“Stolen emails”

datePosted on 07:16, May 22nd, 2009 by Anita

It is nearly impossible to steal emails, because to be stealing you have to take something so that the owner no longer has it (not only blindingly obvious but also in the Crimes Act).

So if we go with the common rumour that Brash’s emails were printed out, and imagine someone with legitimate access to them made copies then it’s not theft, in fact I can’t see how it would even be criminal. Another scenario, someone forwards the emails on to someone else, again not theft, and I can’t see how it’s criminal.

The Nats know this, they know it won’t have been theft and is really unlikely to have even been criminal but they keep saying “stolen emails” over and over. They say it because it’s spin – the exact same kind of spin documented in The Hollow Men – they say it because it smears Nicky Hager and it distracts from what the emails show about their behaviour. That makes sense, that’s politics: dirtier than I’d like it to be but no more dirty that we expect from the Nats.

So the question becomes, why do the media keep repeating that National spin?

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36 Responses to ““Stolen emails””

  1. Lew on May 22nd, 2009 at 08:49

    Anita,

    So the question becomes, why do the media keep repeating that National spin?

    Good question, and the answer is that the choice of terminology is political, and Brash and his minions have consistently run the `theft’ line as if it’s a fact, relying on the common-usage definition (taking something which doesn’t belong to you) rather than the legal definition. Essentially `theft’ has become the orthodox explanation for the emails’ coming into Hager’s possession – the question `How else could he have gotten them?’ has been asked but not adequately answered.

    The problem is to do with how the media collect information – they largely run with what they’re given. If a lot of yappy dog sources such as Hooton are calling it theft, official sources such as the police are equivocal or waffly, and nobody is saying anything much else, then calling it anything other than theft becomes a political statement which would open the media up to accusations of anti-Brash bias. Another reason is that Brash, Hooton, et al. have better access to the media and a much more sexy story than Hager – theirs alleges police corruption and incompetence, and is being conducted by genuine political-media elites; a household name and a PR practitioner. Hager is just a relatively media-shy journalist with a reputation (founded or otherwise) as a conspiracy theorist.

    L

  2. Anita on May 22nd, 2009 at 11:09

    Lew,

    I’m not convinced about your argument about common-usage. If a friend came to dinner and, while I was out of the room, photographed the painting in my living room then put the photo on her blog no-one would call her actions “theft” or say that either the photo or the painting were stolen.

  3. StephenR on May 22nd, 2009 at 11:27

    They were NOT just emails, as Hager is at pains to remind us:

    The papers note, for instance, that my book contained documents (including a leadership acceptance speech by Brash, a fax and three sets of National Party board minutes) that had never been on the computer systems – evidence that should shut up any reasonable person from repeating the computer hacking stories.

    http://pundit.co.nz/content/good-pr-relies-on-bad-journalism-the-stolen-e-mails-story

  4. Lew on May 22nd, 2009 at 11:44

    Anita,

    I’m not arguing that usage is correct – I think it manifestly isn’t – but that people will accept it as correct if they don’t think too hard about it. It’s almostly exactly allegorical to the absurd notion that copying music = theft; its absurdity doesn’t prevent otherwise sensible people from thinking in those terms.

    L

  5. KINTO on May 22nd, 2009 at 12:43

    It is something that has interested me for quite a while, as I see it, it is interesting in a number of ways (which I hope I can articulate properly)

    People often talk about National and Labour as pepsi and coke, or just two different sides of the same coin, but this issue exploits what I see as one of the key differences between the parties.

    Labour appears allows much more internal dissent, they are allowed to argue among them selves, and when it comes to selecting candidates, the power balance is with the party locals. I guess it is advantageous for allowing the party to be more responsive to their grass roots.

    National on the other hand, head office has the balance of power in candidate selection, while I’m sure their must be headed debate within the party, large importance is placed on not making this public and presenting a united face too the public. This has the advantage of presenting one strong coherent message.

    Normally the importance of presenting a united image too the public takes precedence, how ever, should the people in charge stray too far towards one faction of the party funny things may start happening. Personally I think it looks like this has happened, Bill English (probably rightly in my opinion, which is worth very little as I’m not a national supporter) has not liked the direction they were going under Brash, and was probably of the opinion that stopping Brash getting in was better for the party long term than winning that election.

