Some muted thoughts on the legal issues involved in the search of Nicky Hager's house, with only limited added outrage. That may come later.

First of all, the Police are investigating a real crime here. Even certain bloggers whom we do not name have a right to keep others out of their computer systems, and this right is protected by criminal sanction.

As such, the Police do have the legal right to obtain a search warrant to try and get evidence that may help them identify who "Rawshark". It isn't entirely unreasonable to think that Mr Hager's data devices might have some information on them that helps with that identification.* I'm sure he's been very, very careful to try and avoid leaving anything that will assist in that way ... but maybe he's slipped up and failed to eradicate all such traces (if it is even possible to do that these days).

Of course, a "legal right" is not the same thing as a "legal duty" to act. The police have investigative independence, so nothing says that they must search Mr Hager's property (and take away his devices and materials) in this way. Furthermore, Mr Hager is not a suspect in any offending - he's an "innocent witness", in the sense that he's simply lawfully** in possession of information that might help with identifying the hacker.

So the Police could instead have decided to approach Mr Hager, see if he'd be willing to talk to them about his dealings with Rawshark, and from that conversation decide whether they think there's any realistic chance of them finding any material still in his possession that would help with their inquiries. Such a conversation hardly would have tipped Mr Hager off - he full well knew of the Police's possible interest in him - but it could have helped decide whether a full search with 5 officers and subsequent removal of a considerable amount of gear and files was needed.

However, that's not what they've done. Instead, they've taken a whole lot of data devices and files away with them. What now happens to all of that? 

Well, under the Search and Surveillance Act, certain sorts of "privilege" are recognised. One of these "privileges" is that conferred by the Evidence Act on journalists who wish to avoid disclosing the identity of a confidential source. This privilege exists for a reason - unless such sources can have some confidence that journalists will not be forced to disclose their identity, they will be less likely to provide the sort of important information that can aid in discussion of matters of public interest. 

If a search is being carried out that may conflict with this privilege, a special procedure exists. First of all, the person who claims the privilege must tell the Police (or other body conducting the search) that they think it exists. That doesn't in itself stop the search; rather, anything that is obtained from the search is parcelled up unexamined and given over to the High Court to look after. The High Court then examines the claim of privilege, and if it applies, gives the material back to the person who it was taken from ... otherwise, the Police (or other agency) gets to have a look at it.

Which is what is now going to happen with regards Mr Hager. Which in turn raises two questions:

(1) Is Mr Hager a "journalist" in terms of the privileges conferred by the Evidence Act (because only "journalists" can claim the right to keep their sources confidential). All I'll say on this is it would be a moral outrage if the courts were to regard the work he does as "not journalism", while that of a certain blogger whom we do not name has been deemed "journalism" (albeit not being worthy of any legal protection).

(2) Is this a situation where the privilege journalists generally enjoy under the Evidence Act should be set aside because of "public interest in the disclosure of evidence of the identity of the informant"? That is an express balancing test - how important is it to try to unmask Rawshark, in light of the potential damage that accessing Mr Hager's materials might do to his (and other media's) ability to do their jobs properly?

Needless to say, I'm sympathetic to Mr Hager's position here (while also thinking that there's almost zero chance that there's anything in the material the Police took away that will help with their case). So I hope he wins it. It's just a shame he has to fight it at all.

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I set to one side the question of whether the way the Police chose to conduct their search in this particular case was "reasonable" in terms of s.21 of the New Zealand Bill of Rights Act ... while noting it is a live issue.

** For a full and informative discussion of Mr Hager's potential legal liability in criminal and civil law, see this discussion at the University of Otago.

 

Comments (17)

by David Crosswell on October 08, 2014
David Crosswell

No question a la Hager's status.

Now, exactly how much energy is being devoted into pursuing potentialities in regard to the Whaleoil/Collins document exchange potential scenario? What level of investigation is happening there, exactly? There have got to be levers and pressure points in there somewhere. Nothing?

