Investigative journalist Nicky Hager. Photo / Supplied
Activists of the left and right are united against what they see as dirty politics from the New Zealand Police and Westpac bank. The Police and Westpac are accused of breaching Nicky Hager's privacy, in what many believe to be a concerted state campaign to undermine an investigative journalist who has been a thorn in the side of the government. This debate and controversy was sparked by David Fisher's news report, Police got Hager data without court order.
Fisher has updated this with a report today, Chilling details of intrusion into Nicky Hager's privacy. This report suggests that the controversial use and abuse of personal information by the state and corporates is quite common.
The alleged excessive use of state power, and Westpac's willingness to abide by it, has been condemned by activists from across the political spectrum. This is a useful reminder that libertarian philosophies and concerns about civil liberties cut across the traditional ideological divide.
The most prominent libertarian of the moment, Edward Snowden (@Snowden) even tweeted about the privacy breach to his 1.6m followers, sending them to a Radio New Zealand report, Police obtained Hager data without court order.
Journalist Seymour Hersch, who also has a high profile globally, spoke out about the wider police intervention against Hager - listen to the Pulitzer-prize winning journalist's 6-minute interview on Morning Report: Government's treatment of Hager is 'dramatically wrong'.
On the right of the political spectrum, Matthew Hooton (@MatthewHootonNZ) was quick to condemn the bank for giving Hager's information to the Police, saying "Don't bank with @Westpac. Whatever you think of Hager, this is a fucking outrage".
He wasn't the only one on the right to come out on Hager's side. Rodney Hide has a column in today's NBR (not online), in which he strongly criticises the Police and the bank, but also draws a picture of a bigger problem in New Zealand political culture - deference to authority. Hide says that "we are ready to do as we are told - and more than ready to dob in those who don't. And when someone in authority wants something, we give it to them. No questions asked." He concludes that the Establishment gets its way too easily: "Thanks to Mr Hager, we are reminded just how easily we are to govern."
This is also a point well made by the NBR's political editor, Rob Hosking, who argues that authorities should "have to justify themselves to citizens - not the other way around. Citizens themselves need to remember this - and not seek to toady up to every authority figure that comes along" - see his column, Hager, toadying and the 'company policy' copout (paywalled).
Hosking's wider point is this: "There is, as noted here many times over the past couple of years, a creeping authoritarianism from the current government - and, in fact, across the political culture, with government support partner the Maori Party, as well as Labour and Green parties, moving in more authoritarian directions. It is not about - to use those hackneyed terms - "right" versus "left." It is about, in the end, free citizens versus over-reaching, arrogant officialdom."
Many of those on the right who oppose Nicky Hager are taking his side on the issue - for example, see Peter Cresswell's blog post, Nicky Hager: Ugly man, ugly invasion of his property. Cresswell argues that the need for the Police to get warrants "is a small but valuable piece of due process providing all individuals some legal protection against abuse by the authorities".
Tweets from the left have also focused on civil liberties. For example, Chris Trotter (@BowalleyRoad) responded to the news by tweeting, "The covert cooperation of powerful institutions. Nicky Hager's treatment by Westpac and Police is a wake-up call for every sentient citizen." You can see more social media views in my blog post, Top tweets about the Police-Westpac breach of Hager's privacy.
A more in-depth critique comes from blogger No Right Turn, who strongly condemns Police procedures: "The police defend this practice as "just asking", but that's disingenuous. The fact that they wear a uniform and represent the state means that their requests are never just requests, but are instead by default viewed as legitimate demands which should be obeyed. And police exploit this obedience and desire to cooperate to the full - in this case, to demand extensive and intrusive information on a journalist (including his finances, his phone metadata, where he'd travelled and who with) in a purely political investigation aimed at uncovering and punishing someone for embarrassing the government of the day. Its a gross abuse of power." - see: An unwarranted demand for information.
See also, Anthony Robins' blog post on The Standard: Angry at Westpac.
Many journalists and media organisations are also speaking out against the actions of the Police and Westpac, as well as defending Hager's right to claim journalistic privilege against police raids. Press editor and Media Freedom Committee chairperson Joanna Norris has spoken out on the case, arguing that "Special consideration should also be given to journalists who may have an obligation of confidentiality to their sources" - see Vernon Small's Nicky Hager seeking "full and frank" disclosure from Westpac over data. Norris warns "every journalist could be investigated and their records released just because they had talked to someone who may have committed a crime."
Vernon Small also condemns what has happened, saying it "should send a shiver down the spine" - see: Private data deserves greater respect than Westpac showed Nicky Hager. He explains: "It would be bad enough if the police had come seeking the records of a member of the public but it is more chilling still when it is a journalist, who relies on being able to keep his or her sources confidential and who will on occasions interact with people 'of interest to the police'."
And other journalists are weighing in. Dita DeBoni says "whether you like Nicky Hager or not, whether you agree with what he set out to do or not, there is something rotten about the way the police acted in the case - and something profoundly out of order about the way Westpac Bank rolled over" - see: Privacy right is not a right when not 'right'.
See also, Rachel Smalley's Hager's info handover unacceptable. She says the Police-Westpac actions are "something that should make us all feel uncomfortable".
Of course, some might think this is self-serving on the part of the media. Certainly that's the view of Cameron Slater, who has responded to Vernon Small's opinion piece with a blog post, What about respect for my privacy, Vernon?
Slater complains of a double standard: "Yes it grates, that they so willingly breached my privacy and yet cry a river of tears for Nicky Hager's." Furthermore, he says, "The sanctimony and hypocrisy of the media to even take the side of Nicky Hager on this issue is unbelievable. Not a single journalist has asked me for comment as they write the pro-Hager pieces."
Slater might have some support from journalist Karl du Fresne who recently asked: Can Nicky Hager really be called a journalist? Du Fresne has some praise for Hager's work, but doesn't think he qualifies for special legal treatment: "What he does is entirely legitimate and even praiseworthy in an open democracy, providing it's done lawfully. Hager's books make an important contribution to informed debate and help voters make decisions on important issues, such as state surveillance and honesty in government. But does that make him a journalist? I don't believe so."
Hager has challenged the decision to raid his house a year ago, taking the Police to the High Court. Justice Denis Clifford's judgment on the case is due anytime now - in fact it was supposed to come out by the end of October.
The decision could be complicated by a recent Supreme Court decision on another matter, which might put Hager in a more vulnerable position with the law - see David Fisher's Court decision puts Hager back in frame.
It seems that the Supreme Court's decision about the definition of hacked computer files could make Hager's claim of journalistic privilege more difficult to sustain, and could even lead to charges against him. According to Fisher, "Hager may face criminal charges over accepting the hacked material used to write the bombshell book".
For a background discussion on the Supreme Court decision, see Andrew Geddis' blogpost, Dixon v R: An easy case that raises hard questions, and also Anthony Robins' Technology and the law - and going after Hager.
But an editorial in today's New Zealand Herald suggests that Hager should be safe, because even with the new Supreme Court decision, the journalist's work was clearly in the public interest - see: Dirty Politics passes public interest test.
Here's the key point of the editorial: "Putting aside political allegiances, the book did shine a light on aspects of the modern political world which had previously been in shadow. As a result, the public is better informed about the way our democracy operates. The Supreme Court's ruling suggests receiving illegally obtained email may be a crime. On this basis, Hager's challenge to the police search of his house may be harder to sustain. But since his book served a public interest, free speech should prevail."
Finally, the court records from the Hager High Court case have now been made public - including an affidavit written by myself. These have all been published on the Scoop website - see Alastair Thompson's Inside The Hunt For Rawshark - The Hager Raid Court File.