Legal Beagle by Graeme Edgeler

53

Cameron Slater: computer hacker?

In September last year, David Parker laid a complaint with the Police about a supposed “hack” of the Labour Party website by Whaleoil blogger Cameron Slater. On Friday, Police released a letter explaining that their investigation was over, and they were satisfied that “there was no evidence of criminal offending”. They considered that while the matter “may raise privacy and ethical issues, these are not the domain of the criminal law.”

I will be clear: based on what I understand occurred, I do not think Cameron Slater’s “hack” of the Labour Party server donor’s list was criminal. I think an interpretation of the law that would mean that what I understand Cameron did was criminal would make illegal a lot of things that I do not think should be illegal, and think that we should be reluctant to interpret the particulars laws in play here in a way that would render a great deal of ordinary computer use subject to prosecution.

The possible offence we are considering is the offence against section 252 of the Crimes Act: accessing a computer system without authorisation. You commit a crime if you:

  • intentionally access (directly or indirectly)
  • any computer system
  • without authorisation
  • and you either know that you are not authorised to access that computer system, or are reckless as to whether or you are authorised to access that computer system.”

But the law comes with a caveat: this offence is not committed “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.”

For me, this subsection means that Cameron, who was, like the rest of us, authorised to go to Labour’s server to look at Labour’s website, was not committing a crime by looking at the other files that Labour had left open to view on their server.

But I have to concede that my interpretation has problems. I have authorisation from Google to access its servers to check my gmail account. I do not have authorisation from Google to access their servers to read your gmail account, but the interpretation I favour does mean that my hacking a gmail account of someone else, which I clearly have no right to access, may not be criminal (although there are other offences that might be committed if there's dishonesty involved, or I cause damage) because I would be accessing gmail’s servers (which I am authorised to do, to read my emails) for a purpose other than the one for which I was given access.

And there are arguments for an alternative interpretation of the law. The definition of computer system is open to some interpretation

computer system—

(a) means—

(i) a computer; or

(ii) 2 or more interconnected computers; or

(iii) any communication links between computers or to remote terminals or another device; or

(iv) 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and

(b) includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data.

You will note that “computer system” includes “any part” of a computer system.

The drafting of the definition in this way is, I think, intended to forestall arguments that someone has not accessed a computer system because all they actually did was access some small part of it. The argument “I didn’t access their computer system, all I did was access their hard drive” doesn’t fly.

But the definition can be argued the other way. The part of the gmail servers that contain your gmail account, is defined as a computer system. I may have permission to access other computer systems owned by Google, like the parts of their servers that contain my gmail account, but I lack authorisation to access that part which contains your (which, under this interpretation, is a separate computer system), and I could thus commit a crime if I access it.

I think this interpretation proves too much, in that it would render the caveat almost meaningless. If your work denies you permission to access the part of the hard drive which contains solitaire, but you play solitaire anyway, I think your actions should be protected by that caveat: you have permission to use your work computer, and your use it for a purpose other than work, may be an employment breach, which if serious enough, or repeated enough, might be grounds for termination, I don’t think it should be criminal.

But I have to concede that the argument can be made, and that my position does, in some respects, try to narrow the definition of computer system which might be seen as clear.

Which brings me back to the police investigation. The Police have said they don’t consider there was crime. That conclusion accords with my view, but the debate is a legal one.

I have been asked a few times about the possibility of private prosecutions arising from Nicky Hager’s Dirty Politics. My advice is generally that prosecuting is hard: the defendant has a right to silence, you have to prove things beyond reasonable doubt, and private prosecutors can’t get search warrants. Dirty Politics contained several claims that could be allegations of criminal activity, but they will be difficult to prove without the coercive powers of the state.

But that caution doesn’t apply here. There is little if any factual dispute about what has happened here. It is not going to be difficult to prove that Cameron accessed the Labour Party website, or how it was done: Cameron published a video showing how he was able to access the information Labour had on its server. It is still online now.

What is left is a legal argument over whether what has been admitted amounts to criminal conduct.

Like I have said, I don’t think what Cameron explains doing in that video is criminal, but I know that some people in whose legal judgment I ordinarily place much confidence disagree with me, so I have to be open to the alternative view. If Labour seriously considers that what Cameron Slater did in accessing their server amounts to criminal hacking, a private prosecution to resolve the question will not be difficult.

