Well blow me down. I thought Cameron Slater’s and Jason Ede’s investigation of a clearly crippled Labour server was as clear an example of hacking as you could imagine. But the Police has decided that nothing untoward has occurred and are refusing to charge them.
The following is a passage from a letter from the Police to the Labour Party indicating the police would take no further action over Labour’s complaint.
Turning to the matter under point 3, the accessing of the Labour Party Computer. We quested and Mr Barnett subsequently supplied to us technical information regarding the alleged breach and a summary of how the breach was dealt with by Labour Party management at the time it was discovered circa June 2011.
That information has been considered, along with the content of chapter 2 of Mr Hagar’s [sic] book relating to the alleged breach and other material publicly available on the internet e.g. Whale Oil blog posts from 2011.
I am satisfied there is no evidence of criminal offending in relation to the accessing of the Labour Party computer records.
While the matter may raise privacy and ethical issues, these are not the domain of criminal law.
It helps to recall what the complaint involved. Cameron Slater and Jason Ede came across a clearly crippled Labour website and could see the directory structure on a Labour Party server. They elected to choose to have a look around and even downloaded at least one file. This is not conjecture. It is not some far out conspiracy advanced by the left. It was admitted by National’s General Manager Greg Hamilton in 2011. His letter included this passage:
We do accept that one of our staff visited your public website via URL http://healthyhomeshealthykiwis.org.nz and read files that were publicly available …
It appears that he downloaded a file named Labour Newsletter and several compressed files with the view of reading later. In fact the compressed files remain un-opened.
Although he is not named it is clear that National was referring to Jason Ede. And John Key’s statement that he stood by Mr Ede and his actions raises concern about Key’s ethical compass.
The right have claimed repeatedly that because the information was accessible easily via the ethernet no offence has occurred. As for the ethics of this claim Felix summed it up really well in this comment in response to SHG’s claim that it was all in order:
If you leave your door unlocked, the private files in your desk draw don’t suddenly become public information.
The best analogy for what you or Cam or Jason did is that you saw an unlocked door that you know should be locked, entered the house, rummaged through the desk, photocopied any interesting papers to take with you, had a squizz through the family photo albums, and a quick rummage in the knicker drawer.
Oh yeah, and then publish what you found.
And as for the legality of the behaviour this was really thrashed out in this post by Rocky. My personal belief is that it is clearly in breach of section 252 of the Crimes Act 1961. This says:
(1) Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system.
(2) To avoid doubt, subsection(1) does not apply if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.
Clearly the access was without authorisation. Only an idiot with Slater level stupidity would believe that coming across a crippled server provided him with authorisation to access it. And as for (2) because he could access the site to view the web pages did this allow him to have a sniff around the directories and download files? In my view he was never permitted to access the server. All he was permitted to do was receive web pages from the server once he typed in the url. The files were clearly in a different “system” to the “system” from which he could receive the web pages. Otherwise if he has a gmail account he could claim that this permitted him to access every other gmail account that is on the server.
Some commentators have referred to the definitions of “access” and “computer system” contained in section 248. Rather bizarrely they did not apply to section 252 according to the section in the form that it was in at the time. This has been corrected since.
Of course National knew they had done wrong. This is why Ede rejoiced in having a dynamic IP address.
But don’t take my word about the legality or otherwise of what happened. Victoria University Associate Professor of Law Nicole Moreham said this about the suggestion that the intrusion was somehow authorised:
But there are lots of ways such an argument could be refuted. Its success might depend, for example, on how easily Slater and Ede got hold of the information – if a person needed a tip off and/or sophisticated computer skills to get at the donor and supporter lists, it would be hard to argue they thought they were for general consumption.
And what about other indications that the information was not intended for Ede and Slater’s eyes? Might the structure of the website have made this clear? Or the nature of the information itself – a court might say it is obvious, for example, that members of the public weren’t meant to be seeing donors’ credit card details.
There was a further compelling opinion that I remember reading on the NBR that also concluded that section 252 had been breached but it looks like it has been deleted which is a shame really.
This is one of those cases which yells out to be put before the Court so that a decision can be made and the public can be satisfied that justice is being done. Guidance could have been provided on the meaning of the hacking provisions of the Crimes Act. Instead of this we are told in very basic terms that the police do not believe that offending has occurred. And the Government and the political party currently in power get away with a monstrous wrong.
And still Dirty Politics is a blight on our political landscape. Bunji’s description of this decision as a “whitewash” is very appropriate.