Oh, I see. Well, let's see how it all pans out. There could be all sorts of titbits on offer in the form of Supreme Court actions based on a denial of natural justice, victimisation, etc., all dependent on how they play.

by John-Michael Au on October 08, 2014
John-Michael Au

I'm rather perturbed by the fact that the Powers That Be (who will henceforth for the purposes of this post, be referred to as the P.T.B.) decided to perform the search/seizure seemingly without consideration of how it looks from the outside. As you've rather astutely pointed out, Professor Geddis (I'm sorry, that was shameless)- there was clearly a more diplomatic- and an infintely less brutish (appearance wise) approach available to the P.T.B.

Having said that- isn't it likely- given the circumstances- that the route taken by the P.T.B. was chosen primarily for its chilling/intimidating effect? Merely conjecture; we could assume that there was little rational thought behind the entire debacle. There's very little in the way of evidence to support the latter though- it wasn't a knee-jerk reaction to the publication of 'Dirty Politics'- having occured a significant amount of time after said event (perhaps Mr. Key finally decided to read the book?). It's highly unlikely that such an unprecedented (I may be wrong- depending on how you rate the snooping on Andrea Vance during the Kitteridge incident) use of force on an "innocent witness" would be excluded from some sort of vetting process.

TL;DR- P.T.B. comprised of morons/cowboys- or someone with an axe to grind/message to send- don't fuck with us, hombre.

by Anne on October 08, 2014
Anne

don't fuck with us, hombre

Today's Herald cartoon.

by Ted Blaikie on October 09, 2014
Ted Blaikie

Wont  the Police's interest be wider than just Rawshark?  After all they will have a new Minister to impress and under the no surprises policy will want to let the minister know what other projects Nicky is working on that might embarrass the government.

by Steve F on October 09, 2014
Steve F

If the case of Dotcom v the AG earlier this year its highly unlikely Hagar will escape this. According to the way I read the ruling a book is not news activity and can not be afforded special protections and neither can the author

https://zen.nzherald.co.nz/media/webcontent/document/pdf/201425/CIV2013-...

Indeed the source in my opinion has to be exposed in order for it (he or she) to be able to defend what will probably be a criminal case tested in the courts. There is most certainly a public interest,( not merely interesting to the public,) to reveal the source just as Hagar claims there was public interest to write up the illegally obtained material in his book for profit. What's good for the goose is also good for the gander.

I think the chilling effect argument is a red herring in his case because he clearly is not a Journalist writing for a news medium. Hagar sent all the right signals that he would act as a hostile witness so it makes perfect sense that the police executed the search warrant without forewarning. Indeed he probably had taken precautions not to leave incriminating evidence lying about the house but to forewarn would be to forearm and he could just as likely had sought out some expert advice to eradicate any residual digital DNA that could well turn up when the collected material is analysed.

If Hagar had done his job properly he would have tested and challenged the validity of his source information  and the parties involved, before writing the story in his book for profit. The way I see it, this is exactly what the police are attempting to do here. Collect the evidence and place it before the court to test it for validity or proof.

The hacker, if and when he or she stands in the dock, could well face a prison sentence of seven years and given the nature of his  role in publishing the emails, supporting and encouraging the hacker, it appears likely that Hagar is also liable for a criminal offence as an accessory after the fact, and the maximum penalty is half that of the principal offender, namely 3½ years imprisonment.

by Andrew Geddis on October 09, 2014
Andrew Geddis

@Steve,

First off, the Dotcom case (involving an attempt to get information from David Fisher) isn't quite on point. It involves the Privacy Act, which has a different definition of "news activity" and "news medium" to that used in the Evidence Act. So even if that judgment is correct in its interpretation of the Privacy Act (something that there's been quite a bit of debate about), it isn't quite on point.