I hope that, absent new evidence, a prosecution would fail, but for those who disagree with my view, the way forward is clear.

15

Necessity: or the Sky is Falling

Yesterday, Parliament went into urgency to pass a law to validate 10+ years of speeding fines, in an un-named number of council areas, thought to be up to 25.

I opined (can you tell I read Biggles books growing up?) on the Twitter (can you tell I watched Letterman?) that, just once, when we were told that an urgent law change was needed to patch some legislative mess, we should just say no, and see what happens.

But then, I remembered that had – albeit accidentally – already happened.

In 1990, New Zealand passed the Bill of Rights Act, which included a right to appeal convictions. Shortly after this, the Crimes Act was updated to provide for this right, expanding what had previously existed, which was the ability to apply for leave to appeal (if you couldn’t convince the court that your arguments were good enough to listen to, permission to appeal was denied, and you didn’t get to argue your appeal fully).

Because of this law change, the workload of the Court of Appeal increased. But they weren’t really set up for it, and they started cutting corners. Criminal appellants who arranged their own lawyers got full appeals, but those who were relying on legal aid (which for appeals, was then administered by the Court of Appeal) had extra hoops to jump through. A criminal would file a notice of appeal themselves (coming up with the arguments they could, usually without legal advice, and without access to important trial documents) and would ask for a legal aid lawyer to be appointed. The registrar of the Court of Appeal was supposed to consider whether legal aid should be granted, which required consideration of the interests of justice, in respect of which the input of a Judge could be sought. A practice developed whereby one judge would be asked, they would refer the matter to two other judges (all assisted by recent law graduate judge’s clerks), who would sign an internal legal aid document that agreed or disagreed that the interests of justice required a grant of legal aid.

If legal aid was denied, that was basically it. The person appealing wasn’t sent a “case on appeal” (which is all the important documents from the trial, including, for example, the trial transcript, and the judge’s summing up), despite the rules requiring this. They were usually told they could file their own submissions, but their case was never set down for oral argument, despite the rules requiring this as well. The Government didn’t send along a lawyer to argue for the Crown (that too was legally required, and is occasionally the reason an appeal succeeds!).

All that happened was that the case was set down to have the decision announced in open court. If submissions had been filed, there might be brief comments responding to them, but there was no full decision, and, quite often, the announcement of the decision would be at a different time than that which was announced. The judges officially dismissing the appeal might have been involved in the legal aid process, or might have had no knowledge of the case at all. On 29 June 2000, only one judge was present in Court to summarily dismiss two such appeals, and being aware that the Judicature Act required two judges to announce a decision, Justice Keith (who later became a judge of the World Court) apparently invited the Court registrar to take part, and both appeals were formally announced as being the decisions of Keith J and Madam Registrar.

This system had been going for about 10 years when it was finally challenged. There was a High Court case judicially reviewing the decision of the Court of Appeal registrar on legal aid, which the High Court, expressing some concerns, ordered to be heard in the Court of Appeal. The Court of Appeal, decided the case in a split decision, and leave was sought to appeal the decision on the Judicial Review to the Privy Council. The Court of Appeal hearing the application for leave to appeal, decided that, despite the case being a judicial review, it was nonetheless a criminal case, and they couldn’t grant leave to appeal. Lawyer Tony Ellis apparently elicited gasps from the other lawyers present by telling the Court that “there isn’t a carpet big enough for you to sweep this under” when the decision was announced. He was right.

Ultimately, instead of appealing the judicial review decision to the Privy Council, lawyers Tony Ellis and Antony Shaw found a group of people whose convictions had been summarily dismissed in this way, and bundled them together in an appeal of their criminal convictions to the Privy Council.

Which is where we get to the validating legislation. After the cases reached the Privy Council, but before it had heard the appeal, or issued judgment, the Government reacted, and moved to pass legislation that would validate the other appeals that had been heard in this way. It wasn’t all stages urgency, but at first reading the bill was sent to the Government Administration Committee for only two weeks. It proved difficult, and the time was extended. Later still, the Bill was re-referred to the Justice and Electoral Committee, to which a group of Court of Appeal judges gave a briefing pressing for the passage of the bill, and the bill actually took over a year from introduction to passage, but it nonetheless passed before the Privy Council heard the case (there was a carve out for the particular cases already before the Court, but the legislation was intended to validate other similar appeals that had failed to comply with the Crimes Act appeal provisions, or the Court of Appeal Rules).

