Data is not property says NZ Court of Appeal

POSTED BY Rick Shera
20 October 2014

posted in l@w.geek.nz | Employment | Property Law | Information Technology | Big Data | Computer Crime | Data Theft

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The appeal in Watchorn v R [2014] NZCA 493 continues the Court of Appeal's narrow interpretation of what is meant by the word "property" in the computer crimes sections of the Crimes Act. The case involves Mr Watchorn, an employee of TAG Oil, downloading what the Court of Apeal describes as "extensive and sensitive geoscience data from TAG’s computer system onto a portable hard drive". 

According to the penultimate appellate authority in New Zealand, that is not property.

In my respectful opinion, that interpretation does not recognise the huge financial and other value of data in this day and age.  I agree with Clive Elliott QC that, if this is our law, it needs to be changed.

Unfortunately also, in this particular case, it would appear that the Crown dropped the ball on appeal.  Faced with clear precedent authority that data is not property, it was still open to the prosecution to replace that claim with a claim on appeal that Mr Watchorn had obtained an illegal "benefit" under section 249 of the Crimes Act.  But, because the Crown failed to provide any evidence whatsoever of what that benefit might be, the Court of Appeal found itself unable to draw any conclusion (albeit one gets the impression the Court would have been prepared to).

As I said, I don't think a narrow interpretation of property in the context of these computer crime provisions is helpful so it needs to be changed.  There may however be a glimmer of hope for the prosecution of such crimes by focusing instead on access, control and use of data being a privilege, service, ... [or] benefit, under section 249.

If that doesn't work though, I'd have to conclude that this provision is unfit for purpose.



Image By DARPA (Defense Advanced Research Projects Agency) via Wikimedia Commons
 

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@Srdan That horse has already bolted. This from section 14 of the Copyright Act:

"Copyright is a *property right* that exists, in accordance with this Act, in original works of the following descriptions [emphasis added]:

(a) literary, dramatic, musical, or artistic works:

(b) sound recordings:

(c) films:

(d) communication works:

(e) typographical arrangements of published editions."

POSTED BY Rick Shera | Tue 21 October 2014Reply to Comment

Hi Rick

Some observers might think it is a strange world were the crime of hacking i.e. accessing a computer system in order to get information (see definition below) does not actually cover that specific activity and where the prosecution authorities will need to rely on the broad wash-up wording of obtaining a “benefit” to get a prosecution under S249 to stick.

It might also be seen as a little perplexing when one considers that something as ephemeral as “electricity” is covered but not the data or information on the computer being hacked.


http://www.merriam-webster.com/dictionary/hacker
hack·er
computers : a person who secretly gets access to a computer system in order to get information, cause damage, etc. : a person who hacks into a computer system
POSTED BY Clive Elliott | Tue 21 October 2014Reply to Comment

@Rick - I think you hit the nail on the head with "are intellectual property on the one hand and are not property for the purposes of criminal law on the other".

If the judge had interpreted it any differently, it would just open the door to copyright extremists to claim that all data/information was property and should benefit from the full gamut of property laws.

We shouldn't even begin this debate as to whether (Trademarks, Copyrights and Patents) are "property" based on a single case in which the Crown (in your own words) "dropped the ball".
POSTED BY Srdan Dukic | Mon 20 October 2014Reply to Comment

Hi James - I'll leave aside Dotcom because that's all to do with copyright which is a different regime (although strange how we can decide 0s and 1s are intellectual property on the one hand and are not property for the purposes of criminal law on the other).

It may well be that when the current crop of unauthorised access/hacking cases actually come to full trial, the prosecution will be faced with the same problem.

It may also be that the prosecution just uses s252 http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM330430.html which only requires unauthorised access (not property, benefit etc) but carries a lesser (2 year) penalty.
POSTED BY Rick Shera | Mon 20 October 2014Reply to Comment

Ummmm. Ok so how does this tie in with cases like dotcom and hacking cases like rawshark. I presume I'm missing something specific
POSTED BY james | Mon 20 October 2014Reply to Comment

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