Second, the "public interest" test involves more than "is it in the public interest to have Rawshark caught and punished?" There's a wider issue to be considered - what will be the effect on the (very important) business of journalism if people bringing information to journalists think that doing so may result in their being caught and prosecuted by the Police? Now, I get that you don't think Hager is a "journalist" (although a bunch of people in the journalism game, up to and including Seymour Hersh, would disagree) ... but if he is one in terms of the Evidence Act, then you have to consider this factor. For example - a bunch of journalists at the NZ Herald, Dom Post and TV3 have all had some sort of contact with Rawshark ... do you think their premises should also be searched and all their digital devices seized? If not, why not?

Third, I'm not sure that interviewing Hager would have been the "tip off" that you suggest. In fact, you seem to say yourself it wouldn't be: "Indeed he probably had taken precautions not to leave incriminating evidence lying about the house...". So before spending the resources of 5 officers working for 10 hours each looking for information that in all likelihood isn't there, an interview to see if Hager will help them decide whether to do so wouldn't have done any harm. For example - if Hager had told them "my contact with Rawshark was face-to-face, following which I was sent a thumb drive containing copies of files, which I opened on a laptop computer that I no longer possess", would there be any point in searching his home?

Finally - no, Rawshark wouldn't be liable for seven years in jail (see here). He'd be liable for up to two. And Hager is not an accessory after the fact - the Police have said he is not a suspect in any offending. He's not a criminal at all ... he's just being treated like one.

by Richard on October 09, 2014
Richard

Andrew,

Presumably Hager's data is encrypted, and the police presumably don't have the key (and Hager presumably won't give it to them).

Would this mean that the police could (legally) hand (copies of) Hager's drives etc over to the GCSB to attempt to decrypt them (under the new provisions for the GCSB to "help" other institutions)?

by Keith Ng on October 09, 2014
Keith Ng

Does the balancing test take into account the fact that the information is probably not there? It seems odd to balance investigative functions with media freedom when those investigative functions won't *actually* be served by a search, but OTOH, it also seems kinda perverse that to say that someone won't get searched because they are capable of defeating a search.

by Andrew Geddis on October 09, 2014
Andrew Geddis

@Keith,

I don't think so (but am getting out of my area of expertise a bit here). There's two stages here:

(1) Getting the warrant - where you have to satisfy a court that there's a reasonable basis for thinking that there's evidence to be found ... and the fact that the warrant was issued meant that the Police were able to do this;

(2) Evaluating the claim of privilege - where you have to balance the interests of justice (identifying a punishing bad guys) with protecting the confidentiality of specific non-bad guys (i.e. any sources in Nicky's notes/on his computers other than Rawshark) and generally upholding the notion that journalists can protect their sources.

by Richard on October 09, 2014
Richard

@ Andrew

I think that the police are OK with "a reasonable basis for thinking that there's evidence to be found".

The existence of the book is certainly pretty clear evidence that, at some time, Hager had in his possession data purportedly from Rawshark. It is reasonable to suppose that the associated metadata and/or other notes of Hager's could be used to identify Rawshark.

Certainly, Hager has claimed he no longer has such data, and it is also probable that Hager (and Rawshark) have otherwise endeavoured to handle the data in a clean way. However, we don't generally expect the police to be trusting of the truthfulness and competency of their opponents. So, it does seem "reasonable for the police to think that there is evidence to be found".

 

by Keith Ng on October 09, 2014
Keith Ng

Thanks Andrew and Richard!

by Steve F on October 09, 2014
Steve F

@ Andrew ( in reply to my first post)

Thank you for taking the time to respond at what would have been an early hour in the morning. It's appreciated.I hit the send buttom at 12.30am.I accept that the Dotcom case isn't quite the point but I believe it could be highly persuasive given the similarity in the relevant part of the two acts.

