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Crimes Act as protection against govt-agency "fishing" expeditions via "public" services

 
 
Steve Bell
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      11-19-2003
I, Stephen John Bell, born at Wembley, England of 25th October 1947,
and now resident in Wellington New Zealand, hereby specifically deny
authorisation to officers of the Department of Internal Affairs and
Police, and any persons employed by them in a temporary or permanent
capacity, to access any computer systems belonging to me, unless in
possession of a specific written and duly authorised warrant
empowering them to do so.

In the context of the above, "authorisation" is to be understood in
the manner in which that term is used in Section 252 of the Crimes
Act, as amended by the Crimes Amendment Act 2003.

"Access" has the meaning ascribed to it by the aforesaid Act and
Amendment Act under Section 248, Interpretation: viz:

"access'", in relation to any computer system, means instruct,
communicate with, store data in, receive data from, or otherwise make
use of any of the resources of the computer system."

For the avoidance of ambiguity, the above denial of authorisation
extends to the acquisition from or the placing upon my computer
systems of any data file, image file, video file, text file, program
or any other information whatsoever, by way of a "public" service such
as a peer-to-peer file exchange service, Internet Relay Chat or
similar service to which my computer system may be from time to time
connected.

I am motivated to make this declaration by information I have
received from the Department of Internal Affairs indicating that they
have covertly "investigated" at least 111 (one hundred and eleven) New
Zealanders using peer-to-peer file exchange services, and have
achieved an impressive total of two (2) convictions for supply of
objectionable material, with another five (5) intended possibly to
proceed to court.

These, it strikes me, are the statistics of a "fishing expedition".
Bearing in mind the unreliability of file-names and file descriptions
in a file exchange service such as Kazaa as an accurate indicator of
their content, I see potential for a user to accidentally acquire
objectionable material, followed by uploading by an inspector of the
department, before the user has time to ascertain that the file is
objectionable and delete it. This would result in an unfair indictment
for supply of or trading in objectionable files.

Others may be more concerend at the inadvertent acquisition of
copyright material and the attentions of the Recording Industry
Association of NZ and similar bodies, and I urge them to amend, or add
to, their own denial of authorisation as appropriate.

Indeed, an act of positive incrimination is entirely possible, whereby
user B, knowing of user A's interests, disguises an objectionable file
with a name and/or description intended to attract A's interest. When
A downloads the file, B contacts the DIA and tells them he has "seen"
the file on A's system.

It occurs to me that one way in which innocent people who wish to
continue to use P2P file-exchange services can protect themselves
against such abuse is to issue a specific denial of authorisation
under the Crimes Act such as the foregoing.

Section 252 has a subsection (3), which says:
(3)To avoid doubt, subsection (1) does not apply if access to a
computer system is gained by a law enforcement agencyŚ

(a) under the execution of an interception warrantor search warrant;
or
(b) under the authority of any Act or rule of the common law.]

I have covered eventuality (a) in the terms of my draft declaration;
if they think they can satisfy a judge or magistrate that I have
intentionally acquired something suspicious, they are welcome to get a
warrant.

I do not know of any other Act that would empower them to conduct
fishing expeditions through my computer by way of a P2P service, but
I'm not sure about the "common law" provisions. Can anyone advise
whether a declaration of this type would stand up legally, or whether
there are "holes" in it?

If not, I urge others to use the weapon we have been given by the
Crimes Act to deter unwarranted covert and non-specific "fishing"
expeditions through our computer systems, with the danger of
inadvertent or deliberate incrimination that this poses.

I invite a reply from the DIA.

Steve B.
 
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dOTdASH
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      11-20-2003
so what exactly do you have on your PC that you don't want them to find ?
Give us a hint


 
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Steve B
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      11-20-2003
On Thu, 20 Nov 2003 18:57:34 +1300, "dOTdASH"
<(E-Mail Removed)> wrote:

>so what exactly do you have on your PC that you don't want them to find ?
>Give us a hint
>

First tell me what you have in your house that you don't want people
to find. I guess you might be disinclined to let police or DIA
officers in there if they don't have a search warrant. Why is that?

Whether you have "anything to hide" or not, you have the right to
refuse them admittance if they do not have a warrant. The Crimes
Amendment Act 2003, by my reading (at last) gives me the right to
refuse them entry to my computer system on the same terms. I am merely
formally invoking my rights (basically to see if they're prepared to
dispute my reading of the legislation and demand warrantless entry to
my PC at any time they can get in).

When I link to a P2P service, or, for that matter, read a newsgroup or
take delivery of my email I genuinely don't know what I might
accidentally and transitorily acquire. There have, I admit, been times
when probably illegal material has been on my PC. The point is, I did
not WISH it to be there; and small as the chance is, I don't want
people going on random fishing expeditions trying to find it, simply
because I sometimes open the gate of my electronic "premises" onto the
equivalent of the public street.

Steve B.
 
