In the wake of the publication of Dirty Politics back in 2014, the New Zealand Police undertook multiple unlawful breaches of Nicky Hager's privacy. They've now apologised for that - but the important thing is to make sure it does not ever happen again.

Readers able to remember events of more than a fortnight ago (or, events prior to Fortnite, for that matter) will recall the 2014 election campaign and those never-quite-peak-cray days of Dirty Politics. For anyone needing a refresher course, here’s a handy little explainer written by a fresh faced, up-and-coming tyro named Toby Manhire.

Nicky Hager’s book was based on material obtained from the mysteriously named “Rawshark”, who in turn almost certainly obtained it by way of a criminal computer hack. Much was made of this fact at the time, with Mr Hager accused of using “stolen” information. If interested, you can read Mr Hager’s response to that charge here (at question #5).

Irrespective of the ethics of using the material, however, it was clear that Mr Hager had committed no crime. While we still do not know who Rawshark is, no-one seriously believed it was Mr Hager himself. Equally, there was no evidence that Mr Hager colluded with Rawshark in carrying out the original, unlawful hack.

Nevertheless, if you wanted to uncover Rawshark’s identity, Mr Hager was the obvious place to start. And the New Zealand Police decided they very much wanted to find out who Rawshark was – they very, very much wanted to do so. Quite why they felt such a desperate need to determine the perpetrator of thisparticular crime out of all those committed daily in New Zealand remains something of a mystery, but felt it they did.

 For the police embarked on a really quite remarkably terrible investigation to try and trace Rawshark through Mr Hager, which today has led them to issue a comprehensive and I am sure highly embarrassing apology (along with money damages and payment of legal costs). Here’s what they now admit they did wrong.

First of all, they went to Mr Hager’s bank – which was Westpac, if you really want to know – and asked them to please pass over 10-months-worth of Mr Hager’s financial records. Which the bank then did quite happily, despite the police having no legal right to the information. You can read what the Privacy Commissioner thought of that behaviour here (spoiler alert: he was less than impressed).

Then, without even trying to talk to Mr Hager, the police decided he was an “uncooperative witness” in their investigation. In what appears to be an action without precedent in New Zealand, they instead went to the District Court and asked for a warrant to search Mr Hager’s house and remove all papers and electronic devices that might provide them with information that could identify Rawshark.

The problem being that they failed to tell the Court their target was a journalist whose material may be subject to journalistic privilege, as it had been obtained under a promise that its source would remain confidential. The High Court subsequently found that this failure breached the police’s “duty of candour” to the courts, thus rendering the warrant unlawful. In addition, the police now admit that their warrant was overly broad in the material it sought and should have contained conditions to address the possible privilege issues.

So, the search of Mr Hager’s house and removal of his property was, the police admit, unlawful. What is more, by a remarkable coincidence the police search took place at a time when Mr Hager was in another city, meaning that it was an hour before Mr Hager was able to assert journalistic privilege over that property. Despite being alerted to that claim of privilege, the police nevertheless used photos they had taken of an email exchange and website login information to try and track Rawshark down.

Let’s just pause and recap at this point. The police admit that they misled a court by omission into giving them apparent legal authority to raid the house of not a suspect in a crime, but a witness to it. That witness, they knew, was a working journalist whose efficacy depends upon being able to assure his sources (be they law abiding saints or malefactor demons or somewhere in between) that their identity will remain confidential. And despite being alerted that there may be a legal bar on presenting in court the information they had seized, the police admit they went ahead and used some of it anyway to try and unmask their suspect. 

Were this the extent of the police’s actions, they would be bad enough. But wait, for there is more. Even after conducting the raid and being told in writing by Mr Hager’s lawyers that he asserted journalistic privilege over all information that may reveal his confidential sources (such as Rawshark), the police continued to approach third parties like Air New Zealand, Jetstar, Customs and Paypal for information about Mr Hager’s activities. Some of it was sought on an informal “please tell us” basis, while some was obtained through formal production orders (which were in turn obtained from the courts without disclosing that they related to a journalist with confidential sources). 

And in what is perhaps the most damning indictment of the police’s actions, they now admit that they told some of these third parties they wanted information about Mr Mr Hager because he was suspected of fraud and other criminal activities. This was what is known in legal circles as a complete and utter lie.

