You do not have to be a conspiracy theorist to believe that the police's Brash "stolen emails" inquiry review is a good thing
I was once introduced to a police officer involved with the Don Brash stolen emails inquiry. We were both at the play, The Hollow Men.
His presence reminded me - hopefully unfairly - of the moustached detectives in Tintin chronicles, Thomson and Thompson, who show up in the most absurd locations in their hunt for criminal masterminds.
Unfortunately for the kiwi police, the plot of the play did not give away who wrote the emails.
There weren’t many obvious suspects in the audience, either. Unless you count Deborah Coddington, who laughed a lot (mainly at the fact that the actress playing Diane Foreman looked a lot like the real-life Donna Awatere Huata in her blonde period).
Rodney Hide was there too, and – come to think of it – he was fiddling suspiciously with his Blackberry. Most likely, though, he was reporting back to the Centre for Independent studies – the benign, low-key, liberal think-tank that the play absurdly portrayed in its opening moments as a pivotal part of a vast “far right” conspiracy.
The Hollow Men the book was a huge scoop that changed New Zealand politics. And it created a scandal that seems to keep on generating news stories, two years later.
Author Nicky Hager argues here on Pundit that, from the centre of the latest stories about the Brash emails, he is seeing the media being played disgracefully by spin doctors.
As someone with a lot more distance from the story, I disagree.
Hager asserts that “National and its allies” have been spinning the news media by pushing the angle that the emails were stolen.
Hager claims that Brash only reported the matter to the police because he cynically wanted to divert attention from himself. As a strategy, this appears to have failed rather spectacularly, what with Brash having been forced to resign the leadership and all.
It is also a short-sighted strategy that one would have expected Brash to abandon once he was out of office. (Many in National today would dearly love Brash to have shut up, that's for sure. In PR terms, what he has done has continuously reminded people of the muck that ended his leadership. Not the winning PR strategy that Hager sees it as).
The reason why Brash and those around him continue banging on about the emails is not to “divert” attention from themselves two years after the story broke, but because they genuinely believe that theft or computer hacking are the most likely explanations for how the emails got out.
Are they right? For us to take Hager’s explanation of the 'six person leak' at face value requires that six different people connected closely enough to Brash or the party to access the emails (not a huge group), all became disconcerted with Brash’s leadership, and all decided that – rather than resigning, joining another political party, or getting back at Brash in some traditional way – the most sensible option open to them was to collect and funnel emails to an ideological foe of Brash, one Nicky Hager – and for all six to do so in such a cunning way that they would not be detected after the fact.
It is true that Brash and at least some of his key email contacts liberally used the “CC” email function. Perhaps, though, we should just take Hager's 'six person leak' claim with a grain of salt. He's not going to make Brash - or the police's - job easier in detecting how he got the emails, and that's perfectly fine.
It's a bit rich, though, for Hager to criticise the media for reporting Brash's concern: “Can you imagine," Hager asks, "the media running two years of stories in which I claimed the National Party had broken into my house, where I could produce no evidence at all and where the police couldn't find any either? They would rightfully say that they couldn't possibly publish defamatory allegations like that unless I produced solid proof.”
I imagine that if the National Party published a book of Hager’s personal email correspondence, then the media would be interested in Hager’s opinion about how National may have obtained those. Calling the claims being made in the media "defamatory" seems over-the-top to me, but it's always something that Hager could test in court.
Hager is right to laugh at the suggestion of “a Labour-led government-police cover up of e-mail theft”. But the fact remains that Brash and others believe that the police inquiry was inadequate, and a thief or hacker is at large.
The answer to the “who took the emails” riddle will only ever interest a tiny group of people in Wellington politics. (Oddly enough, this was the group that was least surprised by the banality of what the emails contained: evidence of how tightly the meetings between politicians and the public are scripted, controlled and contrived.)
It is unlikely that the review now announced by the police will tell us who did it – or that we’ll ever know, barring a confession in the distant future.
But, if it manages to put some of the wilder conspiracy theories to rest and assures Brash and the public that the police explored all the reasonable avenues properly, then that can only be a good thing.
And I would love to find out what was discovered by New Zealand's thin blue line at the Hollow Men play.
Comments (18)
David,
I think you're being a bit misleading. Here is your description of Nicky's claims about how he came into possession of the emails:
"For us to take Hager’s explanation of the 'six person leak' at face value requires that six different people connected closely enough to Brash or the party to access the emails (not a huge group), all became disconcerted with Brash’s leadership, and all decided that – rather than resigning, joining another political party, or getting back at Brash in some traditional way – the most sensible option open to them was to collect and funnel emails to an ideological foe of Brash, one Nicky Hager – and for all six to do so in such a cunning way that they would not be detected after the fact."
