Was a crime committed when Slater accessed Labour’s computer system?

Written By: - Date published: 9:32 am, August 17th, 2014 - 45 comments
Categories: greens, labour, law, national, police - Tags: , , , ,

Reposted from Occasionally erudite

Following on from my earlier post regarding Nicky Hager’s new book, Dirty Politics, there’s the issue of Cameron Slater and Jason Ede accessing the Labour Party computer system. The Greens have filed a police complaint, but was a crime committed?

In the NZ Herald, John Armstrong states that:

The allegation that one of John Key’s minions hacked into the Labour Party’s database is – to put it bluntly – the modern-day equivalent of the 1972 burglary of the Democratic Party’s national committee headquarters in the Watergate complex in Washington.

Well, it’s not really hacking. I remember Cameron Slater blogging about what he’d done, back in 2011. No security was bypassed. No hacking required. Essentially, Labour left their system open to the world.

Over at The Standard, Rocky (in her blog post entitled “But the door was open…“) seems convinced that Slater and Ede would fall foul of s 249 of the Crimes Act – accessing a computer system for dishonest purpose – which reads:

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) causes loss to any other person.

(2) Every one is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—

(a) to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) to cause loss to any other person.

I’m unconvinced. There’s no “loss” to Labour, and I just don’t see that a court would find that snooping through Labour’s databases can be seen to fall under the ambit of obtaining or having the intent to obtain “any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The language is that of obtaining financial advantage, which just doesn’t appear to apply in this situation.

Unfortunately, there’s almost no case law in this area, so it’s difficult to say just what a court’s interpretation might be in this sort of scenario. Could Slater be said to have obtained a “benefit” through accessing the Labour website? It’s conceivable. Labour’s embarrassment and the flow on increase in hits to the Whaleoil website might be considered a “benefit”. However, I don’t believe it’s as open and shut as Rocky posits.

There’s a better argument in favour of a prosecution under s 252 of the Crimes Act – accessing a computer system without authorisation – which reads:

(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, or being reckless as to whether or not he or she is 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.

On the face of it, you’d have to assume that Slater and, allegedly, Ede would be toast – they’ve intentionally accessed membership and donations databases without authorisation, knowing they’re not authorised. However, lawyer Graeme Edgeler comments on Dr Nicole Moreham’s blog post atPublic Address, providing an interesting counter-argument:

The question then is: does Cameron Slater have authority to access the server that hosts the Labour Party website? Well, it’s a publicly available website, that they put up there so that people can go to their website and download stuff from that server into their cache to read on their browsers. If Cameron doesn’t have authority (because, for example, it’s not express authority), I don’t see how any of us can lawfully look at it.

If Cameron, and you and I have authorisation to access the server that hosts labour.org.nz for the purpose of viewing the Labour Party’s website, then is there any basis on which section 252(2) doesn’t come into play if once we access the server, we do things that it was not intended we should do?

Obviously, if once there, those unauthorised things we are doing on that computer system (which we are authorised to access for other purposes), we do things for other reasons, eg to cause damage to the site, or to do something dishonest etc. other computer crimes may arise (such as section 249, or section 250). These offences can be committed on computer systems you have been authorised to access, because they don’t include something equivalent to section 252(2), but there has been no suggestion to date that Cameron Slater or Jason Ede (or anyone else) accessed the Labour server in a way which might give rise to an offence under s 249 or s 250.

There may still be privacy issues, but I’m tending to the view that what has been alleged is not a breach of section 252, because of subsection 2. I think we all have authorisation to access the computer system which operates as the server hosting the Labour Party website.

Nonetheless, regardless of whether we’ve all got authorisation to access the Labour Party website, Slater’s posts of the time, and Ede’s Facebook/email correspondence with Slater, make it plain that they knew they were accessing something that the Labour Party did not want accessed by the general public.

To me, that clearly brings s 252(2) into play – you’ve got authorisation to surf the Labour Party website, but when you stumble on (or are tipped off about) a publicly accessible backdoor route into membership and donation databases, it should be obvious that you’ve gone beyond the purpose of access, thus negating the right of access you previously had.

Frankly, I don’t think Graeme Edgeler’s proposed defence would fly.

Which means we now await the outcome of the Police complaint, and see who they agree with…


 

Also see:

45 comments on “Was a crime committed when Slater accessed Labour’s computer system?”

  1. nadis 1

    Wasn’t a police complaint made back at the time?

    • lprent 1.1

      No.

      The problem as I understand it was that the National party tech and Slater (the two who could be identified from the logs) said that they hadn’t taken or tampered with anything. They had merely “looked” at what was there.