Hence the complete and comprehensive nature of the apology to Mr Hager from the police. As I’ve had cause to say about it in a quote that Mr Hager's legal team included in their press release about the settlement:

The series of failures admitted by the police indicates a deeply concerning failure to both understand the legal constraints on their powers and the fundamental importance of individual rights. This comprehensive apology hopefully indicates that the message has been driven home and such behaviour will not happen in the future.

Because I accept that a political culture where individuals routinely turn to criminal activity to try and unmask their opponent’s claimed wrongdoings would be a bad one. James O’Keefe would not be a welcome fixture in our democratic process. And even criminal hypocrites like the target of Rawshark’s original hack have a general right to privacy that the law ought to protect.

So, seeking to identify and prosecute Rawshark was not in itself an unreasonable response by the police. However, turning the journalist who used the information gained through Rawshark’s actions into a virtual criminal co-conspirator from whom information will be obtained by any means necessary is completely unreasonable and dangerous to our democracy. It should never have happened, and should never happen again.

Comments (18)

by Anne on June 12, 2018
Anne

The nature of the the unlawful breeches of police behaviour in relation to Nicky Hager are not just confined to the police.They have occurred elsewhere inside the P.S. to other innocent individuals going back quite a few decades. I know, because I was also once a target.

by Gilbert on June 12, 2018
Gilbert

Given the deplorable litany of injustices perpetrated by the Police in this sad saga, why are the officers responsible not being pursued and disciplined for their illicit actions? And why hasn't the role of the Minister of Police at the time been scrutinised.

 

by Graeme Edgeler on June 13, 2018
Graeme Edgeler

Irrespective of the ethics of using the material, however, it was clear that Mr Hager had committed no crime. While we still do not know who Rawshark is, no-one seriously believed it was Mr Hager himself. Equally, there was no evidence that Mr Hager colluded with Rawshark in carrying out the original, unlawful hack.

It is now less clear that Hager committed no crime. The Police conclusion that Hager himself had not committed a crime was based on a series of erroneous Court of Appeal decision that were subsequently overturned by the Supreme Court in Dixon.

Based on Dixon, there are reasonable grounds to suspect (ie the standard required to be able to get a search warrant) that Hager committed the crime of receiving.

by gregfullmoon on June 13, 2018
gregfullmoon

I do not accept that the police settlement is confidential, as the money they pay Hager is derived from the public purse. What interest is protected in the confidentiality?

I think the bank (and banks generally where the practice is universal) need to be censured and charged with breach of client privacy for disclosing information without proper authority. That practice needs sorting as a priority.

I similar to Gilbert feel the police officer(s) responsible for the Hager saga ought be publicly investigated and disciplined where found in breach of the law and police ethics.

It would be great to have confidence that everyone concerned, government, police and journalists act with integrity from now on... not much can be done to undo that already done apart from setting good examples and demonstrating that impunity is not how NZ does business.

The further we progress into the world of distopian hacks on electoral integrity (Dirty Politics, Cambridge Analytica, Crosby Textor etc.) the more we allow the forces of despotism to rule the realm.

by Dennis Frank on June 13, 2018
Dennis Frank

Ok, so Hager received stolen goods (emails).  The law may indeed deem him a criminal on that basis, in which case we can understand why Judith Collins responded to a reporter on the tv news last night that she expected an apology from him.  So the ethics of Hager's use of hacked emails hinges on the public interest in their publication.  We can set aside (perhaps) the profit motive, inasmuch as he earns a living from his books and doing so is his right.  So the public interest lies in the extent to which his reporting exposes attempts to subvert our democratic process - if we can agree that is the primary motive for publication.  We do all benefit from the exposure of attempts to subvert democracy, much as we do from the exposure of attempts to pervert the course of justice.

I suspect, therefore, that any consideration of prosecuting the author would have to take into account our common interest in the situation.  It would not surprise me at all if a court were to decide that the author was acting in the public interest - his rationale for publishing his book becoming evident and obvious in the reading of it.