In March of 2002, the Privy Council did rule against the government, ordering the Court of Appeal to hear each appellant’s appeal again. And it did so in a particularly emphatic manner. Not only did the Privy Council find breaches of the Crimes Act, and Court of Appeal rules, but they invalidated the appeals on a number of other grounds as well. Which, of course, meant that the validating legislation didn’t actually validate anything. The practices of the Court of Appeal had been found seriously wanting, and the findings of around 1500 criminal appeals were in question.

This was the Armageddon that officials, and the even judges of the Court of Appeal had warned about. The feared consequences that had necessitated the passing of retrospective validating legislation had in fact occurred, because the validating legislation itself hadn’t done enough to fix the problem.

And the Government decided that, actually, it wouldn’t try again. A test case was brought to the Court of Appeal from among those affected by the unlawful appellate system, but who had not been included in the Privy Council appeal to see what would happen (this was Phillip Smith, now more famous for fleeing to Brazil, and currently facing charges of escaping prison), and the Court of Appeal decided that, he, like those who had gone to the Privy Council, would get a new appeal, and that anyone else who had had their appeal denied after being refused legal aid would be able to apply for a new appeal as well.

The Ministry of Justice advertised the availability of these re-hearings in prisons, and elsewhere, and hundreds of convicted criminal got new appeals. One of the Privy Council appellants, whose appeal had been deemed so hopeless that he shouldn’t even be allowed a lawyer to argue it, had his murder conviction overturned, and at his re-trial was convicted of manslaughter. Another of appellants, who had been convicted and sentenced on the basis that he was the ring-leader of an armed robbery, was in a later case determined to be so intellectually disabled that he was unfit to even undergo a criminal trial.

Most of the people who got new hearings didn’t win their appeals. But that is true of most criminal appeals. And it turned out that those who sought new appeals were only slightly less successful in their appeals than ordinary criminal appellants.

The worst case scenario actually happened. Ten years of Court of Appeal decisions in serious criminal cases were threatened, but the Government decided to re-legislate to fix it, and the sky did not fall in.

Which makes me wonder about yesterday’s urgent legislation to validate speed limits and speeding tickets.

What actually would have happened if legal process had been allowed to play out? I reckon very few people would actually have appealed five- or ten-year-old speeding fines (it was a fair cop, even if the posted limits had expired), but the Minister of Transport has said this wasn’t about revenue, but safety. Well, even if there aren’t speed limits, dangerous driving would still be illegal, and careless driving would still be illegal, so driving at 150km/h in a school zone would not suddenly go unpunished.

So I'm not convinced this was necessary. I’m not sure what the worst case scenario they fear is, but I doubt the sky would have fallen in, and maybe, one day, Parliament will again decide to chance it.

30

Somewhere* it's National Library Week

It being National Library week,* I thought this might be timely to post.

I’ve decided Auckland City Libraries are quite cool. First, they came up in Prime TV’s fantastic documentary series “The Naughty Bits” (its three episodes are all on-line here, and well worth watching), where they and Dylan Horrocks (whom I’ve also decided is cool), were discussing Alan Moore’s graphic novel Lost Girls, and concerns it might be seen as promoting the sexual exploitation of children (update: since the show was made, Lost Girls was rated R18 and is back in the library, although I’m not sure if the missing volumes have been replaced).

Then, there was their response to the petition asking them to withdraw from circulation the book To Train Up a Child (which has, I think probably reasonably fairly, been described as a manual for child abuse). The petition was a bit confusing, but the response was still strong:

There’s debate at the moment about a book we have in our collections called ‘To train up a child’ by Michael and Debi Pearl. We acknowledge this book is divisive and people may find its content offensive.

At Auckland Libraries our collections development policy defines our commitment to the principle of freedom of access to information and states that the library will not suppress or remove material on the grounds that it gives offence. 

I greatly admire the position libraries take on issues like this. The response from Auckland Library is exactly the position I want a library to take, and I’m glad they see their role as supporting freedom of expression.