      Since that involved copying information and would have shown up on the logs, that is probably still illegal as there is a copy taken. However that is “actus reus“, the guilty act. Often to prove criminality you have to prove criminal intent “mens rea“, the guilty mind. The latter wasn’t clear in 2011 and would have been difficult to prove. So the NZLP dropped it as being potentially too embarrassing in an election year.

      However the conversations revealed in “Dirty Tricks” clearly show that there was a guilty mind. Slater, Bhatanger, and Ede were clearly intent on being malicious – in particular in stating that they would hold and use the files that they obtained to attack the Labour party and its contributors.

      That the evidence that proved this was also obtained illegally is unlikely to have any particular bearing on the use to lay criminal charges or to convict.

      As someone who in his youth used to do some of these kinds of break ins in the days when it was actually encouraged as a way to test security, I have a particular interest in this.

  2. tricledrown 2

    Graham McCready will most likely follow through with a private prosecution now their is more evidence of govt interfering in govt processes!
    If the police don’t prosecute or investigate.

  3. tricledrown 3

    Hager is on National Radio now

    • Lanthanide 3.1

      Pretty pointless interview, he didn’t really say anything new than what has already been covered.

      At this point, we’re really just waiting for the MSM to investigate each individual story in the book, put it to National/Key and see their response.

  4. locus 4

    i hope nz law and lawyers have the capability to bring slater and his paymasters to their knees. But i fear the reality is that the key fan club cant see the damage that these corrosive people and practises are doing to nz.

    The socially divisive lies propoganda and manipulation have done their damage. Aotearoa is not the country of quiet thoughtful egalitarianism that it once believed itself to be.

    • tricledrown 4.1

      Locus even if Key wins the election he will be in permanent damage control as the privacy commission Ombudsman Electoral Commission Police McCready will all be looking into Keys corrupt govt.
      Then Winston Labour and the greens will be at his heals nonstop .
      Colin Craig is the only Right Winger with a clean “Slate,r? in this debacle and could pick up a lot of votes especially if he promises to have a full investigation to clean up this underhanded corruption of power!

      • Draco T Bastard 4.1.1

        especially if he promises to have a full investigation to clean up this underhanded corruption of power!

        And he can’t do that because the only people the CCCP can go into government with are National who will ensure that the inquiry has no teeth and can’t do anything.

  5. weka 5

    As an aside to that, part of Slater’s argument regarding Ede’s involvement is that there is only an email from a gmail account (I think the one where Ede says he is relieved he got into the website and got the data without being caught). Slater’s implication was that that gmail could have come from anyone or been fabricated by Hager. Technically, if one had access to the original received email, is there metadata that shows more detail eg an IP address?

    • locus 5.1

      “fabricated by Hagar” or ‘im lying to cover my arse’ by slater…. Hmmm let me think.

    • lprent 5.2

      Technically, if one had access to the original received email, is there metadata that shows more detail eg an IP address?

      Yes. Of course it is possible to fabricate that as well if you know what you are doing. It is just text. The same problem applies to almost all evidence that goes before courts. There are very few things that can’t be faked.

      That is why courts don’t just look at single items. They look at the patterns of behaviour.

      However it is unlikely in this case. The volume of emails and material carries its own signature. In this case the reek of sociopathic arseholes reeks out of the conversations of Ede, Collins, Slater and others. This is a stench that bloggers and others have become used to whiffing from many of the right wing blogs.

      • weka 5.2.1

        Ok, just wanted to check that Slater’s argument was part of his general bluster and didn’t have any meaningful validity.

    • Cameron Slater is in a position to confirm whether or not the email was received by him, whether or not he thought it was from Jason Ede and whether or not he was working with Ede at the time to access the Labour server.

      The interview that I presume you are relying on in making this point was by Lisa Owen (link here – thought you might want it provided 🙂 ).

      The critical questioning from Owen begins at about 2:00 minutes. Slater claims he can’t answer on behalf of Ede but, oddly, seems to believe that that includes not answering for his own understanding – e.g., whether or not he was working with Ede, whether or not he believed the gmail email was (a) valid and, if so, (b) it was from Ede.

      Slater in that clip uses an illogical defence for his reluctance to comment. It makes no sense. A reasonable conclusion, certainly in my opinion, is that he simply did not wish to confirm the inference and any reply ‘on the record’ would probably have had to make just such a confirmation.

      • weka 5.3.1

        I agree, Slater ran an evade and equivocate defense. My question about the gmail was more whether his implication had any meaning that people might believe.

        Lolz at the link, thanks! 🙂

  6. weka 6

    I’m still not clear on this bit about the website they accessed being ‘public’. Does this mean that Labour techs had put the data on the main website and failed to password protect it? Or was it in another part of the website and that was accesible from the main one. Or is that all irrelevent. Are these legal definitions we are talking about, or tech ones?