I've noticed a trend since the '70s:  police culture has been moving at glacial speed away from closet-fascism.  It's as if some in the police hierarchy want to hold the line, while others seek to make progress.  Clearly the actions against Hager were undertaken by some in the former group, whereas the apology comes from the latter.  Public servants will continue to avoid providing public service as long as the governments of the left and right allow this misbehaviour.  A competent government would institute employment contracts and departmental charters to eliminate inappropriate decision-making.  Watch this space to see if the current minister (Nash) is capable of becoming part of the solution...

by Tim Watkin on June 13, 2018
Tim Watkin

Graeme, I'm interested in your comment. The statment yesterday specifically says "Mr Hager was not a suspect of any offending".

by Graeme Edgeler on June 13, 2018
Graeme Edgeler

Graeme, I'm interested in your comment. The statment yesterday specifically says "Mr Hager was not a suspect of any offending".

And he wasn't. When people were arguing online about about the possibility of eg charges of receiving stolen goods, I was able to point to Court of Appeal decisions in Watchorn and Dixon, which showed why that was impossible.

I'd have reached (and did reach) the same conclusion as Police did at the time.

The law has changed since then, and it changed retrospectively. It now turns out that Watchorn and Dixon were wrongly decided by the Court of Appeal, and it is possible for computer files to be property (thus it is possible to receive unlawfully obtained computer files). The reason why Police reached their view at the time that Nicky could not be charged with anything has gone. Their reliance on the Court of Appeal decisions was a mistake, and the conclusion that Nicky could not possibly be gulity of a crime was based on a faulty premise.

by Andrew Geddis on June 13, 2018
Andrew Geddis

Graeme is technically correct, but risks entirely missing the important point. I myself have posted about the Supreme Court's decision in Dixon - indeed, I think I may have been one of the first to note the potential implications of its reasoning for the offence of receiving. But that subsequent change in law is entirely and totally irrelevant to the Police's actions in obtaining a warrant for Mr Hager's home, or their understood legal right to do so. It wasn't that the Police shouldn't have been permitted a warrant to search Mr Hager's home because there was no suspected offence to investigate - it was that the Police failed to tell the Court the fact their search was of a journalist protecting confidential sources. Whether the search had been for evidence of a crime committed by Mr Hager, or a crime committed by another, that duty exists. So the subsequent change in approach by the Supreme Court would have done nothing to make the Police's actions lawful.

Further, I'd note that had Dixon been decided prior to the writing of Dirty Politics, Mr Hager could have altered how he dealt with the digital files given to him (by, for instance, asking Rawshark to print out the material rather than provide it in electronic form) so as to avoid any risk of receiving "stolen property". So to retrospectively apply the Dixon ruling and say that if it had been in place at the time, the Police could have obtained a warrant to search Mr Hager's home on suspicion of "receiving" is to fail to note that people can change their behaviour based on what the understood law is at the time. 

by Graeme Edgeler on June 16, 2018
Graeme Edgeler

I made absolutely no claim that Dixon, or any other case affected Police action in obtaining the Hager search warrant, or conducting the search of his home. Nor do I make any claim that the subsequent Supreme Court decision made the Police action lawful. I just don't think people would say "it was clear that Mr Hager had committed no crime" without noting that the situation is now different, because people might come away with the impression from such a statement that it is still clear, and it is not.

Further, I'd note that had Dixon been decided prior to the writing of Dirty Politics, Mr Hager could have altered how he dealt with the digital files given to him...

Of course, the same might be true of Mr Dixon. If Mr Dixon can be held liable for his actions based on a subsequent Supreme Court decision, why can't others?

to retrospectively apply the Dixon ruling and say that if it had been in place at the time, the Police could have obtained a warrant to search Mr Hager's home on suspicion of "receiving" is to fail to note that people can change their behaviour based on what the understood law is at the time. 

And again, of course, I am not saying that Police could have done this at the time. I am not discussing the Police. I am discussing Nicky Hager. I am saying that people who know what the law now is, should not now imply that it's *clear* Hager didn't break it, when that is now not clear at all, and that people who want to make a claim about what was clear at one point in time, should note when that has subsequently changed.

