This is important because, until now, IT-related crimes have been prosecuted under a kind of workaround process which didn’t sit well with a number of lawyers, or courts, for that matter. Now we can say with some certainty that simply because the crime committed used a PC or a piece of software down-loaded off the internet doesn’t mean the crime is invalid — it is still a crime, assuming this case doesn’t get taken any further up the judicial food chain.
Borislav Misic was appealing his conviction on three counts of “fraudulently using a computer program” to make more than 88,000 minutes of international phone calls. That’s 61 days of talking on the phone. He must be a teenager, I was thinking, but the bill was put at somewhere between $NZ85,000 and $NZ166,000, which isn’t bad going really. His lawyers argued the crime hadn’t actually occurred because he hadn’t used a document as defined under the Crimes Act.
To commit fraud you must obtain and use a document for “pecuniary benefit” and with the intent to defraud. In this case, the document consisted of an application and the disk it was stored on.
Section 229A of the act, claimed Misic’s lawyers, did not include these new technologies as documents, therefore no fraud was committed. Fortunately the Court of Appeals, in the form of Justice Noel Anderson, said no and quoted Lord Hoffman in the Birmingham City Council v Oakley case.
“When a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood.” This idea of a law “always speaking” (says Hoffman) is important because it hasn’t been applied in other cases, most notably that of R v Wilkinson, which I’ve written about before.
The Law Commission wrote a report on the case called “Dishonestly Procuring Valuable Benefits” which be found on the commission’s website. You’ll have to dig quite deeply because it was written in December 1998 and has yet to be acted upon.
Here’s how Wilkinson got away with “obtaining by false pretences” and since it’s still not a crime to do this, I’m going to tell you how.
First, go to a bank and say, “I’ve got this lovely bridge/swamp/expensive sports car that I would like to use as collateral for a loan”. Show the bank the above-mentioned valuable item and then when they’ve given you the go ahead to borrow hundreds of thousands of dollars jump up and shout “Suckers! I don’t own any of it. All your base are belong to me!”
When the case goes to court you can stand up and say quite rightly, “But your honour, nothing has been stolen because they transferred the money to my account electronically. You can’t steal a column of figures; in fact, all that happened is one column changed and then another column changed.” The judge will let you go free, although I imagine you would probably have to pay the money back if you still have it.
“The decision in Wilkinson … points to a yawning gap in the criminal law which in the view of the court requires attention; in our view, the need for attention is urgent,” wrote the Appeals Court at the time. You see, electronic transactions are not real. They don’t physically exist and as such, aren’t covered by New Zealand law. This loophole, which everyone wants plugged, from the banks to the Police to the Law Commission to National and Labour to every law school in the country, will be sorted out when the government’s new electronic transaction law comes into being, probably towards the end of this year, assuming it passes through the House. Probably it will, but we’ll have to wait on that one.
So this new ruling from the Court of Appeals is important because it gives us some ammunition to use right away. Another case is about to go to trial, that of Andrew Garrett, who faces 12 fraud charges involving the copying of passwords from customers of ISP Xtra. This new ruling will certainly have an impact on that case.
Best of all it means we can survive for a little longer without the new Crimes Amendment Bill number six, with its attendant supplementary orders paper that allows security services and police to hack your phone calls or email if they get a warrant. There will be a lot of debate on that one, so it’s good to have even this small amount of protection in the meantime.