Here is Nicky's footnote in the Pundit post that you link to:
"I said in the acknowledgements to The Hollow Men that I had received information from people "in and near the National Party" and that "six people in particular provided most of the information". This has been repeated carelessly in news stories as "six National Party insiders" and even "six people close to Don Brash". Please note, I didn't say either of those things. I have an obligation to protect my sources and so I was deliberately not saying how many were "in", how many were "near" or anything about what those terms meant. But it is obvious from reading the book that I received a large amount of information from people with very good access to the leader's office and I also had good sources on what was happening inside the National Party caucus. I had other information about some of Brash's allies outside the party that could not have come from either of those sources. This diversity of sources always made it surprising to me that anyone who had read the book would give any credence to the "hacking" story."
I leave it to readers to decide if your description of the "six person leak" scenario tallies with Nicky's.
"Calling the claims being made in the media "defamatory" seems over-the-top to me, but it's always something that Hager could test in court."
I think I know which claims you are refering to, David, but could you spell them out please; and while you are at it could you explain your position on Hagers response a little more carefully.
Hager does not say six party members leaked emails to him, and it is very unlikely that they did. It seems much more likely that one or more dissidents from within the party leaked some of the material, not necessarily to hager directly. There seems good indications that much of the material first ciculated with other parties, NZ1 and lLbour oindividuals seemed to know a lot. Then that, and further information, by no means all emails from Brash's office, gravitated toward hager, and probably included six people from the Nats.
I still reckon taking copies of docuiments is not stealing, as the owner is not deprived of their possession and use of the originals. Their might be some sort of privacy claim or perhaps copyright, but in the case of memos and minuted I do not think any claim holds water.
Did somebody unauthorised enter premises, or hack computers? The evidence does not seem to indicate any such thing happened.
I still reckon taking copies of docuiments is not stealing, as the owner is not deprived of their possession and use of the originals.
Making a copy of a document is not stealing. Taking a copy of a document could be stealing.
I burn a DVD of some Hollywood movie - not theft. I take a DVD of that movie from a DVD store - theft. It doesn't matter that the Hollywood studio still has the masters and the copyright; and it doesn't matter that the store has another 20 copies of the same DVD, it would still be theft.
An electronic copy of an email likely could not be stolen. A paper copy of an email could.
That's not to say that that's what happened here - but there are situations where taking a copy of something can be stealing - if that copy belongs to someone else, and that person is deprived of (their possession of) that copy.
Graeme.... But at the start of every DVD I rent I get told that 'Piracy is theft'..
Hate to rain on Graeme's parade, and really REALLY don't wish to become embroiled in nice legal semantic matters. (What's the difference between lawyers and accountants? The accountants know they are boring.) But here goes:
First, the crime in issue is theft. There are other property crimes relating to documents, but they only apply when the taking or use of the document is to obtain (paraphrasing) pecuniary or other valuable advantage.
Common law theft required property to be "taken and carried away". Under section 219 of the Crimes Act, that is no longer the case. There is an offence of taking, but there is also now an offence of dishonestly using or dealing with any property, with intent to deprive the owner either permanently of the property, or of any interest in it, possession of the property having been obtained in whatever manner including an innocent manner. "Dishonestly" simply means without a belief that a person entitled to do so consented to or authorised what was done.
DVD piracy is pretty clearly theft, IMHO. Emails in the circumstances of this case: debatable, and unlikely to be under section 219 (of what "interest" was Dr Brash deprived?). Certainly impossible to debate it sensibly in the abstract. What we need or want is confidence that the police worked it through rigorously in the light of any evidence obtained - or, confirmation that they were simply unable to obtain enough evidence to support that exercise.
However, also possibly relevant is the further offence in section 220 of the Crimes Act, of "theft by person in a special relationship". This applies to any person who has received or is in possession of any property on terms or in circumstances that the person knows require the person to deal with the property in accordance with the requirements of any other person. It is theft to intentionally deal with the property in a different way.
So to return to Nicky's original assertion, that "it is a debatable question whether taking a copy of a document to which you have lawful access and giving it to someone else is theft" is a pretty elegant summary of the position - about the best you can do, I'm afraid, without descending into a lot of gory detail.
Sorry, Graeme.
Emails in the circumstances of this case: debatable, and unlikely to be under section 219 (of what "interest" was Dr Brash deprived?).
Physical possession of the paper on which they were printed. As owner of that paper he is entitled to possession, that entitlement would have been thwarted.
there is also now an offence of dishonestly using or dealing with any property, with intent to deprive the owner either permanently of the property, or of any interest in it...
Yes. And if someone pirates a DVD, of what interest is the copyright owner deprived? The physical DVD? No. The copyright? No. The right to reproduce and sell copies? No. The right to license others to do the same? No. etc. etc.
DVD piracy does not (generally, I'm sure we could come up with something) involve a permanent deprivation of any property (or any property interest).
Colloquially, one might call it theft, or stealing, but a charge under section 219 would not fly for simple DVD piracy.
