Court rejects appeal by hacker

By CHRIS BARTON

The Court of Appeal has ruled that existing laws are sufficient to prosecute hackers committing internet or electronic fraud using hacking software.

The ruling has cleared up longstanding concerns that the Crimes Act in its present form is inadequate to deal with electronic crime, particularly fraud and forgery.

A parliamentary select committee is considering amendments to the act, prompted in part by a Law Commission report advising major overhauls to bring it into line with the information age.

But the Appeal Court judgment delivered by Justice Noel Anderson referred to the concept that a law should be construed "as always speaking," quoting Lord Hoffman in Birmingham City Council v Oakley: "When a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood.

"The content may change, but the concept remains the same. The meaning of the statutory language remains unaltered."

The case before the court involved Borislav Misic, who was appealing against his conviction on three counts of fraudulently using a computer program to make more than 88,000 minutes of international phonecalls worth $85,000 to $166,000.

The hacking technique is known as phone phreaking or blue boxing.

Misic was sentenced in July 1999 to 12 months' imprisonment suspended for two years and six months' periodic detention.

His appeal raised the question of whether a computer program and a computer disk on which the program was stored comprised a "document" as defined in Section 229A of the Crimes Act.

Fraud charges are defined in terms of both obtaining a document for "pecuniary benefit" and using a document with intent to defraud.

In Misic's case, the trial judge had ruled that the blue-boxing program downloaded from the internet and the disk it was stored on were documents.

The Appeal Court agreed and dismissed the appeal: "Essentially, a document is a thing which provides evidence or information or serves as a record.

"The fact that developments in technology may improve the way in which evidence or information is provided or a record is kept does not change the fundamental purpose of that technology, nor a conceptual appreciation of that function."

In the court's view, a piece of papyrus, a page of parchment, a copper plate or a tablet of clay containing information are all documents, regardless of whether "the method of notation were English, Morse code or binary symbols."

All, regardless of the medium, are documents because the defining feature is whether "there is a material record of information."

In the same way, the court says, a computer program and disk are documents because they "record and provide information."

But the judgment appears to leave a tiny possibility for future argument on the grounds that it contains little relating to the technology of the process Misic used.

The Crimes Amendment Act now before the select committee introduces a number of new offences related to using a computer for a dishonest purpose - intended to cover fraud and forgery using a computer, but also to close a loophole that under certain circumstances permitted theft by electronic transfer of funds.

It also introduces an offence of unauthorised access - specifically to cover electronic trespass or hacking.

Full text of the judgment: Crown v Borislav Misic