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Technology and the law – and going after Hager

Written By: - Date published: 10:12 am, October 29th, 2015 - 213 comments
Categories: Abuse of power, Dirty Politics, law, science - Tags: , , , ,

Technology moves much more quickly than the law, throwing up all sorts of questions about privacy, intellectual property, consent, responsibility, ownership, and more. We have one interesting case in point developing in NZ right now, with the recent supreme court ruling that a computer file is “property”. As always, Andrew Geddis is required reading:

Dixon v R: An easy case that raises hard questions

The story of Jonathan Dixon doesn’t raise much sympathy. He was a bouncer at a Queenstown bar back in 2011. While working there, he observed the English rugby player Mike Tindall – who had just married the Queen’s granddaughter Zara Phillips – “cavorting” with a woman on the dance floor. So Dixon went into the bar’s computer system, copied a file containing the video footage of Tindall’s escapades (which he then deleted from the bar’s computer) and tried to shop it to the UK tabloids (who, in an unexpected fit of ethics, refused to pay him).

This case then managed to wend its way up to the Supreme Court on a seemingly narrow point of law; did Dixon “obtain[] any property” when he copied the file containing footage of Tindall from his employer’s computer system?

Certainly what Dixon did looks a lot like the sort of thing we think of as being “theft”. … And, in a nutshell, that’s what the Supreme Court thinks about the matter (judgment available here). The digital file that Dixon took was something that his employer wanted, that his employer didn’t want Tindall to have, and which had an economic value. If something looks like property, sounds like property and gets treated like property, it should be considered property. … And so the Supreme Court overturned the Court of Appeal’s previous decision that the files weren’t “property”.

Remember what the Court is saying in Dixon (at least, in relation to s.249(1)(a)). A digital file – the “stored sequence of bytes” – constitutes “property”. So if you make a copy of that stored system of bytes in order to remove it from someone’s computer system, then you obtain that property. Meaning there are now two instances of the same property – the original file and the copied file, as both contain the same “stored sequence of bytes”.

Whereas, if Dixon were to have taken printed still photos from the bar’s video camera, scanned them into electronic form and put them up on the internet, it would not be a breach of s.246(1) for anyone to view, print, download or otherwise access them. Why not? Because you would not be receiving the stolen property – the printed still photos – but rather a copy of them that contains the same information. And the Supreme Court is very careful to say that “information, even confidential information, is not property” (at paras [23]-[24]).

Well now there’s an interesting can of worms. There are all sorts of technical questions and legal hypotheticals arising. The rest of Geddis’ post and the comments that follow explore many of them. Keith Ng also has a brief go at some of the technical absurdities. Seems that if you zip any file you’re copying you’re probably in the clear because it isn’t the same “stored sequence of bytes”. I’m not a file system expert [and I am not speaking in ANY professional capacity here], but it seems likely that in many cases simply copying from one file system to another results in a somewhat different sequence of bytes (because of varying file system attributes / tags / pointers / metadata).

All good sport for lawyers of course, but here’s a case of immediate relevance:

Court decision puts Hager back in frame

Ruling that hacked files used for book are property means charges possible

Dirty Politics author Nicky Hager may face criminal charges over accepting the hacked material used to write the bombshell book, according to documents obtained by the Herald.

Police will not say whether the investigative journalist is again a suspect, instead of simply a witness, after a pivotal Supreme Court decision which ruled computer files were property.

Documents show the new definition from the court puts Hager back in the frame over the computer files he was given by a hacker which he used as the basis for his book.

Otago University law professor Andrew Geddis said the Supreme Court decision was focused on one small part of the Crimes Act. But he said the logic behind the court’s decision would likely “follow through” to the way the courts handled other parts of the law – including receiving stolen goods.

“Rawshark will have obtained property in breach of [the law]. If Rawshark obtained property it’s hard to see those files are not still property when they get passed on to Mr Hager.”

Any shift in Hager’s status as a suspect or a witness could also impact the decision on his High Court challenge to the search warrant executed on his home in October 2014. Hager’s lawyers had insisted there was a higher hurdle to get a search warrant against somebody who was a witness – as Hager was on the day of the search – than for a suspect.

While Cameron Slater and the rest of the Dirty Politics crew carry on as usual, the Police really do seem determined to make life difficult for a whistle-blowing journalist in a case of significant public interest. Remember yesterday’s post on “A creeping authoritarianism from the current government”?


A question for legal types – how can this recent decision be applied retroactively to Hager? If to him, then surely to everyone, e.g. Slater’s taking of files from Labour’s server?

213 comments on “Technology and the law – and going after Hager”

  1. One Anonymous Bloke 1

    How can it be applied retroactively? It isn’t a law change – it’s an interpretation of existing law, so I don’t think it would be “retroactive”.

    Of course it also means that the Prime Minister’s office received stolen property, if interpreted that way.

  2. A question for legal types – how can this recent decision be applied retroactively to Hager? If to him, then surely to everyone, e.g. Slater’s taking of files from Labour’s server?

    In relation to the first question, the law works under a fiction. That fiction is that the law always has one true meaning, with the courts just “discovering” or “uncovering” this. So, when the Supreme Court says “computer files are property (at least in relation to s.249(1) of the Crimes Act)”, then this means that they ALWAYS were property (in relation to that section, at least). It doesn’t matter that the Court of Appeal said different. And it doesn’t matter if anyone relied on what the Court of Appeal said. Once the Supreme Court speaks, then that’s what the law both is and was.

    (Note how ridiculous this fiction is – the Supreme Court clearly is creating a meaning for the legislation in question … meaning that if you (or anyone else) want to know what the Crimes Act permits/prohibits at any point in time, you need to guess what it’s going to decide on the matter irrespective of what lower courts have said.)

    In relation to the second question, the question would be whether Slater “dishonestly or by deception, and without claim of right” took any files from Labour’s servers. As I understand it, his argument was that he simply copied information that was left available for the public to view. I’d guess he’d also argue that even if this was “obtaining property” on the Dixon test, he didn’t have the necessary mental intention for the offence.

    • In relation to the second question, the question would be whether Slater “dishonestly or by deception, and without claim of right” took any files from Labour’s servers. As I understand it, his argument was that he simply copied information that was left available for the public to view. I’d guess he’d also argue that even if this was “obtaining property” on the Dixon test, he didn’t have the necessary mental intention for the offence.

      Would that still be true if documentation, say in the form of PM’s or SMS between Slater and Ede, showed guilty intent?

      Speaking as a fan of calculas, I’ve quite comfortable with the idea of the legal fiction you describe. Our understanding of the law will always approach (but never quite get to) the true meaning.

      However it does raise the following:
      Can decisions made with a previous understanding of the newly uncovered/clarified point now be appealed by defendants or prosecutors of previous cases?

    • One Anonymous Bloke 2.2

      Could the court rely on his conversations at the time of the offending (as reported in Dirty Politics) as evidence of intent? Where would this leave Mr. Ede?

      What is the significance of the fact that Dixon deleted the material he stole, whereas Slater/Ede did not?

      • Tracey 2.2.1

        did slater or ede use the info in any way?

        slater published personal stuff about blomfeld didnt he?

        • dukeofurl 2.2.1.1

          Slater did publish snippets of Labours data on his website, with identities blurred – just to show he had it.
          From memory, it included credit card payment details ?

          Not only that, Labours data was in the form of a backup of payment system files. Slater had to pay someone ( Reagan Cunliffe his website developer?) to reverse engineer the scrambled data to make it readable.

          This is important, it wasnt in a form easily readable by a browser or standard document viewer.

          • dukeofurl 2.2.1.1.1

            Watching Slaters video of what he did, its clear that the personal data was in SQL backup format. This needed some skill to make readable
            Other data formats were used an example is csv ( which is easily readable though)

    • Tracey 2.3

      and his receipt of the blomfeld files?