I’ve had some push back on this view. And there are different debates to have on this issue. When you try to defend the libraries decision, you're asked to defend the book, which is obviously harder.

There is the debate on whether the book should be banned. On free speech issues generally, and censorship issues more specifically, I am about as staunchly in favour of freedom of expression as it is possible to be. I am not sure there is any text I would censor, in the way we use that word in New Zealand. Lots of expression is illegal, but far less is censored. I agree that death threats should be illegal, but they aren’t censored: it’s not illegal to possess a written death threat, in the sense that it is illegal to possess Postal 2: Share The Pain, A Guide to Growing Marijuana in Cool Climates, Critic Te Arohi 23 of 2005, or an image of child sexual exploitation.

But that’s not a discussion about the role of libraries, that's a discussion of the proper test Parliament should set for the Censor to apply when considering banning material.

And the debate about whether the purchase of this book was an appropriate use of ratepayers money is a different one too. The book had apparently been borrowed 10 times before the current uproar, what might be the standard metric appears to have been met by Auckland Libraries. But even a library system the size of the Auckland City Libraries cannot buy every book, so the proper use of its limited collections budget is a matter properly for debate. I don’t think anyone can seriously suggest a library could have an obligation to buy this book to make it available to the public.

But that too is a different debate, because for good or ill, Auckland Libraries has already bought this book, so we can’t talk about saving ratepayers money. Instead we are discussing what a library should do, when they find themselves in this situation. In short, what is the role of a library? Should a responsible custodian of a public information resource make this book available to the public, knowing what it contains?

I’ve long thought the role of libraries was to do just that, and am pleased, but not really surprised that they think so too. I’m sure this has not always been the case, but there has been discussion within the library community, and they are about as staunch on censorship as its possible to be.

In 2002 the Council of the Library and Information Association New Zealand Aotearoa adopted a Statement on Intellectual Freedom. I was going to quote from it, but I think I’m just going to quote it:

1. Society creates libraries as institutions to store and make available knowledge, information, and opinions and to facilitate the enjoyment of learning and creativity in every field. Every library has a responsibility to provide its users with the widest range of information materials possible, which are within the constraints of its budget, relevant to its users' requirements, and which represent the spectrum of points of view on the topic held in the community.

2. Librarians have a responsibility to ensure that the selection and availability of information materials is governed solely by professional considerations. In so doing, they should neither promote nor suppress opinions and beliefs expressed in the materials with which they deal. These professional considerations include the use of knowledge, skills, collection management experience, and collection development policies to make decisions on what is selected for the library collection.

3. No information resources should be excluded from libraries because of the opinions they express; nor because of who the author is; nor on the grounds of the political, social, moral or other views of their author.

4. No library materials should be censored, restricted, removed from libraries, or have access denied to them because of partisan or doctrinal disapproval or pressure. This includes access to web-based information resources.

5. Librarians should resist all attempts at censorship, except where that censorship is required by law. Librarians are free to request, and to lobby for, the repeal of laws, which compromise the principles set out in this statement.

While I’m particularly drawn to the last couple of paragraphs, I think the whole thing is pretty wonderful.

The same sentiment is contained in the International Federation of Library Associations and Institutions’ Glasgow Declaration on Libraries, Information Services and Intellectual Freedom:

Libraries and information services contribute to the development and maintenance of intellectual freedom and help to safeguard democratic values and universal civil rights. Consequently, they are committed to offering their clients access to relevant resources and services without restriction and to opposing any form of censorship.

Auckland Libraries incorporates these principles into their collections policy, and I think they're doing great work in meeting the standards they've set themselves. They don't see themselves as a censor, and are going to hold to that whatever the pressure: if you want censorship, go to the Office of Film and Literature Classification, not a library. These considerations form part of Auckland Libraries' Collection Development Policy, which incorporates both the LIANZA Statement on Intellectual Freedom and the LIANZA Statement on Access to Information.

The usual course of my blog posts is a correction, or a complaint, or some observation about how some law works, or doesn’t. Today, during National Library week*, I just thought I’d say thank you to Auckland Libraries. I think about freedom of expression a lot, and also about particular parts of it, lots about media freedom, about access to justice, and freedom from censorship, even occasionally about academic freedom, but I’ve never really thought about intellectual freedom, and now – because you’re doing such a great job upholding it – I will.