I will of course note that I am not saying it is clear that Nicky broke the law. I don't know, for example, that he didn't receive a printout instead of electronic files, just to be safe.

by Dennis Frank on June 16, 2018
Dennis Frank

Good point.  Could a court even identify his emails as stolen if the hacker copied them?  Surely the originals were stolen, and therefore the copies were not!  Copies are manufactured.  And if an email is copied in public domain, it becomes public info as an automatic result of that technical process.  In which case only the hacker could be prosecuted, not the journalist.

by Andrew Geddis on June 17, 2018
Andrew Geddis

@Graeme,

I'm simply pointing out to readers who may otherwise be confused and think your comments somehow validate the Police's actions that they don't and in fact represent something of a diversion from the point of the post.

You then say:

I am saying that people who know what the law now is, should not now imply that it's *clear* Hager didn't break it, when that is now not clear at all, and that people who want to make a claim about what was clear at one point in time, should note when that has subsequently changed.

If you are implying that I said this, you are incorrect. I said in my post:

Irrespective of the ethics of using the material, however, it was clear that Mr Hager had committed no crime.

Both in terms of the context of that sentence, and on basic rules of language, I obviously am speaking in the past tense. At the time of the events my post discusses, it was clear (based on court rulings that you yourself cite) that Mr Hager had committed no crime. The fact that the Supreme Court (in a very dodgy decision) subsequently may have muddied that conclusion does not change the validity of that statement. And I tend not to include things in my posts that are irrelevant to the point I am discussing.

by Tim Watkin on June 17, 2018
Tim Watkin

Can I try to clarify something as a layperson? Is it correct for me to say that at the time of receiving the files Rawshark had hacked, Hager was not committing a crime as the law was understood then. So he can defend his decision at that time to use those hacked files as legal (as well as in the public interest, which he clearly believes they were and could be regardless of the law).

But since then the law - while it hasn't changed - is now understood differently and if he did the same thing again, he could face charges. 

Is that all accurate or not?

by Graeme Edgeler on June 17, 2018
Graeme Edgeler

I for one do now know that Hager received any files at all.

by Tim Watkin on June 17, 2018
Tim Watkin

Do you mean 'not' know? And that's not really answering the question. Which is about what the change in legal understanding you point to means. At the time, you seem to be saying, he was in the right, but anyone doing the same thing now may face charges? 

by Andrew Geddis on June 18, 2018
Andrew Geddis

Tim,

Yes. With the proviso that it wasn't Hager's use of any hacked files that would be the issue, it would be his possession of them (as a potential "receiving" of "stolen" property). I discusses the matter here.

by Graeme Edgeler on June 18, 2018
Graeme Edgeler

I did mean "not" :-)

I am saying that I do not know that Nikcy, for example, did not receive paper printouts of the emails, or PDFs of scans of such paper printouts, or files but in a wholly different format that Cameron never possessed, or any of the other alternatives that might mean that the form of the information that Nicky received from Raw Shark would not amount to receiving of dishonestly obtained property, even under the standard implied by the Supreme Court in Dixon.

At the time, I was saying that I could not see how Nicky could have broken the law. I was mistaken to say this, because the Supreme Court later ruled in Dixon that my understanding of the law was in error. Andrew's post covers it well. I think the Supreme Court's decision was stupid, but they get the final say, and it is now very easy to construct an scenario in which Nicky broke the law.

by Dennis Frank on June 18, 2018
Dennis Frank

Well, if the law deems copies and originals to be identical then the law's an ass.  But wait, we already knew that (the aphorism is 3.5 centuries old according to google).

So, if someone copies the Mona Lisa & someone steals the copy, the law is meant to prosecute the thief for stealing the original??  Yeah, right..

I'd like to see journalists do the sensible thing, which is to ensure that sources send them copies of hacked emails instead of the originals.  Forensic computer scientists will then be able to testify that the files received by the journalist cannot possibly have been hacked due to the different source computer & date imprinted within them.  Will the Supreme Court then proceed to make fools of themselves by proclaiming that the copies & originals are identical despite that expert evidence?  I bet they wouldn't be that stupid.

by Megan Pledger on June 22, 2018
Megan Pledger

Rawshark would certainly know that printing documents is highly insecure.  Most printers add "microdots" to printed pages to identify the printer and date/time of printing. 

https://en.wikipedia.org/wiki/Printer_steganography

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