    • john 2.4

      Except Slater didn’t take anything that wasn’t publically available.
      A bit like putting a naked photo of yourself in your front window and then complaining that someone saw it.
      In this case EMails were taken via breaking into Slater’s computer, then distributed (for profit, a book).
      A similar case would be someone breaking into your house taking photos of you in the shower and posting them on the internet.

      • Tracey 2.4.1

        but even if the data was sitting there… slater using it in someway to breach privacy is sti a srong unless he got peoples permission first? eg credit card info? someone leaving docs on a bench and them being found doesnt change who can give permission to use them?

      • Tracey 2.4.2

        and it wasnt availa le to the public per se… LP fucked up everyones privacy… which is slightly different to what you are saying… not a public record like a phone book

      • One Anonymous Bloke 2.4.3

        You shouldn’t have left the window open: when you did that your whole house became publicly available. And the video of you induced vomiting in internet users.

        • dukeofurl 2.4.3.1

          Strictly speaking the same test could apply to accessing Slaters computer.

          The poor security on Labours website let him in and the poor security of his work computer let someone it.

          • Tracey 2.4.3.1.1

            BUT if you are coreect above, even with the useless security, not everyone could use the information, only those prepared to research (or already knew) how to decode/translate?

      • Naturesong 2.4.4

        Slaters video of how he obtained the information is here: https://www.youtube.com/watch?v=AnOAeVaU5xM

        It’s when the video gets to 4m10s the directory listing is revealed.
        At that point, there are two thoughts that pop up in most people’s heads (and most likely Slater himself given his later conversations with Ede about not wanting to get caught accessing the information).
        1. I’m not supposed to be seeing this. And …
        2. what a bunch of incompetents!

        Just because something is easy, or because the idiot who set up the site forgot to set permissions does not mean that anyone has a right to access that information.

        And that’s before any privacy considerations (membership lists, credit card details etc)

        You could argue that once he had stumbled upon it and realised what it was, he believed there was a public interest in the information, but that clearly is not the case here.

        That said, I’ll defer to Geddis and Edgler on the matter.

        • Tracey 2.4.4.1

          i would love to hear from them on this too naturesong.

          just cos i leave my phone in a room doesnt mean i am giving it away or giving permission to use my data

          • Naturesong 2.4.4.1.1

            I understand from the twitter that Edgler is thinking about doing a blog post explicitly covering the property aspect of this.

            It runs along the lines of the file (container) being property but the information contained therein not being (although privacy issues may apply).

            So if Rawshark had altered the files by (as a for instance) by adding a *space* (or anything else that would result in a different hash) then the files (the containers of the information) would not be considered the same and so are no longer the property that was stolen.

            This obviously is not a defence of Rawshark who I think everyone understands broke the law by accessing information he had no right to, but as semantic as it appears to me, might be abough to protect journalists.

            • One Anonymous Bloke 2.4.4.1.1.1

              Why would journalists need such semantic games when the public interest is a much stronger defence?

              • Tracey

                I asked Andrew Geddes (up there ) to confirm if public interest is a defence to receiving stolen goods? I don’t think he saw it.

                • One Anonymous Bloke

                  I suspect you’d first have to establish that the by-products of the Rawshark hack constitute property rather than information.

        • dukeofurl 2.4.4.2

          Remember the “data” he was after wasnt normally readable, he had to get it ‘unscrambled’ to be able to see names.

      • George Hendry 2.4.5

        Sorry, John. Totally dissimilar. One runs into trouble like this when trying to misrepresent truth.

        Anyone who broke into my house, took photos of me naked in the shower (how would they do this without my knowing, this gets more ridiculous by the moment) then posted said photos on internet would quickly find they had not been doing so for profit. People would be demanding their money back even before they had paid any.

        “A bit like putting a naked photo of yourself in your front window and then complaining that someone saw it.”

        No. Nothing like it.

        The Labour party did not put their confidential files in their office window and then complain about people seeing them.

        You have indeed set yourself a hard task, explaining why Rawshark taking Slater’s files without his permission was illegal, and Ede taking Labour’s files without their permission was legal.

        All it clarifies is whose side you are on.

      • mpledger 2.4.6

        IIRC The Labour database had virtually no security other than the complexity of access that would take IT expertise in order to get at the data (IIRC Slater & co needed an IT expert to do the dirty work). Apparently, Slater had virtually no security other than an easily guessable password. In both cases, the security of the data was poor, the owners of the data did not wish the information to be publicly available and the people taking it knew that.

        Even if Slater’s access was not legally an offense, it was definitely felt to be an ethical and moral offense as a written apology was proffered by the National Party via it’s chairman (?).

        • One Anonymous Bloke 2.4.6.1

          Your door was open, so I walked in and took photographs of everything in your house including copies of all documents. I’m in the clear because the Prime Minister’s office did it too.

          • Naturesong 2.4.6.1.1

            You might find it’s a poor defence to the breaking and entering you’d be charged with 😆

            But, you could do it during an open home.
            Be sure to keep us all updated as your trial progresses.

            • One Anonymous Bloke 2.4.6.1.1.1

              I forgot to mention I got paid to do it, through a trust run by my mate Jordan. He says if I get busted he’ll call the client and I’ll be taken care of. It’s all a bit hush hush, but the best thing is, we’re in the digital age, so they haven’t even got plausible deniability.

              Mum’s the word.

        • john 2.4.6.2

          Openly accessable..in fact, the labour party encourage you to look, how far is irrelevant. Therefore there is an implication of invitation…no “locked doors here”.
          Slater had a password….like having a lock on your front door, if it is a poor lock….it’s still breaking and entering with NO invitation either stated or implied.

          • One Anonymous Bloke 2.4.6.2.1

            Which is why the thief in the PM’s office masked his IP address, because he knew he was doing nothing wrong.

            Do you have to repeatedly smash your head against a wall to achieve this level of cognitive dissonance? Or is it genetic?

            • Naturesong 2.4.6.2.1.1

              It is an interesting question though.

              If you have a guilty mind, believe you are committing a crime, but are in actual fact not.

              In this case however, it’s clear that information was accessed without authorisation (the nature of the information copied together with Slater and Ede’s relationship to the Labour Party requires a monumential leap of faith to come to any other conclusion), but until Dirty Politics came out there was no way to prove mens rea.

            • Andrew 2.4.6.2.1.2

              “Which is why the thief in the PM’s office masked his IP address”

              No he didn’t, i believe it was referred to as a “dynamic IP address”, which is what 95% of all people connected to the internet have. In particular anyone working for a company will generally have a dynamic IP address. try tying ipconfig /release, ipconfig /renew and see what happens. You might just get a new one.

              • One Anonymous Bloke

                My bad. Jason “Dynamic” Ede offered “a hearty sigh of relief” that his prints weren’t on file, ‘cos had they been he’d’ve been “bang to rights, it’s a fair cop guv”.

              • Draco T Bastard

                And a dynamic IP address can be traced by the simple expedient of asking the ISP and/or the network admin who was logged on and using that IP address at that time.

          • Tracey 2.4.6.2.2

            Feel free to argue it in court, should it come to that, I hope Slater has a better defence than you would affford him.

      • weizguy 2.4.7

        “A bit like putting a naked photo of yourself in your front window and then complaining that someone saw it.”

        Or, a better analogy, someone walking into your house through an open door (because you left the ranch-slider open on a summer’s day) proceeding to your bathroom and taking, and publishing, photos of you in the bath.

      • Draco T Bastard 2.4.8

        Except Slater didn’t take anything that wasn’t publically available.