(*in America, maybe we should have one too!)

17

Compensation for Teina Pora?

Teina Pora is innocent.

The Government, having considered the matter, apparently agrees he should not be re-tried. It is not clear whether the Government agrees he is innocent, but I suspect they don’t.

With no re-trial ordered, Pora’s involvement with the criminal justice system over Susan Burdett’s rape and murder are over, and his lawyers will likely now raise the possibility of seeking compensation for the time he ought not to have spent in prison.

I’ve been meaning to write about compensation for miscarriages of justice for some time. One of Pora’s lawyers, Malcolm Birdling, wrote his doctoral thesis on the correction of miscarriages of justice, and was rather scathing. But the broader discussion will have to wait for a day when I have a little more time.

Cabinet has issued guidelines about who qualifies for compensation under its ‘ex gratia’ scheme. Before anyone gets compensation for having served prison time for a wrongful conviction, they have to convince the Government they are probably innocent. The Government will consider claims from people who fall outside the guidelines, but imposes an additional hurdle before they will qualify.

People who want to claim for a wrongful conviction, but who fall outside the guidelines must prove not only that it is more likely than not that they’re innocent, they must also show that there are “exceptional circumstances”, which the government says is a very high test. An example of an exceptional circumstance that has been accepted in the past is that the person isn’t just probably innocent, but is innocent beyond reasonable doubt; others include serious wrongdoing by authorities, or police failing to investigate claims of innocence during their investigation.

David Bain was acquitted at trial, so his claim for compensation falls outside the guidelines, which makes his claim a lot harder. Justice Binnie looked at his case, and determined there were exceptional circumstances (in part, for example, because police had destroyed evidence following the conviction, making challenging the conviction more difficult), but the government was a little snippy about his views on that.

So what of Teina Pora? Earlier today, Canterbury University’s dean of law Chris Gallavan was on Morning Report, and had the following exchange with Susie Ferguson:

SF: Now, not having an automatic retrial in this case, will this work in Teina Pora’s favour for compensation?

CG: It does, actually, and if anybody looks up the Cabinet Manual, the guidelines to Cabinet on the granting of this compensation, they’ll see that the first criteria is actually squarely in the Teina Pora situation, that there’s either been a pardon or that the conviction’s been quashed on appeal without an order for a retrial, which is exactly what’s happened here.

The Minister of Justice, Amy Adams, has apparently made similar statements, as have Otago University’s Marcelo Rodriguez-Ferrere, Ingrid Squire (another of Teina Pora’s lawyers), and, as it happens, me in a tweet or three the night the Privy Council’s decision was released. Now that I’ve actually checked, it seems we are all wrong.

The place to look is, as Chris Gallavan suggests, the Cabinet guidelines, and I copy the appropriate bit below:

1. The category of claimants who shall be eligible to receive compensation or ex gratia payment in respect of being wrongly convicted of offences (qualifying persons) is limited to those who:

(a) have served all or part of a sentence of imprisonment; and either

I. have had their convictions quashed on appeal, without order of retrial, in the High Court (summary convictions); Court of Appeal (including references under section 406 of the Crimes Act 1961); or Courts Martial Appeal Court, or

II. have received a free pardon under section 407 of the Crimes Act 1961; and

(b) are alive at the time of the application.

The requirement that the convictions be quashed on appeal, without order of retrial is there. But the eagle-eyed among you will notice that a person only falls within the guidelines if the conviction is quashed in the High Court, Court of Appeal, or Courts Martial Appeal Court. And Teina Pora’s conviction was not quashed in the High Court, Court of Appeal, or Courts Martial Appeal Court.

The guidelines do not mention the Privy Council. I think the distinction that the guidelines make is a stupid one, especially in light of the creation of the Supreme Court, which is also not mentioned. But the distinction is nonetheless there, and any claim that may be made by Teina Pora falls outside the guidelines, and thus may require proof of exceptional circumstances.

I am hopeful that pragmatism may prevail (especially in light of Amy Adams’ comments), but given the New Zealand Government’s historical practice when it comes to correcting miscarriages of justice, I’m not sure that hope is well-placed.