 

Perhaps the evidence that is being sought does not necessarily pertain to the material that has allegedly been stolen but could extend to finding evidence that Hagar did indeed meet his source face to face and really does know who he is. I imagine one scenario that could play out is Hagar being compelled at some stage, if it gets to that, to reveal his source. He could possibly just say that he was contacted by his source via a note in his letter box, a note he no longer has, given directions to a particular rubbish bin at a particular time to look for a thumb drive, that he no longer has, that he then accessed on a laptop that has since been stolen from his unlocked car but it wasn't worth the effort to report the theft. That would probably be the end of the matter of appearing as a witness, but buried amongst the load of stuff sitting in evidence bags in a courthouse somewhere could be just the fragment of evidence that would subvert such a testimony.

I believe he is on record as stating that he will under no circumstances reveal his source but it remains to be seen if he could break Kay Sketlons 2007 record of 79 days locked up in almost solitary confinement with access to a caged concrete exercise yard for contempt of court.
As for the TAG case you have alluded to I would be most interested to see if a court, in Hagar's case, would place "computer data" in the same category as an email. In other words is there a distinction between a private letter written on a computer by one individual to another and mailed electronically, that in another time not so long ago would have been written on a typewriter and placed in a mailbox with a stamp, and digital "data" that could comprise of all sorts of random bits and bytes to be used in a whole array of different programs? So perhaps private letters in any form will remain distinct from basic data in terms of property rights.If that is the case then we get back to the point that Hagar is an accessory after the fact (section 71(1) ), and back to the possibility of a maximum three year prison term. The sentence would be the least of Hagar’s worries. It will be the stigma of a conviction and the restrictions in freedom of movement that will be playing most on his mind.

The case in whatever form, if it is tried, undoubtably will be noted by the precedent it sets. I am an advocate for our shield laws to protect the freedom of the press but should it extend to using stolen private property to achive that gain, property that may contain morally objectional material, politically embarassing material but not criminal evidence, then I'm not so sure if thats a road to be travelling on.

by Flat Eric on October 09, 2014
Flat Eric

Is Hager always considered a 'journalist'? Or does each claim of being a 'journalist' in each particular circumstance get tested? What are the tests? For example, does a 'journalist' have certain duties or obligations to go along with the privilege (for example, at least asking for both sides of a story before publishing.)

by Graeme Edgeler on October 09, 2014
Graeme Edgeler

And Hager is not an accessory after the fact - the Police have said he is not a suspect in any offending.

More importantly, accessory after the fact is about covering up crimes. No-one has done more expose Rawshark's offending than Nicky :-)

by Andrew Geddis on October 09, 2014
Andrew Geddis

@Steve F,

Couple of points;

(1) I don't think Hager can be legally compelled to reveal Rawshark's identity in the way that you suggest. A witness does not have to say anything at all to the Police (unless an examination order is obtained, which is not available in this context). Think back, for instance, to the so-called "tight 12" in the Kahui twins murder case ... if you can't make someone say what they know about a murder, then getting Nicky Hager to say who gave him hacked computer files is a non-starter. And without Hager revealing (deliberately or accidentally) who Rawshark is, there isn't going to be a trial at which he'd be a witness (and thus potentially be in contempt of court ... which is what Kay Skelton was jailed for, after she refused to comply with a court order that she reveal where her son was being kept.)

(2) From what my more expert colleagues have told me, Hager does not face any risk of criminal liability here at all. Have a watch of the video clip I linked to in my second footnote (this one) for why that is.

by Andrew Geddis on October 09, 2014
Andrew Geddis

@Flat Eric,

For example, does a 'journalist' have certain duties or obligations to go along with the privilege (for example, at least asking for both sides of a story before publishing.)

Apparently not. A certain blogger whom we do not name was considered in the High Court to be a "journalist", despite (as we learned here today) not bothering to ask for both sides of the story before publishing his posts:

[Blomfeld] says he wasn't contacted before any post ran on the site but watched, initially incredulous then frustrated and finally strained, as the blog painted a picture of someone he says has no resemblance to himself.

by Ross on October 10, 2014
Ross

It's been reported that Slater laid his complaint with police just over a month prior to the general election. But police searched Hager's home after the election. That of course could be a coincidence but I'd like to think the police would have acted no dfferently had there been a change of government. 

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