    The other thing I am interested in is the while speculation, innuendo and name calling. I’ve always maintained that if they asked nicely Hager would probably give them back the documents, but a box full of paper isn’t what they want.

    I’ve seen the speculation over email hacking, which is blatantly absurd when the non email documents are taken into account. In addition to this, the “someone walks out of the building with a box of paper” is the kind of thing that leaves very little evidence, and would result in police saying that their is no hard evidence and would only be able to proceed if something came up in interviews (or what ever it was, too that effect)

    I think it’s odd that people are so dismissive of Hager when he says that no crimes occurred, he knows for sure how and who they came from to him, I’d say in that case he is probably the best person to judge that.

    I’m in two minds over the current calls, as much as I’d like to see the resulting turmoil inside National, we are (in thier terms) only talking about a theft of a box of paper, and their is far more pressing matters for the police. If its the information written on that paper that matters, then they are essentially claiming them selves so important that a commission of inquiry is appropriate for solving a bit of in fighting.

  6. Graeme on May 22nd, 2009 at 16:58

    The theft idea isn’t National Spin – theft was the official police conclusion. I figure a detective inspector knows what “theft” means.

    Police have closed their investigation into the theft of e-mails from former National Party leader Dr Don Brash and have announced that they have been unsuccessful in identifying those responsible for the thefts.

    Detective Inspector Harry Quinn, the Officer in Charge of the investigation and Wellington Police District Crime Services Manager, said today that police had been unable to establish with certainty how the e-mails had actually been stolen.

    “How the thefts occurred still largely remains a mystery,” said Detective Inspector Quinn. “We have eliminated the suggestion that an external ‘computer hacker’ had breached the computer security within Parliament but there remains many other potential ways in which the crimes could have occurred.”

    “During the initial stages of the enquiry, police were very concerned that Parliamentary Services computer systems had been breached by some external attack. But the investigation has concluded that no unauthorised or unlawful breach took place.

    “Police became aware of the thefts during the lead up to the 2005 General Election but no formal complaint was laid by Dr Brash until September 2006. By that time rumours were widespread that large volumes of Brash e-mails were circulating within political and media circles.

    “The investigation established that e-mails created between October 2003 and November 2005 had been stolen from the ownership of Dr Brash but found no evidence of any thefts since November 2005. In late 2006 extracts from 475 separate Brash e-mails were used by Nicky Hager as the foundation for his book – “The Hollow Men”.

    “Mr Hager when interviewed by the investigation declined to identify to police the source of the e-mails he used in his book. Other than two e-mails that were tabled during Parliamentary debate, police did not locate any of the original stolen e-mails.

    “Detective Inspector Quinn would not speculate on how he thought the e-mails had been taken from Dr Brash.

    “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.

    The investigation saw police interview Parliamentary computer staff, Parliamentary Security staff, cleaners, members of Dr Brash’s staff, Politicians, journalists and friends of Dr Brash.

    “Many of them had their own theories on who was responsible and why the thefts had occurred,” said Detective Inspector Quinn. “But in the end no firm evidence pointing to a potential perpetrator was uncovered. The file is closed until someone comes forward with some compelling evidence.”

    Detective Inspector Quinn said that the investigation uncovered several anomalies with the current computer crimes law and the investigation file would be referred to Police Legal advisers to examine ways in which those loopholes might be overcome.

    http://www.police.govt.nz/news/release/3859.html

  7. reid on May 23rd, 2009 at 06:58

    I’m wondering why the media covers so widely the allegations in The Hollow Men but ignores the better documented allegations in Absolute Power.

    How peculiar.

  8. KINTO on May 23rd, 2009 at 21:20

    If its the theft of a box of paper that is so concerning those on the right, (not the information on that paper), then i’d struggle to think of a bigger waste of tax payers money in a commission of enquiry into the matter.

  9. jcuknz on May 23rd, 2009 at 22:41

    Are they really that concerned or is it simply a useful stick to beat the left with?

  10. SPC on May 23rd, 2009 at 23:44

    So,

    1. the left is portrayed as in the wrong for accepting the help of the moderate right with inside information about the extreme right.

    2. it is somehow a criminal act to oppose the machinations of the extreme right.