How much might Teina Pora get? The guidelines set a base figure of about $100,000 per year of incarceration, which can be increased in "truly exceptional" circumstances. As for how much Pora should get, well, if the headline the day after compensation announced couldn’t be mistaken for a news story about a powerball jackpot, I reckon the Government will have secured a bargain.

19

What next for Winston?

The preliminary results of the Northland by-election were released last night. A few overseas votes will be winging their way back to New Zealand, and checks will be made over the eligibility of those who cast special votes, but Winston Peters has a lead of over 4000 votes, so the official vote isn’t going to change the outcome.

This means the National Party is down one on their election result: an electorate MP has resigned, and been replaced by someone from another party. Just like when this happened in the Te Tai Tokerau by-election, and the Te Tai Hauauru by-election, there’s no way for the party that previously held the seat to get a replacement except by winning.

There has been some dispute about what the law provides in these circumstances. I am entirely confident. I believe the Electoral Commission is confident also.

Winston Peters is currently an MP, a member of Parliament because his name was sufficiently high on New Zealand First list that he got elected with the help of New Zealand First’s 208,300 voters.

Like all MPs, Peters can resign. If he resigns, then section 55 of the Electoral Act says there is ‘vacancy’. If that vacancy arises before the writ is returned then that vacancy will have been caused by the vacating of a “seat of a member elected as a consequence of inclusion of the member’s name on a list”. I do not think it can be suggested that if Peters writes a letter of resignation to the Speaker, the Speaker can do anything other than accept it, and declare a seat vacant, as has happened every other time a list MP has resigned. The Governor-General will then order the Electoral Commission to undertake the process to replace him with someone else on New Zealand First’s list.

We shouldn’t assume that Ria Bond (or anyone else from the New Zealand First list) will become an MP next week. Winston Peters probably wants to be in the House next week, and the official count isn’t due for another 10 days. After that, there’s 3 working day period in which a judicial recount can be requested, and assuming that doesn’t happen, the ‘return of the writ’, officially declaring Winston Peters to be the member of Parliament for Northland, will happen on Tuesday 14 April.

Before then, we all assume Winston Peters will resign. But Peters is not required to resign, and has said he may not. The Electoral Act does not automatically declare a vacancy if a person who is already an MP wins a by-election. He can, if he wants, simply leave Parliament one MP down on its election result total. Philip Lyth has an interesting post here asking whether it is possible that if Winston declined to resign, could the Speaker, with or without assistance from the Privileges Committee, force a vacancy in his list seat? Philip asks:

But what if the Speaker considers that a list vacancy has arisen?  This is an area where the law is unclear.

I disagree, While I still consider the result would be the same, I would have agreed with Philip (and David McGee, writing in 2005) that there was room for debate, but for one matter: late last year, Parliament enacted the Parliamentary Privileges Act. Section 23 of that act makes clear that the Electoral Act is the only mechanism by which an MPs seat can become vacant:

23 Members' seats become vacant only as provided in Electoral Act 1993

(1) The House has no power to make a member's seat become vacant by expelling the member (whether to discipline or punish the member, to protect the House by removing an unfit member, or for any reason or purpose) from membership of the House.

(2) Subsection (1) overrides any law to the contrary.

A list MP winning a by-election is something we’ve discussed before, but it’s never actually happened so it will be interesting to see how it plays out. However, if Winston does resign, then the identity of the person who will replace him is, at least officially, out of his hands. The law requires the Electoral Commission to ask the Party Secretary if the next person on the list remains a paid up party member, and if so, requires them to ask that that person whether they agree to become an MP (if not, the same process is followed with the person next on the list). The New Zealand First board doesn’t officially have a say, but there is nothing to stop it asking a particular potential replacement to say no to the Electoral Commission. This has happened before: it took some cajoling, but ultimately both Mike Ward, and Catherine Delahunty agreed to step aside to allow Russel Norman to become a list MP with the resignation of Nándor Tánczos.

I agree with Philip that some clarity in the law would be nice. In light of the Parliamentary Privilege Act, I don't think there is debate about Peters' options now, but if Peters were to decline to resign, I'm not certain what would happen if he was, for example, hit by a bus later in the year: would any future vacancy after Winston is formally elected as MP for Northland result only in a by-election in Northland, or both a by-election, and a list replacement?