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).
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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?
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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”.
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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”.
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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.
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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?
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