Court ruling critical to hacker charges

By PETER GRIFFIN technology writer

A court decision that could prove critical to computer hacking cases is expected today, when criminal proceedings that began almost three years ago near their resolution.

Auckland man Andrew Garrett stands trial next month on 12 fraud charges for the copying of passwords from customers of internet service provider Telecom Xtra.

The Crown alleges that Garrett used a "Trojan horse" program, called Back Orifice, to find passwords and other personal details that let him use accounts belonging to Xtra customers.

At this week's pre-trial hearing in the Manukau District Court, Judge David Harvey heard final arguments concerning the key issue of whether the passwords Mr Garrett is alleged to have stolen could be classed as documents under the Crimes Act 1961.

A ruling on the definition will be handed down by Judge Harvey in another hearing scheduled for today, and is likely to take into account the failed attempts of convicted "phreaker" Borislav Misic to overturn his own conviction, which also rested on the legal definition of document.

In April, Mr Misic lost his Appeal Court case, which sought to overturn a two-year-old conviction for fraudulently using a computer program to make more than 1400 hours of phone calls worth at least $85,000.

Summing up in court yesterday, Judge Harvey compared the use of a computer password to the keying in of a credit card number when buying goods over the internet from websites like Amazon.com.

He said the credit card information originated from a document, and therefore that information, when stored on a computer, would probably constitute a document as well.

Meanwhile, Mr Garrett's defence counsel is continuing its appeal against Judge Harvey's previous ruling, which found that existing charges against the accused of wilful damage and threatening to damage property could stack up according to the Crimes Act, and computer demonstrations may be conducted during the trial for the benefit of a jury.

The Crimes Amendment Bill No. 6, currently before the law and order select committee, is expected to be passed in the next two months, adding much-needed clarification to the Crimes Act where cases of computer hacking are concerned.

Mr Garrett's lawyer, Michael Levett, said he had made a submission to the Court of Appeal, and would carry through on that if Mr Garrett was found guilty.

"If he is acquitted of the charges, there is no point in the Court of Appeal getting involved and reviewing the matter," he said.

The man at the centre of the drawn-out case just wants the legal proceedings to end so that he can get on with his life.

Mr Garrett said the fact he had been on bail for so long had made it nearly impossible for him to secure employment, and the case had taken a major toll on his family.

"This case has been part of our lives for nearly three years. Several times I have come very close to shutting up and saying, 'Do what you want with me,' but my wife has stood by me all the way and encouraged me to fight it."

Mr Garrett's trial, which begins on July 2 and is expected to run for two to three weeks, may include evidence being presented from an Australia-based witness via a video link.