        If I leave my door open you can’t wander in and use everything in the house as you choose. If you do so you are committing a crime. This is what Slater did and thus, IMO, still committed a crime.

        In this case EMails were taken via breaking into Slater’s computer, then distributed (for profit, a book).

        But they weren’t taken – they were still there and profit from the book has nothing to do with it. Unless you’re arguing that nobody should ever get paid for their work?

        • john 2.4.8.1

          So theft is work, now.
          The labour party’s door was open….because they wanted it open, they invite everyone in.
          Slater did not invite anyone in, in fact he had password protect, no matter how poor, it is still NOT an invitation.

          • Draco T Bastard 2.4.8.1.1

            So theft is work, now.

            No, journalism is and it often skirts if not outright breaks the law which is why journalists have protection for doing so written into the law.

            The labour party’s door was open….because they wanted it open, they invite everyone in.

            That’s not how it works as you would know if you’d bothered to read the law.

            Slater did not invite anyone in, in fact he had password protect, no matter how poor, it is still NOT an invitation.

            Accessing Slater’s data was, as a matter of fact, a crime. Doing so exposed immoral and possibly illegal behaviour which is why Hager publishing a book is not a crime and nor is him receiving that information.

            • john 2.4.8.1.1.1

              Receiving that info., by hager, if data is property (supreme court)..then he has received stolen goods….a crime!!!!
              Searching through an OPEN web site (Labour’s, at the time) is not.
              Labour want you to explore their web site, don’t put anything on there you don’t want people to see, down load or copy.
              I don’t put my customer list or set of accounts on my web site. But you can see the products and services I supply…in fact I welcome people to look……… just like Labour….and all the other political parties.

              • One Anonymous Bloke

                John the Bellman. What he tells you three times is true!!!!!! !!!! !!!!!!!!!

              • Tracey

                You need to read the actual decision rather than taking your knowledge on this from Mr Slater’s website.

                if you aren’t prepared to read the actual decision, then don’t be surprised if you get ridiculed.

              • Draco T Bastard

                Receiving that info., by hager, if data is property (supreme court)..then he has received stolen goods….a crime!!!!

                Well, the SC went to a great deal of effort to say that it usually isn’t.

                Searching through an OPEN web site (Labour’s, at the time) is not.

                It wasn’t a website. If anybody had just explored Labour’s website they would not have found it. To access the files that Slater and Ede did required that they go looking for them and that shows intent to access data that they weren’t entitled to.

                I don’t put my customer list or set of accounts on my web site.

                And neither did Labour.

                • john

                  labour put this on their web site open and accessible!! Even they admit it.
                  So..they searched the web site…so what. They could not have known it was there until they found it.
                  Maybe someone in the Labour party told them where to look?
                  As for the SC…usually isn’t does not mean never!!!

          • maui 2.4.8.1.2

            If you found a wallet would you just help yourself would you?

            • john 2.4.8.1.2.1

              The law says that it is the property of the person who lost, you should make all reasonable attempts to return it.
              NOT the same here, the Labour party INVITES you in to look around their web site, just like ALL other political parties. If they leave, in plain view, something in there that they don’t want seen…more fool them. You can’t unsee something!!
              Hager used STOLEN Emails from a person that BROKE INTO someone’s property…. Not the same at all.

      • travellerev 2.4.9

        Ah, the old they left the door open and therefore it’s not stealing argument!

        • john 2.4.9.1

          They didn’t leave the door open, …they invited everyone in to look around!

          • Draco T Bastard 2.4.9.1.1

            No they didn’t.

            • john 2.4.9.1.1.1

              Childish but……having a web site (such as all political parties do) is an invitation for people to look around it. Otherwise why isn’t it password protected and why does it actively encourage you to click on all the links on the front page, and as you go further in it encourages you to click on more links etc etc?

              • One Anonymous Bloke

                If that’s how you see it your moral compass is due for a service.

              • lprent

                No it isn’t. Read the crimes act and privacy acts for the actual law rather than talking out of your area with stupid shit like that. Most networked computers have both public and private areas. Even computers on internal networks have public streams.

                If anyone breaks into the areas that are not meant to be public, then they have committed a crime. I will lay a complaint, and If the police don’t take action then I will probably prosecute them one way or another.

                • john

                  Not the case here …it was publically accessible and the Labour party have already admitted and apologised for that!!

              • weka

                the pages that Slater and Ede accessed weren’t clickable off the main site. You had to know how to access them, and most people wouldn’t. That’s not a definition of public.

                • Draco T Bastard

                  +1

                  john of course knows this but acts to hide the truth of what happened even from himself.

              • Mike Bond

                @John. You are wasting your time trying to explain to the Anonymous Bloke. He is stuck in his thinking and thinks he is very smart to ridicule others who disagree with him. We have to wait and see what comes out of the court case. What I do find funny is all the support given to Hager, yet those very same people had heaps to say about their own privacy and the powers of the GCCB. They don’t want their privacy breached, but it is OK to hack someone’s e mails and then write a book based on these e mails. We did say hypocrisy is ripe on the left.

                • One Anonymous Bloke

                  Who said it’s ok to hack emails?

                  Nobody. Not even the hacker. Once again your ‘argument’ has no foundation.

                  Has The Herald coming out for Hager not given you a little clue yet? My view is the majority one and you still haven’t read Dixon v R, have you.

                  Very very feeble.

          • One Anonymous Bloke 2.4.9.1.2

            John hasn’t realised that an open door isn’t an invitation. So if you find John in your house just looking around, don’t call the police, take it as an invitation to teach John better manners by some appropriate method.

            John. Cuddling up to crims since forever.

            • BM 2.4.9.1.2.1

              John would be trespassing as he wasn’t invited in and anything he took would be considered stealing.

              My take is the way Labour set up their server it basically meant to was an invite to all to come on in , check it out and take what you want.

              • One Anonymous Bloke

                Like John’s, your take is woefully lacking in sense and sincerity.

                • BM

                  It’s why it’s quite hard to prosecute a friend,family or flatmate who’s stolen your stuff.

                  Normally it’s a civil matter, not a police matter.

                  • McFlock

                    Slater isn’t any of those to the Labour party though, is he?

                    He’s the halfwitted thug from down the road who sees you left your door ajar and wanders all over your home, sniffing the dirty laundry. Sure, they try “the door was open” as a defence, and the judge/jury still finds them guilty.

                    He knew he wasn’t supposed to have access to the information he was reading. That’s why it was a story. In my opinion (not tested in court) that’s also why he committed a crime.

                    • BM

                      Nah, it was about the incompetence of the Labour party.

                      Can’t even run a website yet think they can run a country, lol, lol, what a bunch of tools.

                      That was the story.

                    • One Anonymous Bloke

                      Tools with nine surpluses in a row, the lowest unemployment rate since the 1970s, and all this without Oravida bleach attacks.

                    • McFlock

                      You really do love to blame the victim.

                      The story was “door left open, see a buffoon walk through the house and sniff the panties“.

                    • Stuart Munro

                      Yeah but he’s a Gnat thug – like a certain prominent individual who a corrupt judiciary has determined shall remain nameless – and like the Masons were once purported to, Gnats enjoy inappropriate and disproportionate police and court cooperation.

                      So Hager will be prosecuted and Slater will probably get a knighthood – for services to the suppurating mass of corruption that is the Key administration.

                  • One Anonymous Bloke

                    BM, cuddling up to crims since forever.

            • john 2.4.9.1.2.2

              But unlike rawshark, I won’t be in your house uninvited.

              • One Anonymous Bloke

                You said having the door open was an invitation. Slater left the door open, or Rawshark wouldn’t have gained entry. According to you, John, that means Slater invited Rawshark in.