    3. the extreme right feels the need at this time to warn people from exposing them to the wider public.

    4. the police are warned they will be called “less than useful” if they do not assist the extreme right in silencing opposition.

    And this is only the first year of a right of centre government …

  11. Anita on May 24th, 2009 at 10:12

    Graeme,

    Yeah, I remember noticing the Police use of the word “theft” at the time and wondering what the reasoning was, particularly given that final paragraph. Did they genuinely believe that Brash no longer had the emails? Did they think it would be easier to mimic the language of the Nats (and the spun media)? Did they recognise that it wasn’t criminal but think it should be?

    But anything the Police said in 2008 doesn’t explain the Nats’ use of “theft” and “stolen” since Nov 2006, nor the media’s unquestioning adoption of the language.

  12. Graeme on May 24th, 2009 at 11:27

    Anita – you’d have to ask the police … and the media.

    I would note that what the police said in 2008 has ‘vindicated’ what National have said since 2006. National conducted an internal investigation at the time, it claims this rejected a leak, leaving hacking and theft open. This explains National’s use – they believed it was theft long before the police released their findings.

    The police took longer in their investigation, but seemed to reject leaking and hacking, leaving theft. National can point to this and say “see … we were right to call it theft”.

  13. Anita on May 24th, 2009 at 11:53

    Graeme,

    Can you remind me what the difference between leaking and theft is?

    I don’t see the Police rejecting leaking (but I agree they ruled out hacking). I see them using the word “theft” and even “stolen from the ownership” which, I would’ve thought, meant they had to believe that once the emails were taken Brash no longer had them. Which baffles me :)

  14. Lew on May 24th, 2009 at 13:02

    Graeme, did the police rule out theft or simply find no evidence either way (meaning it remains Hager’s word against Brash’s)? It seems impossible to prove that it wasn’t a leak, so if they ruled it out, upon what basis did they do so?

    L

  15. Graeme on May 24th, 2009 at 13:19

    Lew – the police explicitly ruled in theft; they said it was “theft”; several times.

    Anita – in general in cases such as this, leaking a document would involve giving it (or a copy of it) to someone not entitled to have it, but when you yourself were entitled to have it. Theft of a document would involve giving it to someone not entitled to have it, when you were not entitled to have it.

    The view of the police as to what actually happened seems best stated as:

    “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,”

    One possibility: Don Brash printed some of his emails, he left them on his desk, the door was left open one night for the cleaners and someone walked in late one night and took them, giving them to Nicky Hager. This would be theft, or possibly burglary.

  16. Anita on May 24th, 2009 at 14:36

    Graeme,

    Are you saying that from the police press release you are sure that

    1) The Police ruled out it having been done by someone who was entitled to access the material; and

    2) The Police concluded the emails were taken in a way that meant Brash no longer had them?

    I can’t see either of those in the press release, and they’d be a very big deal if the Police were sure of either of those.

  17. Graeme on May 24th, 2009 at 14:59

    I am not saying I am sure of anything.

    I am saying that if the police press release accurately reflects the police view of the matter, then the police are confident that (at least some of) the emails were stolen, such that they were taken by people not entitled to access to them, and taken in a way that meant Brash no longer had them (e.g. no longer had the physical copy of the email he previously possessed).

  18. BLiP on May 24th, 2009 at 19:32

    I think you said it best, Anita, on another blog when you used the expression “rinse and repeat” – and that’s why the media are lapping it up: its cheap, easy copy, detracts from other more important issues and, worse, obfusticates the real story: namely, the hollow men’s masters have simply applied their template to John Key & Co.

    The only conclusion I can draw is that the media owners are among the profiteering puppeteers that run the hollow men.

    As to how the emails could have been stolen, there are many possibilities. I am reminded of a wee trick my 16 year old nephew showed me – using a “flash drive” he basically cloned my lap top hard drive in less than 10 minutes, no password needed. And then there was the nifty prank he showed me with some sort of “blue tooth” device; he couldn’t get at the programme files but anything like a text file he could pretty much snaffle instantaneously – from the other side of the room! We spent an hour or so giggling at emails being sent by tourists from a back-packer hotel lobby “hot zone”.

