Digital Data and Theft – Collisions in The Digital Paradigm IV

 

Under the law in New Zealand a digital file cannot be stolen. This follows from the Court of Appeal decision in Dixon v R [2014] NZCA 329 and depends upon the way in which various definitions contained in the Crimes Act coupled with the nature of the charge were interpreted by the Court.

Mr. Dixon, the appellant, had been employed by a security firm in Queenstown. One of the clients of the firm was Base Ltd which operated the Altitude Bar in Queenstown. Base had installed a closed circuit TV system in the bar.

In September 2011 the English rugby team was touring New Zealand as part of the Rugby World Cup. The captain of the team was Mr Tindall. Mr Tindall had recently married the Queen’s granddaughter. On 11 September, Mr Tindall and several other team members visited Altitude Bar. During the evening there was an incident involving Mr Tindall and a female patron, which was recorded on Base’s CCTV.

Mr Dixon found out about the existence of the footage of Mr Tindall and asked one of Base’s receptionists to download it onto the computer she used at work. She agreed, being under the impression that Mr Dixon required it for legitimate work purposes. The receptionist located the footage and saved it onto her desktop computer in the reception area. Mr Dixon subsequently accessed that computer, located the relevant file and transferred it onto a USB stick belonging to him.

Mr Dixon attempted to sell the footage but when that proved unsuccessful he posted it on a video-sharing site, resulting in a storm of publicity both in New Zealand and in the United Kingdom. At his trial the judge Phillips found that Mr Dixon had done this out of spite and to ensure that no one else would have the opportunity to make any money from the footage.

A complaint was laid with the Police and Mr Dixon was charged under s. 249(1)(a) of the Crimes Act 1961.

That section provides as follows:

249 Accessing computer system for dishonest purpose

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration;

The indictment against Mr Dixon alleged that he had “accessed a computer system and thereby dishonestly and without claim of right obtained property.”

The issue before the Court was whether or not digital footage stored on a computer was “property” as defined in the Crimes Act.

“Property” is defined in section 2 of the Crimes Act in the following way:

property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest.

The Court considered the legislative history of the definition, noting that in the Bill that introduced the new computer crimes a separate definition of property specifically for those crimes had been provided. The definition was discarded by the Select Committee which rejected the suggestion that there should be different definitions of the word property for different offences.

The Court also noted that in the case of Davies v Police [2008] 1 NZLR 638 (HC) it was held  that internet usage (the consumption of megabytes in the transmission of electronic data) is “property” but in that case the Judge specifically distinguished internet usage from the information contained in the data. Thus, Dixon was the first case where the Court had to consider “property” as defined in the context of “electronically stored footage or images”.

In considering the decision of the trial Judge, the Court was of the view that he had been influenced by the very wide definition of property and the inclusion of intangible things, and that the footage in question seemed to have all the normal attributes of personal property. The Court also observed that Base Ltd who operated the CCTV system did not lose the file. What it lost was the right to exclusive possession and control of it. The Court considered the trial judge’s holding that the files were within the scope of the definition of property reflected “an intuitive response that in the modern computer age digital data must be property.” (para 20)

The Court concluded otherwise and held that digital files are not property within section 2, and therefore Mr Dixon did not obtain property and was charged under the wrong part of section 249(1)(a). Rather, held the Court, he should have been charged with accessing a computer and dishonestly and without claim of right obtaining a benefit.

The Court referred to the English decision of Oxford v Moss (1979) 68 Cr App R 183 which involved a University student who unlawfully acquired an examination paper, read its contents and returned it. The Court held that was not theft. The student had obtained the information on the paper – confidential it may have been, but it was not property, unlike the medium upon which it was written.

The Court of Appeal noted that Oxford v Moss was not a closely reasoned decision but it remained good law in England and had been followed by the Supreme Court of Canada in Stewart v R [1988] 1 SCR 963. Oxford v Moss had also been followed in New Zealand. In Money Managers Ltd v Foxbridge Trading Ltd (HC Hamilton CP 67/93 15 December 1993) Hammond J noted that traditionally the common law had refused to treat information as property, and in Taxation Review Authority 25 [1997] TRNZ 129 Judge Barber had to consider whether computer programs and software constituted goods for the purpose of the Goods and Services Tax Act 1985. He drew a distinction between the medium upon which information or data was stored – such as computer disks – and the information itself.

The Court considered the nature of confidential information and a line of cases that held that it was not property. The traditional approach had been to rely on the equitable cause of action for breach of confidence.