                Relax, crims and their cuddlers (that’s you, John), have been running this line since Cain was a tacker. The law rejected it eons ago.

                Any chance of you getting up to speed this century?

                • john

                  No…read again….Rawshark Broke in by breaking past the password, there was no such block on the Labour party website and all comers are invited to explore ALL political party web sites.

                  • One Anonymous Bloke

                    Slater even tried to have The Standard hacked.

                    Rawshark admits his offending. John’s cuddling up to crims. No wonder Hager wants to disinfect your dirty little schemes with the sunlight of public exposure.

    • r0b 2.5

      Andrew – many thanks for your contributions. That description of “legal fiction” is one of the most interesting things I have read (and clearly never understood!) about the law.

      Seems to me that the legal fiction must fall over in the case of interpreting new technology? If the technology didn’t exist at the time a law was written there is no way it can have a “true meaning” that covers new developments.

      • dukeofurl 2.5.1

        Ist it a throwback to medieval Kings, who were sole arbiters of the law, and could never be wrong, even when they changed their mind, or more commonly changed Kings ?

      • @rOb,

        Well – it can! For example, the law on theft didn’t need to be rewritten to deal with the development of internet banking … if you get access to someone’s account on-line (say, they walk away from their computer without logging out of it) and transfer money into your account, you’ve “stolen” that money just as much as if you took $50 from their wallet. The question is, can existing concepts/definitions in the law stretch to encompass the new technology. If so, then the law can apply to it just as much as if it were around when the law was written.

        The REAL problem we have is that s.249 of the Crimes Act was written specifically to deal with a new technology (computers). What doesn’t seem to have been considered is how applying existing legal concepts (such as property) in the context of those sections (i.e. in relation to computers) might then flow through into other bits of the Crimes Act not written with computers in mind (i.e. the bits about receiving dishonestly obtained (stolen) “property”). Now the Supreme Court has forced us all to start thinking about that … and none of us really know!

        • r0b 2.5.2.1

          The law / technology interface is a really fascinating place to be right now (potential students take note!).

        • One Anonymous Bloke 2.5.2.2

          none of us really know!

          It can’t be that hard to figure out: the rule of law requires that governments and other dodgy types be held to account: freedom of expression is vital to that goal.

          What about precedents?

          Daniel Ellsberg springs to mind…

          • Tracey 2.5.2.2.1

            perhaps rule of law is now a

            nice to have

            • Pat 2.5.2.2.1.1

              perhaps rule of law is now ability to afford?….and wasnt it always so if to a lesser degree in the recent past?

          • Naturesong 2.5.2.2.2

            I don’t think it’s a matter of just finding out.
            This does appear to be new territory.

            It’ll be tested in court, and as each point is addressed and presidents are set, they become the true meaning of the law as indicated by Geddis above.

            Ellsberg was subject to the US judicial system so the precedent set there will not apply here (though judges do sometimes reference overseas rulings when setting precedents here)
            And, he was charged with theft, conspiracy and espionage. They threw the book at him.

            The issues these cases address (Dirty Politics, Blomfield and Labour website) appear to be:
            * Privacy
            * Defamation
            * The meaning of Property as it relates to information, or containers of information.
            * Unauthorised access of computer systems

            The issue that does overlap with Ellsberg is the public interest angle.
            The publishing of information which highlights abuse of power.
            Remember Ellsberg was a whistle-blower, Hager is a journalist.

            • One Anonymous Bloke 2.5.2.2.2.1

              They threw the book at him, and the judge caught it and threw it (and their case) out of court.

              The SC ruling cites plenty of US law.

              They also refer to public interest and freedom of speech issues, which clearly covers Hager, The Herald, Paddy Gower et al,

              • Glad we agree.

                Or rather, I’m assuming we agree and you’re not left thinking that a lawyer representing a whistleblower in a New Zealand court could argue that a US ruling has any legal weight here.

                That’s not to say that a NZ Judge would not look to how judges overseas approached similar cases when setting precedent here.

                • One Anonymous Bloke

                  If they carry no legal weight, why cite them at all?

                  What emerges from our brief discussion of the United States authorities is that although they differ as to whether software is tangible or intangible, they are in general agreement that software is “property”. There seems no reason to treat data files differently from software in this respect. Even though the English Court of Appeal considered that an electronic database was not tangible property capable of being converted, it acknowledged that it might be property.

                  • Tracey

                    the precedent system can allow a court to consider a case from the USA but they do not HAVE to follow it, ergo, they are not bound by its ruling on a particular principle. The SC would have more latitude in this regard?

                    • One Anonymous Bloke

                      They also cite case law from the UK which takes a different view. Obviously that carried less weight than the US rulings in this case.

                      What the RWNJs are ignoring is that the word “property” does not have a fixed, technical meaning but must be interpreted in context.

        • McFlock 2.5.2.3

          Funnily enough, I would have said that what Dixon obtained wasn’t “property”, but rather he obtained a “benefit”: the information he got was then able to be used by him to gain notoriety and attention.

          Although the justices obviously know better than me…

    • yabby 2.6

      If I remember rightly Slater showed people how to go into the Labour website and access the open files.

  3. weka 3

    What’s the problem with information being property?

    • One Anonymous Bloke 3.1

      Receiving it is a crime.

      • Tracey 3.1.1

        which has implications for slater in tge blomfeld case?

      • weka 3.1.2

        “Receiving it is a crime.”

        Why is that a problem?

        • Tracey 3.1.2.1

          because receiving stolen goods is a criminal offence under the crimes act 1961

        • One Anonymous Bloke 3.1.2.2

          It’s a problem because of the way it affects for eg: journalism – the Intercept, for instance.

          • weka 3.1.2.2.1

            ok, so apart from journalism, any other reasons why information being regarded as property is a problem?

            • mpledger 3.1.2.2.1.1

              Because there is no real way of knowing what information on the internet is stolen or not.

              Just look at youtube – if there is a video gone viral then there are often lots of copies on youtube where people have stolen the original video and uploaded it as if it was their own in order to get advertising revenue from the huge interest in it. If you look at the wrong one (i.e. one stolen from someone else) then you could be done for receiving under this new definition.

              • weka

                So the problems with internet usage should dictate whether information in general is property or not?

                AFAIK, if a video is copyrighted then uploading or downloading it without permission is illegal. That’s because the law grants ownership.

                • dukeofurl

                  Thats really an intellectual property situation, completely different. The copyright , which is a license not real property, is about using someone elses IP ( usually without paying!)

              • BM

                Bollocks

                http://www.netlaw.co.nz/crime.cfm?PageID=328

                Hager knew the data was stolen, the person watching the you tube video does not.

                • One Anonymous Bloke

                  Right wing bush lawyer arguing that Jason Ede stole property while working in the PM’s office.

                  The judgement makes it very clear that one of the reasons Dixon’s actions are considered theft is because he deleted the video footage. It also makes much of Parliament’s intent with regard to these matters and points out that the orthodox view is that information is not property.

                  Your narrow self-serving interpretation ignores Parliament’s intent with regard to journalism. The courts will not.

                  • Tracey

                    what is becoming apparent is at least 3 of our rightwing commenters have not read the decision despite it being available and have settled on a newspaper article as the basis of their assertions.

                  • dukeofurl

                    Not quite.

                    What happened was a “compliation” was made of the raw data – mostly showing the rugby player, this was copied onto Dixons USB, and then the COMPILATION WAS DELETED from desktop.

                    Now where does it say the raw data was deleted. (BTW sounds like they were experienced as this editing task)

                    “While the files from which the compilation was constructed REMAINED on the CCTV system, the compilation contained what was valuable in the full files.”
                    Supreme Court judgement [39]
                    http://www.courtsofnz.govt.nz/from/decisions/judgments

            • One Anonymous Bloke 3.1.2.2.1.2

              Do you have any material on your computer in breach of copyright? It just got upgraded to a whole new level of criminality.