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tonyr
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      11-20-2003
On Thu, 20 Nov 2003 19:21:56 +1300, Steve B
<(E-Mail Removed)> wrote:

>On Thu, 20 Nov 2003 18:57:34 +1300, "dOTdASH"
><(E-Mail Removed)> wrote:
>
>>so what exactly do you have on your PC that you don't want them to find ?
>>Give us a hint


>Whether you have "anything to hide" or not, you have the right to
>refuse them admittance if they do not have a warrant. The Crimes
>Amendment Act 2003, by my reading (at last) gives me the right to
>refuse them entry to my computer system on the same terms. I am merely
>formally invoking my rights (basically to see if they're prepared to
>dispute my reading of the legislation and demand warrantless entry to
>my PC at any time they can get in).


Clearly wether a person has something to hide or not is an issue
because that as a postage stamp is what the matter is about.

BUT as you say THIS IS NOT THE ONLY ISSUE.

The legal sytem tries in some human way to approximate the BALANCE of
the NATURAL WORLD. In so doing it has to admit that persons may and
will attempt to do things out of thier own self interest. This must be
accepted primarily because it is in part a natural mechanism. We live
socially in a world greatly of our own construct - however we attept
to mimic the rationality of the Natural World. WE can do this in two
ways

1. by establishing new mechanisms that approximate the justice we
admire
2. by deleting or modifying previously established mechanisms that
have gone too far or that act against the Natural World we admire.

it is the second of these things that is the issue here because we do
not want to overstep the mark


\Scott Watson info homepage..
http://trudyandtom.tripod.com/homepage.htm

\Police malicious prosecutions.. ???
http://www.angelfire.com/theforce/nzpolice/framed.html

There's so much good among the worst of us
And bad among the best of us
That it ill becomes any one of us to talk about the rest of us
And when we're laid beneath the sod with a hundred years to back it
There's none will know which were the bones which wore the ragged jacket
 
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Bruce Simpson
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      11-20-2003
On Thu, 20 Nov 2003 20:30:56 -0500, Peter <(E-Mail Removed)>
wrote:

>well if you have nothing to hide why deter them let them in ..
>as for me , the police wont even find anything worth thier time ...LET
>EM IN


I think what he's saying is that although, to the best of his
knowledge, he has no objectionable material on his PC, the mere act of
connecting to a P2P network (or the Net for that matter) means that
there's always a possibility that someone else may have deposited such
material on his machine.

For the DIA (or anyone) to simply go trawling in the hope of finding
some happless Net surfer who's received an unwanted file by email or
through a P2P network is not acceptable.

Before they start scrutinising the contents of people's disks, they
should have sufficient evidence our grounds to suspect that they can
convince a judge to issue a warrant.

That sounds reasonable to me and explains why that stuipid piece of
rhetoric "only those with something to hide have anything to fear" is
completely untrue.


--
you can contact me via http://aardvark.co.nz/contact/
 
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KS
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      11-20-2003
> For the DIA (or anyone) to simply go trawling in the hope of finding
> some happless Net surfer who's received an unwanted file by email or
> through a P2P network is not acceptable.


As I understand it, they were not trolling.

A search was done for known objectionable material. Traceroutes were done on
those having the file available for download. From there it was pretty
simple stuff.

This was done with the simple point of looking for those who have in their
possession objectionable material, and make it available to others.


 
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dOTdASH
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Posts: n/a
 
      11-20-2003
Cards on the table time. Stephen's post was one of the more important I've
seen recently and nobody had posted a response so I took it upon myself to
rattle some cages. This is an important debate and please don't take my
initial response and having anything at all to do with my real opinion


 
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Warwick
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      11-20-2003
On Thu, 20 Nov 2003 21:03:43 +1300, "KS" <(E-Mail Removed)>
wrote:

>> For the DIA (or anyone) to simply go trawling in the hope of finding
>> some happless Net surfer who's received an unwanted file by email or
>> through a P2P network is not acceptable.

>
>As I understand it, they were not trolling.
>
>A search was done for known objectionable material. Traceroutes were done on
>those having the file available for download. From there it was pretty
>simple stuff.
>
>This was done with the simple point of looking for those who have in their
>possession objectionable material, and make it available to others.
>


Is there a distinction to be made here?
Making the file available for download is a little different to
dloading it by mistake - unless you are sharing your dload folder.
You dont have to.
Steve seems to be saying simply possessing the file (unopened and
mistitled is an offece) - your suggestion is that you are only at risk
if you share the file on the network.

cheers
Warwick



 
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Craig Shore
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      11-20-2003
On Thu, 20 Nov 2003 21:03:43 +1300, "KS" <(E-Mail Removed)>
wrote:

>> For the DIA (or anyone) to simply go trawling in the hope of finding
>> some happless Net surfer who's received an unwanted file by email or
>> through a P2P network is not acceptable.