    If the idea is that the data was on a public website simply because it was accessible, does that mean that the data that Keith Ng accessed on the MSD network was also ‘public’ and it was ok for anyone to read it simply because they had access?

    I’d also like some clarity on this idea that anyone could access the data. Whether that literally means anyone eg there was a clickable link, or whether you needed a certain degree of technical expertise to know what to do.

    • mickysavage 6.1

      My recollection is that it had crashed because the index file had corrupted. Going to website looked a bit like browsing your hard drive. There were folders and files visible but clearly there was something wrong.

    • lprent 6.2

      It is a particular ‘feature’ of the apache webserver. The default display when there is no DocumentRoot file (usually index.html or index.php) on a virtual website (which most are) is that it displays a index list of the files.

      I think everyone who has ever used apache has had the particular problem happen to them.

  7. I’m unconvinced that my argument flies as well. I was thinking out loud. The arguments against it (for example, the one from lawyer Felix Geiringer in response to my comment) have quite a bit going for them. I don’t think it is clear cut.

  8. Kevin Welsh 8

    I would have thought that the words “…and without claim of right” from s49 (1) would be rather important here.

    • UglyTruth 8.1

      In the context of advising Labour that a major vulernability existed, claim for right would fly. In the context of Slater’s intent to “devastate the c**nts”, not so much.

  9. TheContrarian 9

    How is the case with the Labour website differ from Keith Ng and the WINZ computers?

    Genuine question

    • Lanthanide 9.1

      Keith Ng reported it to the authorities and didn’t deliberately read the information beyond the purpose of establishing what it was, or take a copy the information to use for any purpose beyond providing proof to the authorities.

      It really comes down to motive, as Lynn says at 1.1: Keith Ng and Slater/Ede clearly committed what is a criminal act, but Keith didn’t do it with criminal intent, and there wasn’t any proof that Slater/Ede were doing it with criminal intent until now.

      • TheContrarian 9.1.1

        Ah, right.

        Still seems a bit grey to me but my legal nous is zero.

        • Lanthanide 9.1.1.1

          In the US and UK, people who have done similar things to Keith Ng have had the book thrown at them (most notoriously, Aaron Swartz). To my knowledge it hasn’t happened in NZ.

  10. tricledrown 10

    Now Slater is claiming Labour caucus members are feeding him information whatever!
    This is pure BS!
    But Slater has slipped up major league claiming Key texts him everyday which makes Key a liar saying more recently. He only has contact with Slater 4 times a year!

    • Lanthanide 10.1

      If Slater gets so much information from the Labour caucus, he should release the emails to prove it.

      I’m pretty sure that if Hager had gotten emails in his trove that came from Labour party members talking to Slater, he would have published them too, because 1. That would be the right thing to do, and 2. it would defend against accusations of him just being left-wing.

      • lprent 10.1.1

        I would have expected that if there were instances of Labour MPs leaking then he would have done so.

        I’m also sure that if there were emails from Labour MPs saying something like “that post is wrong because…” then he would have not.

        My guess is that Slater is crotch clutching as he tries to bluster on the line. Other children have dummies. It is just his way of coping…. 😈

      • tricledrown 10.1.2

        If Slater had that info it would be all over his site and he would be crowing from his dung heap!
        Keys efforts to distance himself from Slater to make out he has no credibility!
        Slater slipping up on his oil saying he is regularly exchanging texts !
        Slaters own words from Te Aviv!

      • Puddleglum 10.1.3

        In one interview of Hager with Sean Plunket (link here) that I’ve listened to he says that there were about 2 or 3 or 4 contacts between left-wing bloggers and WhaleOil in the material he received – and there were absolutely no contacts with Labour people or any other parties.

        The relevant bit starts at about 7minutes 40secs in the link.

        • lprent 10.1.3.1

          Yeah. I have had a few severely polite emails to and from him.

          Usually about comments that he considered to defamatory. Usually he was right and I cleaned them up. I do those for anyone when we miss comments during moderation. I did one for Ian Wishart the other day. The offender got a 6 week ban for wasting my time by being stupid.

          Not sure if I did it with WO, but I also have offered tech advice to a number of bloggers over the years.

    • joe90 10.2

      Damn song sheets….

      Key revealed today that he speaks regularly with Slater.

      […]

      He confirmed he and Slater spoke regularly, including this week when they discussed Dotcom, but Key hedged when asked if Slater was his source.