              • weka

                my original question (“What’s the problem with information being property?”) isn’t about the current situation, it’s about the underlying issue of why information is not considered property (some information, other information already is).

                • One Anonymous Bloke

                  The judgement considers the question in exhaustive detail, including plenty of existing case law. It lays out the Court of Appeal’s reasoning, and its own reasons for overturning their judgement.

                  In doing so, the SC departs from what it terms the “orthodox” view – that information is not property. It’s clear from Prof. Geddis’ article that significant questions arise.

                  The accompanying media release says that the word “property” does not have a fixed, technical meaning but must be interpreted in context.

                  With regard to property, the court also makes reference to Parliament’s intent. It’s clear from other legislation that Parliament also “intends” to allow journalists to protect their sources.

                  Somewhere there’s a balance.

            • RJL 3.1.2.2.1.3

              It radically changes the penalties associated with activities like Copyright Infringement.

            • Draco T Bastard 3.1.2.2.1.4

              Knowing how to do maths is information.
              Knowing how to read is information.
              Your genetic code is information.

              It goes on and on and on. They’d be huge problems for society if information became property.

    • @Weka,

      If information is property in the same way as, say, your toothbrush or shoes are, then some free speech problems start to emerge.

      Consider. I am an evil entity (a company, or a union, if you prefer). I have been up to no-good. I write down my no-good deeds on a bit of paper. That information (the details of my no-good actions – not the bit of paper) then gets taken by a third party (an employee, or a cleaner, or whomever) and repeated to a campaigning journalist, who then broadcasts it to the world.

      Has the third party “stolen” my property (in the same way as taking your toothbrush or shoes would be)? Has the journalist then “received” that stolen property? In which case, hasn’t campaigning journalism just been criminalised? Is that then a good thing (from a societal point of view)?

      • Tracey 3.2.1

        thanks andrew.

        does public interest operate as a defence in this situation? Or is that what you mean about campaigning jouralism being criminalised? investigative too

      • weka 3.2.2

        what is campaigning journalism?

        Wouldn’t the scenario you describe be better covered by whistleblower/public interest legislation?

        But compare that to say someone making a copy of my computer’s HDD and sharing things from there that I don’t want shared. Nothing evil, just personal stuff or stuff that is confidential. Why should the information on my computer not be considered property?

        Conversely, how come my medical notes are the property of the medical practice I go to? Yes I am entitled to copies, but the originals are deemed to belong to the practice and I have limited control over the information I have shared. That information now belongs to other people.

        • Andrew Geddis 3.2.2.1

          @Weka,

          Why should the information on my computer not be considered property?

          Well, it is a form of property, in that you have copyright over it and so can take civil action against anyone doing the sharing. What you’re asking is, why shouldn’t the Police be able to charge and the courts convict someone for what they’ve done. And the answer to that is the one I gave above … we should be very careful about extending the extensive criminal law protection we give to tangible property (shoes/toothbrushes/etc) to intangible “information” as the latter is so closely intertwined with free speech that we risk making public discussion/talking about things an illegal act.

          Case in point – if the person who is “sharing things from your HDD” has “taken property”, then everyone who they share with is “receiving it” and also has committed an offence. As would anyone that they>/i> share the information with. And so on. And so on.

          • BM 3.2.2.1.1

            Only if they know it’s stolen.

            • One Anonymous Bloke 3.2.2.1.1.1

              Not when they are a journalist working in the public interest.

              If they’re Jason Ede working in the Prime Minister’s office…you just dug yourself a big hole.

              • BM

                I can’t find it, but didn’t Hagar admit on radio that he knew the data he used for dirty politics was stolen.

                Sure it was on Hoskings show.

                Also if Slater and Eade broke the law they should be prosecuted

                • “If Slater and Eade broke the law they should be done like Hagar.”

                  By which you mean slandered by the PM and harassed but police?

                  Or do you mean charged with a crime, like Hager has not been?

                  • BM

                    Even though I edited my comment.

                    What I meant was that if Hager got done and Eade and Slater were guilty of the same sort of thing they should get done as well.

                    • One Anonymous Bloke

                      Slater’s situation is unclear. Ede has no defence though, because he isn’t a journalist.

                    • I don’t understand.

                      What Hagar did by publishing Dirty Politics from the information he received from Rawshark opens him up to privacy concerns and potentially defamation from the main subjects

                      Whereas what Slater/Ede did was accesses a computer system and download information they believed they did not have a right to. (This is on par with Rawshark’s behaviour, not Hagers)

                      There are however similarities between Hagar receiving information and writing Dirty Politics and Slater obtaining Blomfield’s information. These relate to privacy issues.

                      In addition, Slater has been taken to court by Blomfield for defamation.
                      This is an avenue that Slater can take against Hager but I suspect he’s terrified of what might be made public during discovery.
                      Additionally, Hager looks to have a pretty strong public interest defence should he end up in court.

                    • Tracey

                      I don’t think the police have ever raided Slater for either the Ede related information or the Blomfeld data.

                • dukeofurl

                  Like this time ?

                  “Right-wing blogger Cameron Slater has been accused of paying a man to hack into an opposition website( The Standard) for political gain.
                  In a statement provided to NZME. News Service, police confirmed they were investigating the claims, saying they had “received a complaint regarding an alleged attempt to procure the hacking of a computer system”.

                  Nothing came of that one ! Surprised not ?

            • Tracey 3.2.2.1.1.2

              do they have any obligation to ascertain that before using it BM

          • Jim in Tokyo 3.2.2.1.2

            I haven’t seen any indication that Slater’s computer was broken into / accessed. Nor have I seen any indication that files were moved or copied?

            Looking at Rawshark’s twitter feed, it looks like two hosted cloud computing services were accessed (Gmail and Facebook) and screenshots were made of the relevant messages then circulated.

            You can’t even “copy” a Facebook instant message on the byte level to my knowledge – the screenshot process is more akin to taking an iphone snap of the security monitor showing the dancing rugby blockhead and circulating that.

            That’s quite a different scenario from say receiving an illegally obtained physical harddrive or clone of a physical harddrive.

            • JeevesPOnzi 3.2.2.1.2.1

              That’s a refreshing slant on things- because up until now- Slater’s story has gathered steam without anybody actually examining it in detail.

              He’s been saying it was stolen…. and most people are now accepting on a certain level that Rawshark is ‘guilty’…

              But what if it wasn’t stolen… what if it was just ‘found’. And just because “Rawshark ” has said he is culpable, it still needs to be proven.

              At some point- in a series of improbable events – a person in possession of someone else’s goods, may have an argument of distant proximity from the crime?
              I see my neighbours car held back by a brick beneath the wheel, so I steal the brick. The car rolls down the hill and through the open gates of the farmyard at the bottom. Farmer picks it up on tractor and drops it out past the back paddock, on a country road. It sits there for two months until other farmer puts it in his paddock for safe keeping. Eventually weeds grow through it and his kids start driving it around the paddock… etc etc.

              Given the complexity of the cloud storage world vis a vis the archaic law applied to it- it may well be the real Rawshark could present a defence that simply usurps the law to the point that he plays no bigger a part than the Farmers’ kids driving in the paddock.

      • RJL 3.2.3

        If information is property of the “toothbrush kind”, can the police then seize it as “the proceeds of crime”?

      • Ross 3.2.4

        “Has the third party “stolen” my property?”

        What if the answer was yes but it was necessary to steal in order to protect the public?

      • McFlock 3.2.5

        Semantic point: I’m not sure “stolen” applies to the information (no ability to permanently deprive Slater of his texts or the bar owner of the security camera footage).