The Court went on to consider whether or not the digital footage might be distinguishable from confidential information. Once again it noted the distinction between the information or data and the medium, observing that a computer disk containing the information was property whilst the information contained upon it was not. It observed that a digital file arguably does have a physical existence in a way that information (in non-physical form) does not, citing the decision in R v Cox (2004) 21 CRNZ 1 CA at [49]. Cox was a case about intercepted SMS messages. The relevant observation was directed to the issue of whether or not an electronic file could be the subject of a search. The Court in Cox noted

“Nor do we see anything in the argument that the electronic data is not “a thing”. It has a physical existence even if ephemeral and that in any event the computer componentry on which it was stored was undoubtedly “a thing”.

Any doubt on this particular issue has been resolved by the Search and Surveillance Act 2012. However, as I will discuss below, although a digital file does have a physical existence, it is not in coherent form. One of the subtexts to the Court of Appeal’s observations of the “electronically stored footage” was that, when stored electronically it has a continuity similar to film footage. For reason that I will discuss later, this is not the case.

The Court then went on to discuss the nature of information in the electronic space. The Court stated at [31]:

It is problematic to treat computer data as being analogous to information recorded in physical form. A computer file is essentially just a stored sequence of bytes that is available to a computer program or operating system. Those bytes cannot meaningfully be distinguished from pure information. A Microsoft Word document, for example, may appear to us to be the same as a physical sheet of paper containing text, but in fact is simply a stored sequence of bytes used by the Microsoft Word software to present the image that appears on the monitor.

Having reviewed the background to the extension of the definition of “property’ following the decision in the case of R v Wilkinson [1999] 1 NZLR 403 (CA) where it was held that credit extended by a bank was not capable of being stolen because the definition of things capable of being stolen was limited to moveable, tangible things, and the fact that although the definition of document extended to electronic files the word “document” – thereby extending the definition of property to include electronic files – did not appear in the definition of “property”, along with the fact that the Law Commission in its hastily produced and somewhat flawed report Computer Misuse (NZLC R54 1999) referred to a possible redefinition of information as a property right, the Court took what it described as the orthodox approach. Parliament was taken to be aware of the large body of authority regarding the status of information and had it intended to change the legal position, it would have expressly said so by including a specific reference to computer-stored data.

This holding did not make section 249(1) of the Crimes Act meaningless. The section would still extend to cases where, for example, a defendant accesses a computer and uses, for example, credit card details to unlawfully obtain goods. In this case, the Court observed, Mr. Dixon had been charged under the wrong part of the section.

It is clear that prosecuting authorities will have to move with care in future. Under the Dixon holding, someone who unlawfully obtains an e-book for a Kindle or other reader could not be charged with theft, because an e-book is information in digital form. If the same book in hard copy form were taken without payment and with the requisite intention from a bookstore, a charge of theft could follow.

Comment

There can be no doubt that the decision of the Court of Appeal is correct technologically and in law and, although I do take a few minor points with the way in which the technological realities have been articulated.

The issue of where the property lies within medium\information dichotomy has been with us for a considerable period of time. I can own the book, but I do not “own” the content and do with it as I wish because it is the “property” of the author. The particular property right – the “copy right” gives the author the control over the use of the content of the book – the author may lose possession and control of the medium but he or she does not lose control of the message.

But the “copy right” has its own special statute and those legislatively created special property rights do not extend to the provisions of the Crimes Act – even although copyright owners frequently mouth the mantra that copyright infringement is “theft”. Clearly the decision in Dixon emphasising the principle that information is not property for the purposes of theft must put that myth to rest.

Information or Data in the Digital Space

To clearly understand the import of the decision in Dixon it is necessary to understand the nature of information or data in the digital space. The Court of Appeal refers to “information” because that is the basis of the “orthodox” conclusion that it reached. Information implies a certain continuity and coherence that derives from the way in which it was communicated in the pre-digital paradigm. Lawyers are so used to obtaining information that is associated primarily with paper, the medium takes second place to the message. Lawyers focus upon the “content layer” – an approach that must be reconsidered in the Digital Paradigm. For reasons which I shall develop, the word “data” can (and perhaps should) be substituted.

The properties of electronic and digital technologies and their product require a review of one’s approach to information. The nature of the print and paper based medium as a means of recording and storing information, and the digital equivalent are radically different. Apart from occasional incidents of forgery, with paper-based documents, what you saw was what you got. There was no underlying information embedded or hidden in the document, as there is with meta-data in the digital environment. The issue of the integrity of the information contained on the static medium was reasonably clear.

Electronic data is quite different to its predigital counterpart. Some of those differences may be helpful. Electronic information may be easily copied and searched but it must be remembered that electronic documents do pose some challenges.

