company' and values the privacy of the users of its services. The company is committed to maintaining industry-leading levels of security and confidentiality of user information and data. However, privacy is not an absolute right and is subject to limitations.
This guidance describes how KenFiles will look to achieve that balance and, in particular, the approach it will generally take to requests in criminal and civil actions against or involving its users. This guidance is aimed at providing transparency to everyone interested in KenFiles's services and consistency in actions.
THIS GUIDANCE IS PROVIDED FOR ASSISTANCE ONLY. IT DOES NOT CREATE ANY LEGALLY BINDING OBLIGATIONS ON THE PART OF KenFiles AND KenFiles BEARS NO LIABILITY WHATSOEVER FOR COMPLYING OR NOT COMPLYING WITH IT, AS IT SEES FIT, AT ANY TIME. ALL LIMITATIONS AND EXCLUSIONS OF LIABILITY SET OUT IN KenFiles'S TERMS OF SERVICE APPLY EQUALLY TO THIS GUIDANCE.
KenFiles reserves the right, unless required otherwise by applicable law, to provide differing levels and categories of information in response to different requests. Persons making a request should first check with KenFiles what information will be available, particularly before applying for a criminal law production order or using civil law procedures to obtain user information or data.
KenFiles may amend, replace or withdraw this guidance temporarily or permanently from time to time as it sees fit. KenFiles will generally try to give advance notice if possible, before changes to this guidance come into effect.
The fundamental privacy-protective design of KenFiles's services underlies KenFiles's approach to law enforcement and takedown requests. This includes user control over the encryption/decryption keys as well as the extent and manner to which their files/folders are shared. In considering any request for user data, user information or action involving a KenFiles user, KenFiles starts from the position that user data and information is private.
This guidance will be publicly available, including by way of publication on KenFiles's website. KenFiles may also periodically publish a summary of requests received and actions taken under this guidance.
Separate guidance provisions will apply to Emergency Response, allegations of Child Exploitation Material, and allegations of Copyright or Other Intellectual Property Infringing Material. These are dealt with separately below.
KenFiles will promptly inform the user of any action taken where practicable provided it considers it appropriate or is required to do so by applicable law and provided it is not legally prevented from doing so by a court or other authority with appropriate jurisdiction.
Applicable law under this guidance is New Zealand law. However, KenFiles may, if it chooses to do so, without being obliged to do so, and without submitting itself to any other jurisdiction's law or courts or tribunals, consider requests made by and assist non-New Zealand law enforcement authorities and civil claimants in whole or in part. It may decline to do so for any reason or no reason while being guided by the Principles detailed above.
The provisions in this section apply to all criminal law enforcement and civil information and takedown requests other than those for Emergency Response, alleged Child Exploitation Material, alleged Copyright Infringing Material or alleged Other Intellectual Property Infringing Material (for which, see below).
Other than as set out below in those specific situations, KenFiles will generally only take action when required to do so by applicable law or a court or law enforcement authority with appropriate jurisdiction, although it reserves the right to do so at any time and for any reason or no reason, as set out in its terms of service. For criminal matters, this generally means a 'production order' as per Subpart 2 of Part 3 of the Search and Surveillance Act 2012 is required rather than simply a formal or informal request for information and/or action. For civil matters, this generally means a court non-party discovery order or, if that is not available, a witness summons, subpoena or agreed affidavit or statement of facts. Persons making civil requests should strictly comply with the New Zealand District Court or High Court Rules.
The information to be provided or action to be taken by KenFiles shall be as specified in the relevant law or order, subject to KenFiles being technically able to provide that information or take that action. As noted above, persons making criminal or civil information requests should contact KenFiles first to see what information may be able to be provided.
This is defined as a situation where, in the expert judgement of a senior officer of the New Zealand Police or similar law enforcement officer or authority acceptable to KenFiles, KenFiles has written assurance that the person making the request has valid reasons to believe that disclosure or action is necessary to prevent or lessen an imminent and serious threat (as defined in section 2(1) of the Privacy Act 1993) to:
- public health or public safety;
- the life or health of an individual or individuals
and where the person giving such assurance confirms in writing that the threat is of such imminence that there is not time to obtain a production order or other court order.
If satisfied as to the above, KenFiles may in its discretion accept a request in such situations in good faith. In doing so, KenFiles will be relying on the assurances given by the person making such request and will look to them and their organisation to cover any costs, damages, penalties, compensation or other liability should that assurance turn out to be incorrect or wrongly given for any reason.
The information to be provided or action to be taken by KenFiles shall be as specified by, and agreed with, the appropriately designated officer.
KenFiles will provide the New Zealand Police and other agencies approved by KenFiles with the mobile phone number and email address of contact person(s) who will act on behalf of KenFiles in an emergency response situation.
KenFiles does not condone, authorise, support or facilitate the storage or sharing of objectionable material as defined in section 3 of the Films, Videos, and Publications Classification Act 1993. KenFiles will act under the General Guidance set out above in respect of all objectionable material and reserves the rights set out in its terms of service to take down or disable access to such material as it sees fit.
However, KenFiles views child exploitative material as defined in sections 3(1A) and 3(2)(a) of the Films, Videos, and Publications Classification Act 1993 as worthy of special treatment.
Where, in the judgement of an Inspector of Publications of the New Zealand Department of Internal Affairs, Censorship Compliance Unit or similar authority acceptable to KenFiles, KenFiles receives written assurance from that person that he or she has valid reasons to believe that disclosure is necessary to assess or gather evidence in relation to an active or proposed investigation involving child exploitation material, KenFiles will take such action and make such disclosures as it may agree in its discretion with the person making such request.
In taking any action in respect of alleged Child Exploitation Material, KenFiles will be relying on the assurances given by the person making such request and will look to them and their organisation to cover any costs, damages, penalties, compensation or other liability should that assurance turn out to be incorrect or wrongly given for any reason.
Users are warned in KenFiles's terms of service and when using the service they must comply with all laws including copyright and other intellectual property laws. This includes, but is not limited to, a warning when generating a link for sharing files/folders in the File Manager.
KenFiles will publish on its website the information to be provided, and statements to be made by copyright owners or their duly authorised agents/representatives, to notify KenFiles of an alleged copyright infringement.
All copyright infringement "takedown" notices should be made via the specific webform published on KenFiles's website. All requests by other channels, including email, may be returned to sender with a request to use the online form before they are actioned and in any case may not be able to be actioned by KenFiles within the same timeframes as webform requests.
The notice provider of alleged copyright infringement shall be given the option of requesting either removal of link(s) to an allegedly infringing file or removal of all file(s) relating to a specific link/URL.
KenFiles will act on copyright infringement "takedown" notices in accordance with its copyright infringement policy.
KenFiles will act in response to allegations of other forms of intellectual property infringement (e.g. trade mark infringement) in broadly similar fashion as for copyright infringement, reserving to itself the same discretions, rights and protections.
"Takedown" Notices of alleged intellectual property infringement other than copyright infringement, setting out full details similar to those required for copyright infringement "takedown" notices, should be sent to email@example.com.
Where a third party initiates court action against a KenFiles user for alleged copyright or intellectual property infringement and wishes to access information held by KenFiles for that purpose, the General Guidance above applies, i.e. this generally means a non-party discovery order or, if that is not available, a witness summons, subpoena or agreed affidavit or statement of facts. Persons making civil requests should strictly comply with the New Zealand District Court or High Court Rules.