        But it’s only a semantic point:

        246 Receiving
        (1)
        Every one is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.

        • One Anonymous Bloke 3.2.5.1

          Dixon made a compilation which (apart from the copy he took) he deleted. The compilation is the property in question, not the raw footage. So yes, his employer was deprived of it.

      • nukefacts 3.2.6

        This idea that Information is Property is so very flawed. It seems based on a conflation of physical manifestations of information with information itself.

        Consider this. Historically, property was defined through several attributes:

        – it is tangible i.e. can be touched
        – it is immutable – i.e. generally, it can’t be significantly changed (think a car, boat, land, a book)
        – it is possible to determine it’s provenance i.e. who previously owned it and what has been done with it (think a car ownership and service history). Provenance thus defines ownership
        – it has a quantifiable cost to create and maintain, hence it’s loss through theft incurs real financial costs to the owner

        Information, while not well defined even by the ICT sector, has some different attributes:

        – it is intangible, being created and maintained within computer technology and hence can’t be touched and often not even seen
        – it is highly mutable i.e it can undergo change ranging from minor e.g. change a date, to extensive, e.g. re-write a novel
        – provenance is often completely unknowable, especially when information can be quickly assembled from a huge range of unattributed sources. This point is especially important when thinking of information as property – you frequently can’t prove who or what (e.g. machine, person) is responsible for creating an changing information. Thus ownership via Provenance breaks down (note that many Asian cultures don’t think of provenance and ownership as western cultures do, based on this understanding that in reality, all information passes through multiple hands and is built by many participants).
        – costs to create and maintain are often exceptionally low while the perceived value may be high (think a movie, e-book), but increasingly the value of digital information is being devalued as business models evolve. This makes it hard to prove loss of value

        Two examples nicely illustrate these issues:

        1. I steal someones car. The car is clearly tangible, immutable, with known provenance, and a high cost. It’s clearly someone’s property otherwise it would not have been purchased, used and have sufficient value to warrant being stolen.

        2. I steal someones digital medical record. This is not property as we understand it, and the theft has different consequences. The record is intangible, and highly mutable as it is continually modified until the patient is dead. Provenance is discoverable, but ownership is jointly held between the patient, doctor, hospital / GP, and other care providers. Costs to create are almost zero, and costs to maintain the record are very high for care provider labour, but almost nothing for the digital aspects of the record. There’s no financial cost to the theft of the record, and no physical asset is harmed or taken off someone. There are potential health and repetitional problems that can arise at different times (e.g. a mental health diagnosis may limit employment) but in no way can the record be considered ‘property’.

        To apply this thinking to the Dixon case. What was taken was a ‘mashup’ of existing footage. It was created by Dixon using his employers resources but it is unclear that he was actually forbidden from using these (e.g. computer, video footage). To conclude he stole property is clearly wrong. The employer owned the original CCTV footage, not the mashup, and the original footage was not deleted. The cost to produce the mashup was mostly Dixons labour, with some electricity etc from the employer. Dixon possibly breached privacy law by using the footage for a purpose it wasn’t intended for, but in no way did he steal property.

        In the case of Rawshark and Hager, Rawshark may have committed a crime. Hager however received a set of digital files that themselves are not the same as the original. To expand this point, any time you copy a file it’s not actually exactly the same as the original because the create/read/update metadata of the file is changed. You cannot make a digital copy of something and keep it on writable media (computer memory, hard disk, SSD etc) without this metadata being changed. Therefore it’s not the same file so he wasn’t receiving stolen property.

        • One Anonymous Bloke 3.2.6.1

          Dixon used his employer’s computer to make the compilation. The compilation automatically belongs to the employer, no?

          Put it this way: the SC ruling clearly states that Dixon’s access of the computer was “unauthorised”.

          Have you read the judgement?

          • McFlock 3.2.6.1.1

            The compilation automatically belongs to the employer, no?

            Well, there’s an interesting argument right there.

            E.g. what if the compilation used a small enough amount of the raw footage to count as “fair use” under the copyright act? Sure, it was obtained unlawfully, but if I steal a library book and write an article citing some of the contents, I own the article even if I can be done for theft. And aren’t Hager’s excerpts in the book a “compilation” of the hacked material?

            The entire issue is a dog’s breakfast.

            • One Anonymous Bloke 3.2.6.1.1.1

              I think it’s a bit of a leap between Dixon and Rawshark, and a far bigger one to Hager.

              As the SC points out, context is everything. Was Slater deprived of his information, for example? The ‘benefit’ from it was to the entire nation.

              I can sense many long bows being drawn 🙂

    • ianmac 3.3

      If you copy something and leave the original intact, then have you stolen anything? If I take say a cell phone it is gone. But Data on a computer is still there so has it been stolen?

      • john 3.3.1

        If you steal a car, drive it around town and return exactly where you found it with exactly the same amount of petrol in the tank, without the owners knowledge.
        It is still stealing!!!!

        • One Anonymous Bloke 3.3.1.1

          It’s possible that you’d be a worse choice for Cameron’s lawyer than he is.

        • JeevesPOnzi 3.3.1.2

          No its not stealing- its borrowing without the owners consent.
          Particularly if you bring it back with petrol in it.

  4. Tory 4

    The good news is that this is sitting with the NZ Supreme Court and they will make a decision based on interpretation of the law. Personally I think Hager is in trouble.

    • One Anonymous Bloke 4.1

      They’ve already made their decision and were at pains to point out that they intend a very narrow interpretation. Please try and keep up.

    • Tracey 4.2

      can you set out the legal basis for considering hager is in trouble?

      • dukeofurl 4.2.1

        It didnt say “best wishes from Cam” on his package.

        Knowing you have received stolen goods ( and not returning them) is the problem

        • ianmac 4.2.1.1

          So if Hager returned his data to Slater it is not stolen?

          • dukeofurl 4.2.1.1.1

            No. But for the person who received the stolen property , its a way of indicating they didnt have the ‘required intent’

            Merely possession of someone elses property usually isnt enough for a conviction. If you knew it was stolen AND kept it would however most likely be.

            • ianmac 4.2.1.1.1.1

              If I bought a stolen car it can be taken off me even if I didn’t know it had been stolen. Not sure if I am guilty of a crime unless I knowingly received.

            • john 4.2.1.1.1.2

              But Hager didn’t merely possess it did he…profited from the writing of a book using info he was not entitled to have and he knew was stolen (he said so himself).

              • One Anonymous Bloke

                Slowly, you’re joining the dots. The dots that form the trivial part of your “case”.

                Now for the guts of it.

                When you’ve absorbed that information, and noticed that you have no case whatsoever, please don’t hesitate to ask questions.

      • Tory 4.2.2

        http://m.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11535914

        “Rawshark will have obtained property in breach of [the law]. If Rawshark obtained property it’s hard to see those files are not still property when they get passed on to Mr Hager.”

        I am sure you can join the dots….

        • One Anonymous Bloke 4.2.2.1

          I’m sure that you are ignoring Hager’s cast-iron public interest defence. Sadly for you, the SC makes direct reference to it, as does Parliament.

          Keep wishfully wishing all your political opponents were in prison. Perhaps you could be a guard, wearing a smart uniform with shiny buttons, to open and close the gate.

        • Tracey 4.2.2.2

          so you read the herald articke and concluded hager was likely guilty? Cool. Fortunately the courts will delve deeper than the herald

    • George Hendry 4.3

      ‘Personally I think Hager is in trouble.’ 🙂 🙂 🙂

      He will have had no idea of this, and realising it will worry him greatly. Never yet having been in trouble with police, he naturally has no notion of what being harassed by them could be like.

