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Home / Technology

Government talked the talk, but then didn't walk the walk

17 Jun, 2002 08:05 AM5 mins to read

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By CHRIS BARTON

So many laws, so much bickering, so little time. That's the mantra to explain why yet again the Government has failed to pass any computer laws.

Parliament has shut and politicians are now in the throes of election fever. But the unfulfilled bills remain on the last Government orders of the day for the 46th Parliament. There they stay in suspended animation until Parliament sits again.

The most pathetic delay involves the Electronic Transactions Bill - a testament to the difference between rhetoric and action.

Here is a Government that has trumpeted long and loud the importance of the knowledge economy - first with the E-commerce Summit and then the Catching the Knowledge Wave conference. It has also made information and communication technology a key plank of its Growing an Innovative New Zealand strategy.

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So you would think, with all this talk, the Government could at least pretend to walk the walk by passing laws to ensure electronic business transactions such as contracts and deeds have the same status as the paper-based kind.

But no, the bill is not to be law. Minister for Information Technology Paul Swain describes the situation as "a source of constant frustration and irritation".

The bill, born in 2000, has made it through select committee to second reading. But at the last hurdle it foundered, held up by both the Green and Act parties, according to Swain.

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The Greens stopped the Government from calling frequent urgency meaning a lack of debating time. And Act MP Stephen Franks suggested some last-minute changes.

But isn't that just democracy in action? Yes, says Swain and opposition parties have every right to debate and delay bills to ensure good legislation is passed, "but there is a difference between debating and being obstructive".

In his view there are occasions - and the Electronic Transactions Bill is one of them - when opposition parties should step back from debate for the good of the nation.

He has a point. If e-commerce is ever going to get off the ground in New Zealand a relatively innocent bill allowing e-transactions in law is essential. But then Franks has some points too, showing up flaws in some of the "technology neutral" definitions of the bill.

True, Franks should have raised his concerns at select committee stage but his tardy efforts have brought at least one change in the definitions. Better late than never.

But the frustration of the Electronic Transactions Bill is an example of why Labour has called an early election. With a greater mandate from the people, it could call as much urgency as it needed and push legislation like this through.

But would that always be a good thing? In a democracy debate is the only weapon against stupidity and stupid laws.

Take, for example, another set of languishing laws - the Crimes Amendment Bill (No 6). This bill has been aborted so many times it probably should never come to life.

It was first conceived in the Crimes Bill 1989 which recommended three separate offences dealing with the improper accessing of a computer: for obtaining a benefit or causing a loss; with intent to benefit or loss; and just accessing for the hell of it.

But the bill fell between the cracks of a general election and was never enacted. Ten years later, passed between successive Labour and National governments like an unwanted orphan, it still hasn't been enacted.

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Surprisingly, this absence of e-law has shown our existing laws cope quite well with the small outbreak of e-crime over the last decade. The phone phreaker Borislav Misic was convicted in July 1999 of fraudulently using a computer program to make about $85,000 worth of international phone calls at Telecom's expense.

Misic appealed in April last year, but lost. The Appeal Court judgment referred to the concept that a law should be construed "as always speaking".

In other words, technology may come and go but laws - if they are properly written in the first place - live on forever.

The Misic case has enabled quite a few other hacker prosecutions including that of Andrew Garrett, who in July last year was found guilty by a jury on five counts of fraud and one count of threatening to damage property.

The same goes for other existing laws. Internal Affairs routinely prosecutes paedophiles holding obscene digital images on their computers and in September last year Patrick O'Brien won $42,000 in damages in a landmark internet defamation case against Alan Brown.

There is, however, one rather large loophole highlighted by a Court of Appeal case in 1999 (R v Wilkinson) where a conviction of electronic theft was overturned.

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That was because our law didn't recognise the existence of electronic credits - as in bank transfers - meaning they cannot be stolen. That needs to be sorted out.

But the Crimes Amendment Bill also has a number or provisions that threaten individual privacy, which is why it failed to become law this year. The Greens wouldn't support the bill - describing it as "a wolf in sheep's clothing".

Why? Because in order to create a specific law against hacking - unauthorised access to a computer system - the bill has to exempt police, the SIS and GCSB so they can intercept electronic communications.

Swain says law-abiding netizens have nothing to worry about. The Greens say it gives far too much power to Government agencies to spy on citizens' private lives.

If Labour gets a mandate in the next election, that debate becomes irrelevant because the bill will be pushed through.

Which would be a shame, because it is a debate worth having.

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But more importantly, our decade of e-law absence begs the question whether specific laws covering computers are needed in the first place.

If the concept of statutes "always speaking" is properly applied to existing laws, then theft, wilful damage, fraud, forgery and trespass are the same - whether they occur in the virtual or the real world.

*

Crimes Amendment Bill (No 6) Computer Misuse

Greens fact sheet on Government plans for e-mail and hacking

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