    My point is that it would be pretty much impossible for the coppers to determine with sufficient evidence exactly how the “theft” happened without a confession from someone involved. The recently announced investigation of the investigation is, as you’ve said, a rinse and repeat denigration of Hager, his book, and the fact that its happened again, only this time “they” got away with it.

  19. Pascal's bookie on May 24th, 2009 at 20:31

    Surely it’s up to the courts to decide whether or not there was a theft?

    The police can say what they like but at most it’s still only an allegation, especially given they don’t have a firm handle on a course of events or any likely suspects.

    It seems to me the police are just using sloppy language. The stolen line was floating around, and they were treading carefully because they didn’t know what happened at all, and didn’t want to explicitly suggest a leak because that limited the range of identities for the leaker and ruled out a theft by Labour or others.

    The police couldn’t find out what happened and if you include leaks as a kind of theft, then the ‘stolen’ language includes all possibilities.

    If Hagers story is correct, then things would play out pretty much as they have. Otherwise, not so much.

    But using that press release from the coppers as some sort of definitive
    ‘proof’ of theft, implying that Hager is lying about his info having come from leakers in and around National, is not a theory with much going for it. However often it gets said.

  20. Graeme on May 24th, 2009 at 21:22

    Surely it’s up to the courts to decide whether or not there was a theft?

    No.

    It’s up to the courts to decide whether a particular person charged with theft has been proved guilty of it to the requisite standard.

  21. Pascal's bookie on May 24th, 2009 at 22:23

    Graeme, I’m confused.

    When you say “been proved guilty of it to the requisite standard”, are you not saying that the courts must decide whether or not the person has been found to be guilty beyond reasonable doubt of theft?

    Which is another way of saying, surely, that they must decide two things.

    They must decide whether the police have fingered the right individual, and they must look at the persons actions, compare those actions to the definition of theft, and say whether or not the person committed theft?

    Or are you saying that the police get to determine that what happened was definitely theft, and so all they need to prove is the person that did it? Because that seems strange.

    Or are you saying something else?

  22. reid on May 25th, 2009 at 00:40

    The real point is, if this had happened to the PM of the time, a book had been written, she had lost the 2005 election as a result, would everyone have been so sanguine.

    No?

    That’s the point.

  23. Pascal's bookie on May 25th, 2009 at 07:04

    Really reid?

    Funny, ’cause to me that just looks like a rather lame accusation of hypocricy based on a hypothetical alternative universe. Why on earth would such a thing ever be the point?

    And the book came out after the election in any case.

  24. Inventory2 on May 25th, 2009 at 09:01

    Anita – don’t get hooked up on “theft” – how about this:

    Crimes Act S228 – Dishonestly taking or using document

    *Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
    (a) dishonestly and without claim of right, takes or obtains any document; or
    (b) dishonestly and without claim of right, uses or attempts to use any document.

    Did Hager have “claim of right” of the documents he was given? I don’t think so. Did Hager use the doucments to gain “pecuniary advantage or valuable consideration”? He is a writer by profession. He wrote a book. Presumably he was paid a fee for writing the book. He used the documents as the basis for the book.

    I would suggest that there is a prima facie case against him on that basis. So why has he not been charged with this offence, punishable by up to seven years imprisonment?

  25. Anita on May 25th, 2009 at 09:09

    Inventory2,

    My whole point was about the words “theft” and stolen”: the Nats use them even tho they know it’s extremely unlikely to be true (because there has never been any evidence that Brash no longer had his emails). They do it because it’s an effective technique of spin.

    The media repeat it because … ? and fail to analyse it because … ?

    Sure it might be something-other-than-theft, but it’s the Nats choosing the language, and they’re choosing theft/stolen.

  26. Graeme on May 25th, 2009 at 09:39

    Inventory2 – you’re dreaming.

    Leaker: Nicky – here’s all of Don Brash’s emails.
    Nicky: Thanks.

    No dishonesty. No case.

    I’m also not sure that all those other words mean what you think they mean, either.

  27. Danyl Mclauchlan on May 25th, 2009 at 11:32

    One possibility: Don Brash printed some of his emails, he left them on his desk, the door was left open one night for the cleaners and someone walked in late one night and took them, giving them to Nicky Hager. This would be theft, or possibly burglary.