      If they now have the law on their side, what might that give them the power to do?

      ‘It didnt say “best wishes from Cam” on his package.’

      There is no public evidence that Cam gives or has ever given best wishes to anybody, so to expect Rawshark to look for such a thing was unrealistic.

      • dukeofurl 4.3.1

        Dont be silly, it was meant as a way of saying the files werent sent with Slaters blessing.

        • George Hendry 4.3.1.1

          Indeed, I was hoping I could get you to say ‘…weren’t sent with Slater’s permission’, or even better, with his expressed agreement as a response to a specific request.

          His permission was not given. Nor was the Labour party’s permission given. So there was equal ‘theft’ (virtual theft?) in both cases.

          Our resident trolls have spent ages arguing on this long thread that Rawshark stole, because it was (more) difficult, and Ede didn’t steal, because it was easy. Totally beside the point.

          When in doubt, seek permission. Or run the risk of being charged with theft.

          • One Anonymous Bloke 4.3.1.1.1

            There’s another difference between Slater/Ede and Rawshark – Rawshark admits personal responsibility for his crime.

            • The lost sheep 4.3.1.1.1.1

              Anonymous personal responsibility?

              Gee, now there’s a mind bending concept!

              So at first Personal Responsibility didn’t exist at all, then it did exist but only for those who were wealthy or of a Right Wing political persuasion, and now it has spread to a nebulous kind of half existence in an alternative universe where you can at the one and same time take it, without actually being answerable to it, because you can’t be identified….

              Progress. At this rate, some time in 2029 personal responsibility will have achieved that democratically Utopian state of applying to all citizens equally without discrimination.

              • McFlock

                Oh, you think that personal responsibility only applies to how other people treat you, rather than it being reated to some sort of internal characteristic of the person, like a conscience or other alien concept.

                My impression is that Rawshark knew perfectly well that what they were considering doing would be illegal, but made a rational choice to risk imprisonment and hack slater because they felt that would be the correct thing to do.

                My impression of Slater and Ede is that they think they are entitled to be repugnant without risk of any repercussion whatsoever, and that sense of entitlement extends to them being legally reckless.

                One case makes their choice and consciously takes their risks, minimising but accepting the possibility of punishment. The other case just assumes they’re legally, ethically and personally immune from any repercussions.

                I know which case I think comes closer to accepting “personal responsibility”.

                • Draco T Bastard

                  Exactly.

                  When it comes down to it, the right-wing never take responsibility for their actions unless they’re forced to by a court and even then they’ll deny blame.

              • One Anonymous Bloke

                Sheep correctly notes that the “personal responsibility” displayed by Rawshark is minimal. That’s still infinitely more than wingnuts display, despite the lip service they give.

                Still, my bad for not adding the smiley to indicate that I wasn’t being entirely serious, and confusing poor Sheep.

  5. savenz 5

    Shocking. What about legal protection for journalists and whistle blowers for public good?

    • savenz 5.1

      Quite different receiving incriminating data that shows evidence of corruption to a journalist than an employee copying security footage like in the UK case and trying to sell it for profit to breach somebodies privacy.

    • whateva next? 5.2

      or when “public good” is at odds with “good for government”???? it seems “good for government” wins every time these days

      • Draco T Bastard 5.2.1

        We seem to need laws that prevent the police going after people just because they’ve proven the government corrupt.

        • whateva next? 5.2.1.1

          not under this government, slightly against the trend of the laws they are passing in their reign?

  6. johnm 6

    I haven’t studied this deeply but my impression is this government led by Key the U$ lackey is copying what the fascist U$ is doing to Julian Assange the whistleblower. Hager has done the same here,but obviously on a much more micro level, exposed the venal small minded unprincipled corruption of this government. And they’re out to make him pay for it. JMO but this is fascist lite, certainly some Natsi mps seem to have a leadership cult for fuhrer Key! Some of them seem obsessed with saying… ” at the end of the day .” Are we looking at a 4 term Reich here? I hope not.

    • john 6.1

      Isn’t there some unwritten law of the internet…stating…as soon as you make reference to fascists/ n**i’s you have lost the debate?

      • One Anonymous Bloke 6.1.2

        As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1

        As for the notion of an unwritten law of the internet, I suppose there must be a video of it somewhere.

      • George Hendry 6.1.3

        “Isn’t there some unwritten law of the internet…”

        No, there isn’t. But there are those who believe there is. And that as long as they avoid such reference they can’t lose, no matter how faulty their arguments may be.

  7. Gabby 7

    If you receive a copy of the ‘property’, have you received the property itself? If you haven’t deleted the original as this fellow Dixon did, have you deprived the owner of anything except the exclusivity of the information?

    • savenz 7.1

      Good point!

    • One Anonymous Bloke 7.2

      Basically, if you aren’t a journalist and there is no public interest in the information, you’re on shaky ground.

      Think industrial espionage, for example.

      • ianmac 7.2.1

        But industrial espionage would be for profit as was with the Queenstown barman.
        Neither Rawshark or Hager were taking for profit which is a distinction in the law – somewhere.

        • One Anonymous Bloke 7.2.1.1

          Even when it is ‘for profit’ – as in the case of a newspaper, for example, it’s clear that public interest is an over-riding principle.

        • john 7.2.1.2

          ????? are you suggesting that Hager gave the books away??? really???

          • One Anonymous Bloke 7.2.1.2.1

            Are you suggesting that you still haven’t grasped the meaning of “public interest” – even though people have been so patient and polite with you? A less charitable observer might describe your behaviour as boorish, ungrateful, and completely lacking in any vestige of personal responsibility.

            You can lead a John to information but the poor wingnut can’t think.

      • Gabby 7.2.2

        That would be ‘intellectual property’ though. Bit of a long shot to call a planned smear campaign intellectual property.

        • One Anonymous Bloke 7.2.2.1

          I don’t think even the National Party would lay claim to Richard Nixon’s intellectual property. They probably owe enough in royalties as it is.

  8. savenz 8

    Imagine if individuals become criminalised for revealing information about criminal corruption or whatever by people in power.

    Corruption and criminal acts or even lying and hypocrisy would sky rocket in particular with people in power. (and probably already are). The criminals and wrongdoers would know they will be unlikely to be caught if it was illegal to reveal their actions.

    Goodbye transparency and justice.

    • Chooky 8.1

      +100 savenz …re “Imagine if individuals become criminalised for revealing information about criminal corruption or whatever by people in power”….and this could very well be the case with the persecution of Hager

      …not only because of what he revealed in ‘Dirty politics’ but also because of what he could further reveal on different issues and what he was working on

      this is not just a threat to investigative journalism , it is a threat to democracy and an open society and a civil society not riven with corruption

    • john 8.2

      ALL enquiries showed…no criminality and no corruption.
      So no public interest!!!

      [lprent: Are you talking about Nicky Hager and Rawshark? That was the topic of the post. But I’d agree. So far the police haven’t charged anyone and noone has taken a prosecution.

      Use the reply button or quote or reference the number of the comment you are replying to. Otherwise your opinion can be misconstrued.. ]

      • Chooky 8.2.1

        on the contrary, there is a huge amount of PUBLIC INTEREST!… in what has happened to Hager!

        …why has he been treated this way?!

        ….what have Westpac and the police got to hide ?!

        …or whose orders are Westpac and the police acting on?!…jonkey nactional?

        ….if so what is being hidden ?….and why do they FEAR Hager so?!

      • One Anonymous Bloke 8.2.2

        Gwynn Inquiry S.9, 10, 11, etc. don’t exist on Planet John. How will John manage to keep up with events on Earth?

      • George Hendry 8.2.3

        Come on, john. Out with it.

        Are you trolling?