Electronic data is dynamic and volatile. It is often difficult to ensure it has been captured and retained in such a way as to ensure its integrity. Unintentional modifications may be made simply by opening and reading data. Although the information that appears on the screen may not have been altered, some of the vital meta-data which traces the history of the file (and which can often be incredibly helpful in determining its provenance and which may be of assistance in determining the chronology of events and when parties knew what they knew) may have been changed.

To understand the difficulty that the electronic paradigm poses for our conception of data it is necessary to consider the technological implications of storing information in the digital space. It is factually and paradigmatically far removed from information recorded on a medium such as paper.

If we consider  data as information written upon a piece of paper it is quite easy for a reader to obtain access to that information long after it was created. The only thing necessary is good eye sight and an understanding of the language in which the document is written. It is information in that it is comprehensible and the content informs. Electronic data in and of itself does not do that. It incoherent and incomprehensible, scattered across the sectors of the medium on which it is contained. In that state it is not information in that it does not inform.

Data in electronic format is dependent upon hardware and software. The data contained upon a medium such as a hard drive requires an interpreter to render it into human readable format. The interpreter is a combination of hardware and software. Unlike the paper document, the reader cannot create or manipulate electronic data into readable form without the proper hardware in the form of computers.[1]

There is a danger in thinking of electronic data as an object ‘somewhere there’ on a computer in the same way as a hard copy book is in a library.  Because of the way in which electronic storage media are constructed it is almost impossible for a complete file of electronic information be stored in consecutive sectors of a medium. An electronic file is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, are assembled, processed and rendered legible for a human user. In this respect the “information” or “file” as a single entity is in fact nowhere. It does not exist independently from the process that recreates it every time a user opens it on a screen.[2]

Computers are useless unless the associated software is loaded onto the hardware. Both hardware and software produce additional evidence that includes, but is not limited to, information such as metadata and computer logs that may be relevant to any given file or document in electronic format.

This involvement of technology and machinery makes electronic information paradigmatically different from traditional information where the message and the medium are one. It is this mediation of a set of technologies that enables data in electronic format – at its simplest, positive and negative electromagnetic impulses recorded upon a medium – to be rendered into human readable form. This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object. Much will depend, for example, upon the word processing program or internet browser used.

The necessity for this form of mediation for information acquisition and communication explains the apparent fascination that people have with devices such as smart phones and tablets. These devices are necessary to “decode” information and allow for its comprehension and communication.

Thus, the subtext to the description of the electronically stored footage which seems to suggest a coherence of data similar to that contained on a strip of film cannot be sustained. The “electronically stored footage” is meaningless as data without a form of technological mediation to assemble and present the data in coherent form.  The Court made reference to the problem of trying to draw an analogy between computer data and non-digital information or data and referred to the example of the Word document. This is part of an example of the nature of “information as process” that I have described above. Nevertheless there is an inference of coherence of information in a computer file that is not present in the electronic medium – references to “sequence of bytes” are probably correct once the assembly of data prior to presentation on a screen has taken place –  but the reality is that throughout the process of information display on a screen there is constant interactivity between the disk or medium interpreter, the code of the word processing program and the interpreter that is necessary to display the image on the screen.

In the final analysis there are two approaches to the issue of whether or not digital data is property for the purposes of theft. The first is the orthodox legal position taken by the Court of Appeal. The second is the technological reality of data in the digital space. Even although the new definition of property extends to intangibles such as electricity it cannot apply to data in the digital space because of the incoherence of the data. Even although a file may be copied from one medium to another, it remains in an incoherent state. Even although it may be inextricably associated with a medium of some sort or another, it maintains that incoherent state until it is subjected to the mediation of hardware and software that I have described above. The Court of Appeal’s “information” based approach becomes even sharper when one substitutes the word “data” for “information”. Although there is a distinction between the medium and the data, the data requires a storage medium of some sort. And it is this that is capable of being stolen

Although Marshall McLuhan intended an entirely different interpretation of the phrase, ‘the medium is the message,’[3] it is a truth of information in digital format.

 

[1] Burkhard Schafer and Stephen Mason, chapter 2 ‘The Characteristics of Electronic Evidence in Digital Format’ in Stephen Mason (gen ed) Electronic Evidence (3rd edn, LexisNexis Butterworths, London 2012) 2.05.

[2] Burkhard Schafer and Stephen Mason, chapter 2 ‘The Characteristics of Electronic Evidence in Digital Format’ 2.06.

[3] Marshall McLuhan, Understanding Media : The Extensions of Man (Massachusetts Institute of Technology  Cambridge 1994) Ch 1

 

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