DVD piracy is covered by the Copyright Act 1994, s.131:
Criminal liability for making or dealing with infringing objects
(1) Every person commits an offence against this section who, other than pursuant to a copyright licence,—
(a) Makes for sale or hire; or
(b) Imports into New Zealand otherwise than for that person's private and domestic use; or
(c) Possesses in the course of a business with a view to committing any act infringing the copyright; or
(d) In the course of a business,—
(i) Offers or exposes for sale or hire; or
(ii) Exhibits in public; or
(iii) Distributes; or
(e) In the course of a business or otherwise, sells or lets for hire; or
(f) Distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner—
an object that is, and that the person knows is, an infringing copy of a copyright work.
.....
(5) Every person who commits an offence against this section is liable on conviction—
(a) In the case of an offence against subsection (1), to a fine not exceeding $10,000 for every infringing copy to which the offence relates, but not exceeding $150,000 in respect of the same transaction, or to imprisonment for a term not exceeding 5 years:
if someone pirates a DVD, of what interest is the copyright owner deprived? The physical DVD? No. The copyright? No. The right to reproduce and sell copies? No. The right to license others to do the same? No. etc. etc.
DVD piracy does not (generally, I'm sure we could come up with something) involve a permanent deprivation of any property (or any property interest).
The language is "any interest", not any property interest: whether or not that matters there is, surely, an interest in the money that would have been paid by any number of people to purchase legitimate copies of the DVD, had it not been pirated. Size of the interest: speculative, and dependent on the circumstances of each case, but beyond establishing that it is more than $0, not necessary to make out the elements of the offence. (It may not be considered in the public interest to prosecute small random breaches, but that's a different question.)
Physical possession of the paper on which they were printed. As owner of that paper he is entitled to possession, that entitlement would have been thwarted.
You seem to know more than I do about the facts of the case - more perhaps than anyone except Nicky, which in itself raises interesting questions. Have you spoken to the police?
Andrew - which establishes criminal liability, but not that it is theft. So either I'm wrong about section 219, or Tim mistakes what they say (which was my recollection too) - or wild liberties have been taken with the broader proposition that piracy is morally as bad as theft.
Can we stop now? Are we there yet?
Claire,
The warning "Pirating is an infringement of the intellectual property rights in this DVD, which incurs criminal liability under the Copyright Act 1994" doesn't have quite the same cachet as "pirating is theft". No?
You seem to know more than I do about the facts of the case ... which in itself raises interesting questions. Have you spoken to the police?
Just going from the Police' public media release:
"There are strong indications that the e-mails were in printed form at the time of the theft, but with the thefts perhaps happening at any time over the two- year period it is very likely that they were stolen during several incidents," Detective Inspector Quinn said.
Andrew, no, not quite ...
Graeme, yep. But in printed form on Don-Brash owned paper? Good luck proving that.
in printed form on Don-Brash owned paper? Good luck proving that.
As you point out, all that is needed is an interest in the property: "in printed form on paper Don Brash was entitled to possess" should be sufficient.
In any event, I'll leave that to the police to concern themselves over:
The investigation established that e-mails created between October 2003 and November 2005 had been stolen from the ownership of Dr Brash...
OK, Graeme, let's talk about the press release, if you want - although it takes us exactly back where this started, on the thread of David Lewis' post.
As you kept pointing out, the statement proceeds on the premise - repeated lots of times - that there was theft and emails were stolen. It said police had eliminated hacking; there were many other potential ways in which theft might have occurred, but police had been unable to establish how.
You don't need to call it conspiracy, or even spin, to find this a bit problematic. Surely, if they couldn't establish how, there must be real questions about whether. Or vice versa, if you're on the other side of the argument: if police knew enough to satisfy themselves of theft, it would seem important to find out the basis on which the decision was taken not to proceed further.
But anyway, let's accept the police premise, and say they were satisfied an offence must have been committed under either sections 219 or 220, but there were insufficient grounds to proceed with the enquiry. Whatever the merits of the (ie, your) section 219 argument about Don Brash's legal interest in particular bits of paper, that is not the only possible route to liability. Section 220, in this context, I think is much more interesting. It looks as if it might - for better or worse - bring leaking and theft closer to the same thing sometimes.
That in turn hints at reasons - again, well canvassed here on Pundit this week - why police might have preferred not to proceed in the circumstances of this case. There would not necessarily be anything improper in that. All of the reasons have a bearing on the two questions police need to keep asking themselves, about obtaining sufficient evidence, and whether prosecution would be in the public interest. Would it jeopardise other valuable conflicting interests? What are the prospects of its success, given the untested legal arguments? (Those are rhetorical questions, Graeme.)
To try to come back on point: I agree with David - the inquiry review is a good thing. The press release and redacted file demonstrably fell pretty far short of satisfying anybody that issues had been robustly worked through. There must be some way to achieve that without jeopardising protected interests.
Crikey, that'll teach me to ask flippant questions! Fascinating discussion guys...
The Neo - Nats just hate the idea that someone spilled the beans eh.
the upshot is that brash is a liar and that is that.
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