  9. Tarquin 9

    I was under the impression the public good defense as used in the plough shears case is no longer viable. Not 100% sure, anyone know?

  10. NZJester 10

    Why did they never go after a certain someone who had a physical hard drive and physical paper files stolen from the person he was writing about then?

    • One Anonymous Bloke 10.1

      Because the stories a certain someone made up were fashioned from whole cloth, not the stolen material?

  11. reason 11

    Its interesting to note that BM and srylands would both stand up and defend child abusers if they were caught on the basis of evidence of their crimes being taken from their computers without their permission …………….The spirit of sabin is strong in those two .

    John Key is a dirty ………….. his mate Cam slater is a natural fit for team Key….. Although not suffering any real consequences yet ………… they have at least been exposed.

    But that wont stop BM and Srylands from being their cheerleaders …………

    Srylands has admitted to giving money to Slater …… which makes one wonder what type of shit he gets up to ………………….. creepy guy.

    Nicky Hager has exposed the truth ……….. The police have already debased themselves aligning themselves with dirt and trying to criminalize him for it ………

    This is our brighter future …………….

    • Rodel 11.1

      Christ this is boring. The facts are :
      Hager is a decent person and should be recognised as a genuine New Zealand whistle blower .
      Slater is an arsehole, a shame to New Zealand and should be locked away in a bin.

  12. mikesh 12

    I don’t think, Rawshark can be accused of theft, nor Hager accused of fencing, since Slater still has his files. Also Rawshark didn’t access the files for his own purposes but, rather, to alert the public, through the agency of Nicky Hager, to the existence of the files and their content. This is really more analogous of the situation where a detective sniffs out information for the purpose of solving a crime. Of course, if a detective obtains information in a dodgy manner that information may be inadmissible in a court of law, but that particular sanction hardly applies in this case.

    The pair may of course stand accused of invading privacy but I would think that the “public interest” would in the these circumstances be considered a good defence.

    • ianmac 12.1

      That is true mikesh. There is no way that Rawshark could be accused of removing files for profit. Nor Hager. In both cases they took a great risk to themselves. Look what has happened in USA to whistleblowers who have annoyed the State. In our case I feel sure that even if the State here does not win the case against Hager, the State will be pleased that they have punished him and sent a message to all those other uppity journalists.

  13. infused 13

    Of course its property. What a stupid question.

    • One Anonymous Bloke 13.1

      Yes, the Supreme Court is being stupid. If only they had your wisdom, they’d be at war with North Korea 🙄

    • North 13.2

      A repugnant infusion ! No knowledge just Boys’ Own Ponce-Key sucking.

  14. Smilin 14

    Concerning copying property. In the machinery industry many people have copied designs without stealing the actual plans : ie; ploughs etc and built for their own use and sold at a later date either in or out of patent which in essence is the same as copyright and to sell is a breach of the law and who cares its only a plough.
    Not being a lawyer or legal judge I am only talkin of common practise and the little I understand
    But it appears to me Hager is in the position of someone being charged for receiving property from theft and not copying directly in the use of the information in its original form but used as in parts like a chop shop for cars even though it appears to be the bytes of information being in their original sequence, is it the same as “part or parts of”as in a copyright ?very confusing or is it all irrelevant .Or is the evidence being constructed in such away as to try and put treason into the case against Hager when it could be that is where the govt sits .

    But when does the deliberate action of a govt to pervert democracy become a chargeable offence if evidence of their action to do that becomes public property by whatever means, and when in essence it is public property by the fact that it is known and possibly the responsibility of an elected parliamentarian who has knowledge of the action that has taken place .Or that all govt action is accountable to the people and not the discretion of the govt of the day to play legal games with or institute protectionism to cover their arse
    A bit of a mishmash but I hope it brings some normality to the fact that this whole Dirty Politics thing is about an attack on democracy and ultimately there should be a people’s referendum to clear Mr Hager
    French Revolution anyone. It is the Guillotine for someone who will it be, our precious possibly ………..

    • Stuart Munro 14.1

      Yeah – you’re leaving out the bit that what Hager received and disseminated was evidence of crime or substantial wrongdoing. A public interest defence operates for genuine journalism disclosing inconvenient truths – not so much for Slater’s black publicly funded operation.

      But the police and courts have shown themselves to be completely corrupt and I have every confidence that injustice will prevail. NZ – is becoming a dystopian dream. Slater for PM next – like Trump, but even less savoury.

  15. ropata 15

    The “stored sequence of bytes” will differ between filesystems (NTFS, FAT32), different media (CD, USB, HDD), different encoding (ASCII, EBCDIC, UTF-8), file type (dos, unix, txt, rtf), etc etc etc

    • mikesh 15.1

      The exact form in which information is stored is surely irrelevant. The issue is whether copying information, and using that information, without the owner’s consent amounts to theft. Copying and selling copyrighted information would have to be considered theft because the culprit is effectively stealing income that belongs rightfully to someone else. Presumably though Slater’s emails were not copyrighted, though the Dixon case would seem to indicate that they don’t actually have to be in order that the information be considered “property”.

      The court in the Dixon case seems to be saying that while taking information is not theft, copying files, in which information is stored, is. It seems to me the courts are “bending over backwards” to find something that they can criminalize in these sorts of situations .

      • ropata 15.1.1

        By saying a “stored sequence of bytes” the Supreme Court refers to an exact duplicate, so the storage format surely IS relevant. If Hager received the data in a zip file, then no breach occurred! (not to mention the fact that ALL files on the web are broken up into TCP/IP packets, encoded, turned into bitstreams, transmitted via copper and handy servers, then re-assembled by the recipient). The court needs a better definition of digital data…

        If possessing “the information” was a crime, everyone who bought a copy of Dirty Politics would also be liable.

  16. Kev 16

    When selling digital goods sellers will often create a directory with an unguessable name and put the digital good (e.g. a video file, pdf file etc) in the directory. It’s low tech but simple. The problem is person A may buy the digital good and then give the url of the digital good to person B, who is then able to download the digital good for free by going directly to the url. In that case we have a clear case of theft. This is because the seller is being deprived of money and person B knows he is depriving the seller of money (act + guilty mind)

    The last sentence is important.

    Now let’s say someone puts up a spreadsheet on a website in a place where he thinks the public won’t look, because he wants to go home and view the spreadsheet on his home computer. He knows that provided they know the url anyone can view the spreadsheet. And instead of removing the spreadsheet after he’s finished he leaves it there. Someone comes along and somehow finds out the url of the spreadsheet, goes in, looks at it etc. It’s not theft because he’s not depriving the web site owner of anything. Arguably it’s unauthorised access provided the person knew he was somewhere he wasn’t supposed to be – although whether or not the law was meant to be applied to folks wandering around a website I don’t know. IMHO the law was meant to be applied to “hackers” – people who use scripts and vulnerabilities to get access to file systems on remote computers etc. So in this case we have at most unauthorised access and not theft.

    But wait, you say! What if the person not only looks at the spreadsheet but also downloads it? This is where I admit it gets murky. In this case we have the person taking something from someone. So we have an act of “theft”. Then we have to ask does the person know that he is doing wrong – that he knows that he is taking from another person something that he’s not supposed to? In that case I would say that arguably we have a case of theft. But if the person’s attitude is something like “tough luck, you left the spreadsheet in a publicly accessible place where anyone could look at it and download it” then arguably there’s no theft. Just at most unauthorised access (unlikely to stick) and or someone taking advantage of another’s negligence.

  17. AsleepWhileWalking 17

    RFIDs (probably with biometric data) stored in the cloud, used in place of a passport, and probably linked with government and banking info….yikes

  18. mikesh 18

    I doubt there is much difference between viewing online and dowloading since one could photograph
    something that one is viewing.

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