    An unlikely scenario since the leaders hall and office isn’t the sort of place you can just wander into and rummage around in. Opposition leaders sit on Intelligence and Defense sub-committees, there’s a fairly robust level of security around their workplace.

  28. TimM on May 25th, 2009 at 11:43

    Anita, you are saying something is only stolen if the legitimate ‘owner’ no longer has it? So you mean pirating software, music and movies doesn’t constitute theft after all? Because every time I watch a DVD at home there’s this big thing at the beginning about how downloading movies is theft, yet even if I had the studios would still have their original copy wouldn’t they?

  29. Graeme on May 25th, 2009 at 11:47

    Anita, you are saying something is only stolen if the legitimate ‘owner’ no longer has it? So you mean pirating software, music and movies doesn’t constitute theft after all? Because every time I watch a DVD at home there’s this big thing at the beginning about how downloading movies is theft, yet even if I had the studios would still have their original copy wouldn’t they?

    Absolutely. It’s not theft. It’s copyright infringement.

  30. Graeme on May 25th, 2009 at 11:49

    An unlikely scenario since the leaders hall and office isn’t the sort of place you can just wander into and rummage around in. Opposition leaders sit on Intelligence and Defense sub-committees, there’s a fairly robust level of security around their workplace.

    Unfortunately, every scenario is an unlikely scenario.

    There are Intelligence and Defence sub-committees?

  31. Anita on May 25th, 2009 at 12:15

    TimM,

    Yep, that’s exactly what I’m saying. It’s also what the law says.

    To borrow my example from up-thread:

    If a friend came to dinner and, while I was out of the room, photographed the painting in my living room then put the photo on her blog no-one would call her actions “theft” or say that either the photo or the painting were stolen.

    In the real world no-one calls copying something theft. It’s pure spin to try and sloppy journalism (at the very least) to repeat it.

  32. Matt on May 26th, 2009 at 07:41

    Whistleblowers are specifically protected by law. The leader of the opposition was conspiring with foreign forces to win the election with psychology, not debate. If obtaining these documents constitutes theft, why do Brash’s actions not constitute treason?

    1. The use of hyperbole by the extreme right diverts attention from the real issue: Brash and Crosby Textor. Control the language and control the debate.
    2. It’s working. Here you are debating the minutiae of the crimes act, when the real issue is politicians acting against the national interest.

  33. Lew on May 26th, 2009 at 08:46

    Matt,

    If obtaining these documents constitutes theft, why do Brash’s actions not constitute treason?

    Because treason is pretty closely defined, and doesn’t include ‘using wedge politics, PR agencies and lobby groups to get elected’.

    You can, of course, argue that it’s treason – but that’s as meaningless and stupid as people talking about `gang rape’ by the media.

    the real issue is politicians acting against the national interest.

    Who determines the national interest?

    I agree with your broader point, though – the significant issue here is the contents of the emails, not the circumstances of their release. However it advantages National to try to beat the latter up to be more important than the former.

    L

  34. Matt on May 26th, 2009 at 10:16

    Brash has only committed treason to the extent that Hagar has committed theft. Who determines the national interest? I was using hyperbole to drive the point home, but I suppose the answer to that question lies in the SIS charter, if there is such a thing. If the leader of the opposition was merely the puppet of Texan/Saudi oil interests, for example, you might expect the SIS to have some sort of file about it. Of course they wouldn’t: they’d be too busy joining peaceful protest groups, but you get my point.

  35. Lew on May 26th, 2009 at 10:28

    Matt,

    I don’t think anyone credible (not even Don Brash) is accusing Nicky Hager of theft – they might, at a logical stretch, accuse him of receiving stolen property (but haven’t).

    As to the national interest – it’s determined by the electorate, not some shadowy government apparatus. If the people of NZ want their country run by a PR machine with lobby interests, that’s their right – but it’s their right to know about it, which was the point of the book.

    L

  36. Matt on May 27th, 2009 at 06:33

    “it’s their right to know about it, which was the point of the book.”

    So if there’s a “right to know” it follows that there was a duty to expose. In other words, whoever gave the emails to Hagar would be immune from prosecution under crimes Act S228 because of this higher duty. Is this principle enshrined in law, or is it just what we’d like to happen?

    Shades of Clive Ponting.

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