>
>As I understand it, they were not trolling.
>
>A search was done for known objectionable material. Traceroutes were done on
>those having the file available for download. From there it was pretty
>simple stuff.
>
>This was done with the simple point of looking for those who have in their
>possession objectionable material, and make it available to others.


The problem with using P2P software is you could wind up doing it
without knowing you are. If you tell the P2P software to download a
file off someone, you do so based on the filename. The content of
that file you can only assume by it's filename, and sometimes that's a
wild guess, but don't actually know the content until you have
transferred the file to your computer and viewed it. Now if you were
to start the transfers before going to bed, or work, and they
contained objectional material, you could have been sharing it for
hours before you were even aware of it.
And i'm not talking about child porn here. Our Films, Videos, and
Publications Act disallows some things that they seem to get away with
overseas. NZ is probably correct in banning it, I feel the adult
industry is pushing the envelope a little too far in the USA judging
by some of the reviews i've read.

Like Steve i've download stuff that once i've actually seen it i've
realised it possibly wouldn't comply with the FVPA, and deleted it.
I suspect some would fail on 2b, 3a ii, 3a iii, 3a v, 3c


From the FVPA, at http://www.legislation.govt.nz


3.Meaning of ``objectionable''

(1)For the purposes of this Act, a publication is objectionable if it
describes, depicts, expresses, or otherwise deals with matters such as
sex, horror, crime, cruelty, or violence in such a manner that the
availability of the publication is likely to be injurious to the
public good.

(2)A publication shall be deemed to be objectionable for the purposes
of this Act if the publication promotes or supports, or tends to
promote or support,

(a)The exploitation of children, or young persons, or both, for
sexual purposes; or

(b)The use of violence or coercion to compel any person to
participate in, or submit to, sexual conduct; or

(c)Sexual conduct with or upon the body of a dead person; or

(d)The use of urine or excrement in association with degrading
or dehumanising conduct or sexual conduct; or

(e)Bestiality; or

(f)Acts of torture or the infliction of extreme violence or extreme

cruelty.

(3)In determining, for the purposes of this Act, whether or not any
publication (other than a publication to which subsection (2) of this
section applies) is objectionable or should be given a classification
other than objectionable, particular weight shall be given to the
extent and degree to which, and the manner in which, the publication

(a)Describes, depicts, or otherwise deals with

(i)Acts of torture, the infliction of serious physical harm, or
acts of significant cruelty:

(ii)Sexual violence or sexual coercion, or violence or coercion
in association with sexual conduct:

(iii)Other sexual or physical conduct of a degrading or
dehumanising or demeaning nature:

(iv)Sexual conduct with or by children, or young persons, or
both:

(v)Physical conduct in which sexual satisfaction is derived from
inflicting or suffering cruelty or pain:

(b)Exploits the nudity of children, or young persons, or both:

(c)Degrades or dehumanises or demeans any person:

(d)Promotes or encourages criminal acts or acts of terrorism:

(e)Represents (whether directly or by implication) that members of
any particular class of the public are inherently inferior to other

members of the public by reason of any characteristic of members of

that class, being a characteristic that is a prohibited ground of
discrimination specified in section 21(1) of the Human Rights Act
1993.

(4)In determining, for the purposes of this Act, whether or not any
publication (other than a publication to which subsection (2) of this
section applies) is objectionable or should be given a classification
other than objectionable, the following matters shall also be
considered:

(a)The dominant effect of the publication as a whole:

(b)The impact of the medium in which the publication is presented:

(c)The character of the publication, including any merit, value, or

importance that the publication has in relation to literary,
artistic, social, cultural, educational, scientific, or other
matters:

(d)The persons, classes of persons, or age groups of the persons to

whom the publication is intended or is likely to be made available:

(e)The purpose for which the publication is intended to be used:

(f)Any other relevant circumstances relating to the intended or
likely use of the publication.


 
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Craig Shore
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      11-20-2003
On Thu, 20 Nov 2003 22:25:45 +1300, Warwick <(E-Mail Removed)> wrote:

>On Thu, 20 Nov 2003 21:03:43 +1300, "KS" <(E-Mail Removed)>
>wrote:
>
>>> For the DIA (or anyone) to simply go trawling in the hope of finding
>>> some happless Net surfer who's received an unwanted file by email or
>>> through a P2P network is not acceptable.

>>
>>As I understand it, they were not trolling.
>>
>>A search was done for known objectionable material. Traceroutes were done on
>>those having the file available for download. From there it was pretty
>>simple stuff.
>>
>>This was done with the simple point of looking for those who have in their
>>possession objectionable material, and make it available to others.
>>

>
>Is there a distinction to be made here?
>Making the file available for download is a little different to
>dloading it by mistake - unless you are sharing your dload folder.
>You dont have to.
>Steve seems to be saying simply possessing the file (unopened and
>mistitled is an offece) - your suggestion is that you are only at risk
>if you share the file on the network.


Most file sharing networks make you share your download folder. I
think some even share the portion of the file you have downloaded
before you have finished downloading the complete file.


 
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