Parliament set to fix 'hacker' legal irks

Some potential problems arising out of the Crimes Amendment No 6 Bill for IT professionals carrying out routine computer network administration are to be tidied up before it becomes law, says a Ministry of Justice official.

Some potential problems arising out of the Crimes Amendment No 6 Bill for IT professionals carrying out routine computer network administration are to be tidied up before it becomes law, says a Ministry of Justice official.

The problems, which were analysed by an Auckland University law lecturer in the March issue of the New Zealand Law Journal, are to be remedied with a supplementary order paper that arose from discussion of submissions in select committee, says the official, who did not wish to be named.

Lecturer Chris Nicoll suggested in the journal that sale and possession of legitimate security tools might be branded illegal if their potential use for hacking is pointed out in promotional material. The SOP proposes “to substitute the word ‘use’ instead of ‘purpose’ in 252(1)(a) and the word ‘promotes’ instead of ‘holds out’ in 252(1)(b)”, says the Justice official.

“This means, for example, that a person would have to promote a program — such as Satan — as being useful for committing crime to come within the offence,” rather than just comment that it derives from hacking tools and hence has the potential to be used for hacking.

However, Nicoll’s other chief point, that innocent testing of a remote computer or a network with standard tools like pings and trace-routes might fall foul of the part of the bill criminalising unauthorised intrusion into a computer system, will be for the courts to resolve, the official says.

“As with any new offence, it will ultimately be up to the courts to determine in particular cases whether a person was acting with or without authority [in sending data to a remote computer and/or provoking a response].

“To be convicted of the ‘hacking’ offence a person would need to know they were not authorised, or be ‘reckless’ as to whether they were not authorised. This means they know there is a real risk that they are not authorised and decide to take [that risk]. In cases where access has been gained by some automatic function of a computer program, it is highly unlikely that the courts would find the offence proven,” he says.

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