Jury finds half of hacking counts proven

By PETER GRIFFIN technology writer

A jury returned a split verdict yesterday in the long-running trial of computer hacker Andrew Garrett. It found him guilty on five charges but was undecided on five others.

Garrett was found guilty on four counts of reproducing a document with intent to defraud and one count of threatening to damage property.

The fraud charges relate to Garrett's obtaining internet access passwords from computers remotely, using the Back Orifice trojan virus.

Unanimous on half the charges, the jury was split 11-1 on whether Garrett was guilty of the remaining allegations - one of wilful damage and four of fraud relating to Garrett's alleged use of Back Orifice.

An aspect of the undecided charges that may have weighed heavily with the jury was whether Garrett acted dishonestly and with intent to defraud when using the Back Orifice program.

The final charge on which he was found guilty was threatening to damage property. This related to a message Garrett sent to an Xtra account holder telling the user to change their internet service provider or have information on their hard drive deleted.

Judge David Harvey will sentence Garrett next month for the five offences on which he was found guilty. His decision will draw considerable interest as there have been few prosecutions for similar cases.

In April, the Court of Appeal rejected Borislav Misic's bid to overturn his July 1999 convictions on two counts of fraud and one of forgery. Misic had used a hacking technique known as "phone phreaking" to make international calls worth more than $85,000. He received 12 months' imprisonment, suspended for two years, and six months' periodic detention.

In comparison, Garrett is believed to have gained just a few cents' worth of internet access from using the passwords he was found guilty of obtaining.

Judge Harvey ordered a retrial on the five undecided charges, but the Crown has yet to decide whether to press ahead with these. Whether a retrial takes place is likely to hinge largely on the penalty Garrett receives.

Crown prosecutor Michael Heron asked: "Is the gravity of what he has done fairly reflected in the convictions and sentence that he gets?

"It may be that looking at the cost and benefit to the community of going again we say it isn't worth going again."

He said the Crown was happy that the technical evidence presented in the case, which included an in-court demonstration of the Back Orifice program in action, had not served to baffle the jury.

"In a complex trial, we're pleased we convinced 12 people on five of the charges."

Garrett's lawyer, Michael Levett, said the result was naturally disappointing for the defence, but the jury had been divided over half the charges.

"There has not been agreement on what could be considered the most serious charges," he said.

Whether Garrett would appeal was yet to be decided.

But Auckland barrister Chris Patterson, of Eldon Chambers, said there were good grounds for appeal, even though judges in both the Garrett and Misic cases had ruled that computer data could be treated as a document under the Crimes Act.

"My view is that a document has to be something tangible or physical whereas a password is not a tangible item."

Mr Patterson said the verdicts vindicated those in the legal fraternity who had been arguing for the introduction of anti-hacking legislation and compared the status of computer data under the Crimes Act to electricity.

"Once upon a time you couldn't be charged with the theft of electricity because it's not a tangible. But they amended the Crimes Act to allow you to do so.

"I think anti-hacking legislation is something that has been lacking from the Crimes Act, to enable someone to be prosecuted for knowingly accessing computer systems."