By CHRIS BARTON
"In New Zealand there is no law against hacking." I've been hearing this statement since about 1985.
At first, like many, I accepted it was true. But lately I've come to realise it's a lie. And that behind the lie is a hidden agenda.
Just look at how well New Zealand courts are dealing with hackers.
The latest was Jodi "Venomous" Jones, who last week pleaded guilty to wilful damage when hacking internet provider Web Internet.
In June 1999 Borislav Misic was convicted on three counts of fraud for hacking into Telecom's network to evade paying for international phone calls.
After Misic came Andrew Garrett, found guilty by a jury in July 2001 on four counts of fraud and one of threatening to damage property using software from the hacking group Cult of the Dead Cow.
These are just a few of the examples. Last year there were 172 cases where a computer was used to commit an offence.
That's about a quarter of the 710 cases investigated by the police e-crimes unit.
The bulk of its work involves non-electronic crimes such as murder, burglary and drugs in which computers provide evidence.
The numbers also show that fraud (87 cases) is the number one e-crime, followed by indecent publications offences (45), threats/intimidation (26), theft (10), bomb threats (two), currency and counterfeiting offences (one) and extortion (one).
Hardly an e-crime wave. So why the hysteria about hackers? It's partly a matter of definition. Just hacking into a computer system to look is not illegal, say the law makers and enforcers.
Given the success of our existing laws in dealing with hacking for a dishonest purpose, I'm beginning to wonder whether that's a lie too. I suspect our existing laws of trespass might quite easily be applied to plain hacking.
When Misic took his case to appeal, it was rejected.
The Appeal Court judges said laws should be viewed as "always speaking", that while technology might come and go, theft, fraud, wilful damage and trespass were still crimes - whether they were committed in the physical or the virtual world.
The anti-hacking-law lobby kicked off in the late 80s following concerns that current laws would not cope with the coming computer age.
That led to the Crimes Bill 1989, which created some computer-specific crimes. But the bill fell between the cracks of a general election and was never enacted.
It wasn't until 1999 that a new e-crime panic erupted. It followed the Appeal Court case of R v Wilkinson, which threw out a theft conviction involving a convoluted electronic transfer of funds.
Theft didn't apply because something physical wasn't stolen.
It was a small loophole for an unusual type of transfer that could be fixed with a better definition of "property".
But the scare was enough to let the lawmaking dogs out. Leading the pack was the Law Commission, which in May 1999 produced its Computer Misuse report.
The report bayed long and loud for wholesale e-law changes. But it now seems to have been barking up the wrong tree.
Contrary to the report's view, New Zealand judges have taken a very pragmatic view to dealing with e-crimes - interpreting existing laws with a wide scope.
In the Misic case, the Appeal Court ruled that the existing definition of "document" applied to electronic as well as paper mediums - opening the way for successful fraud and forgery prosecutions.
And Judge David Harvey in the sentencing of Andrew Garrett was moved to say: "It seems to me that the Law Commission writes in too generalised a fashion about the possible applicability of section 298 to computer damage".
He then pointed to a number of existing definitions and precedents which would seem to cover the sort of damage that hackers, viruses or denial-of-service attacks could wreak on computer systems.
The current yapping dog chasing hacking villains is the Minister of Information Technology, Paul Swain. But the minister, like so many before him, has mostly chased his own tail.
Nearly four years have passed since Swain's version of the Crimes Amendment Bill with supplementary order paper No 85 was first mooted.
It still isn't law.
Why? Because the bill has another more sinister agenda - to legalise hacking by police, the Security Intelligence Service (SIS) and the Government Communications Security Bureau (GCSB).
In making hacking illegal, the bill would also permit police and security services to hack. At present the police can't legally hack - interception warrants apply only to oral communications.
It's not quite the same with the SIS or GCSB, which are probably hacking at this very moment and we wouldn't even know.
The prospect for abuse of this new-found power to monitor computers from a remote location, to hack into computer databases and to monitor systems with keyword searching is a concern expressed by both Privacy Commissioner Bruce Slane and the Greens, whose opposition to the bill has delayed its passage.
State-sanctioned hacking will subject New Zealanders to a level of Government surveillance never experienced before.
Some will be quick to point out that in "the war against terror", such a bill is needed more than ever.
But that's a very different debate from the one which says the bill is needed to protect us from e-crime.
As the bill wends its way through Parliament in this term of Government, it will be United Future - "the common-sense party" - that holds the balance of power.
Common sense would say this bill oversteps its mark. At the very least - so that democracy is preserved - citizens have a right to know whom our Government is spying on and why.
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Law Commission Computer Misuse report
Crimes Amendment Bill with supplementary order paper No 85
Greens factsheet on Government plans for e-mail snooping and computer hacking
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