      […]

      Key said he regularly called Slater, who broke the story of the Len Brown affair, “to see what he’s got on his site and mind”

      http://www.stuff.co.nz/national/politics/9723130/Looks-like-Slater-is-Keys-Peters-source

      • weka 10.2.1

        “He confirmed he and Slater spoke regularly,”

        What, 3 – 4 times a year like he was saying yesterday? 🙄

        It would be good to find a statement from him where he is more specific about the regular. Some of us thought it was weekly, and I suspect it will be in video somewhere rather than text.

        • Lanthanide 10.2.1.1

          Interview of John Key conducted on Wednesday morning before the book launch, (usefully) contained a surprising amount of information about Slater http://www.stuff.co.nz/national/politics/10392394/In-the-swing-of-things

          Roughan’s book says that in 1998 Key spent New Year’s at the Coromandel bach of National Party president John Slater – an early step towards his political goals. John is Cameron Slater’s father. I asked Key if the junior Slater was at Coromandel too. (At this point, neither Key’s team nor I knew Hager’s book was mainly about links to Slater.)

          “I don’t remember him being there. I don’t know Cam the way that people portray it.”

          What is the relationship then? Is Slater a friend?

          “No. He’s definitely not a friend. I’ve been at a National Party event when he’s been there. If I text him, or if he would send me a text, it might be once a month or once every two months. I read WhaleOil.”

          How does that compare to your contact with other political journalists?

          “Duncan Garner I would talk to way more often. Or someone like David Farrar, because he’s our pollster. With Cam, if I text him it would be because he had some really random blog. I might send him a text and say ‘Is that really real?’, or ‘Who’s the person who’s really behind that?’ It would be curiosity.”

          Have you given Slater story tips?

          “I don’t do stuff with him, believe it or not. I don’t leak because I don’t need to. Look, ministers might feed things, and other people might feed things, but I just don’t do that. If I want to do something I just say, ‘I’m doing it.’ “

    • Puddleglum 10.3

      Hi tricledrown,

      Where does Cameron Slater say that Key texts him everyday?

    • disturbed 10.4

      RNZ said slater said that Labour feed him files too.

      Why is RNZ peddling in junk reporting?

      Perhaps Labour has to release a legal press release to stop Slater lying?

  11. tricledrown 11

    Slater is making up more lies to cover the original lies!

  12. Rodel 12

    LP
    Love this sentence of yours.

    ‘ In this case the reek of sociopathic arseholes reeks out of the conversations of Ede, Collins, Slater and others.’

    Ever thought of writing a book? (Seriously)

    • lprent 12.1

      Nah. I’m good at writing impactful and memorable statements. However (as Lyn would point out) there are two “reek(s)” in that statement.

      It should have been “In this case the stench of sociopathic arseholes reeks out of the conversations of Ede, Collins, Slater and others.”. I’m not much into editing my comments to literary standard. They don’t provide a compiler for that.

      My partner Lyn is the writer – keep an eye out for her blog in our feed – called “something from the edge”. Much better written. Not nearly as much impact 😈

  13. What amuses me is that Key, Ede, Slater, et al, thought they could keep this hidden forever?

    If the Cunliffe leadership-trust thing has shown us anything, it is that political secrets are nigh on impossible to keep in a small country like our. Eventually it all comes out.

    The Nicky Hager book has done the Left a real favour. No ,I don’t mean crucifying Slater and Ede in public.

    The real lesson for us is to keep our own noses clean and avoid Dirty Politics, smears, lies, etc, at all costs. Because eventually, we would be found out as well.

    Ironic in a way… about a year ago I had material handed to me that could have caused some embarressment to a local political figure. I wrote up the blogpost. Then sat on it. Thought about it… finger hovered over the “publish” button…

    And then my own version of a “spidey sense” (fans of Stan Lee will get the reference) tingled and, as always, I heeded the warning. I decided not to publish it. Thankfully.

    Do I want to go down the road of being the “Whaleoil Of The Left”?! Gods, no. I may have been irresponsible and reckless in my youth – but that youth is long gone, and consigned to history. I grew up.

    Maybe, one day, Cam will as well.

  14. disturbed 14

    Pink Postman.

    “Democratic Pacific Union and not a word about Crosby -Textor.
    & The taxpayers union”

    Pink Postman, can you advise who bankrolls them as we are very worried it is either interested Corporations or our Tax base Government funding that may be funding these fronts for the far right.?

  15. DS 15

    Unfortunately, there’s almost no case law in this area, so it’s difficult to say just what a court’s >interpretation might be in this sort of scenario.

    Well, we do have case law about 240(1)(d), which is a similar branch of law (causing loss by deception), and that suggests that in order to be criminal the loss must be quantifiable, foreseeable, and a direct result of the deception. I honestly can’t see a s249 prosecution working.

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