The cyber world went into overdrive last week following the revelation that Sydney Morning Herald Journalist Ben Grubb was arrested by Queensland Police in relation to receiving images from a Christian Heinrich, a security expert, who had obtained them from a Facebook page that he was not entitled to have access to.
Lawyers, journalists and the Twitterati have been madly publishing harsh critiques of the police. Many inaccurate statements have been written which make the police look heavy handed and possessing questionable judgment.
I read with some disappointment an article by Peter Black (whom I greatly respect and was my teacher at one point) from the QUT law school where he argues that:
This incident raises questions relating to the … the questionable judgment of the Queensland Police in deciding to pursue the journalist who reported the story (and not as yet the researcher who managed to obtain access to the private photos), and whether Australia’s laws provide proper safeguards for journalists.
But this commentary is at odds with the transcript of the interview between police and Grubb which was posted (the day prior to his article) by the SMH where it says:
EC: Yeah ok but unfortunately we can't deal with Christian right now for various reasons.
BG: He went on a plane?
From the overall tone of the interview it appears that Heinrich is the person in the sights of the police. They even asked Grubb to provide a statement to be used against Heinrich. Black also argues that “[t]he Queensland Police presumably saw [Grubb’s] story, with the photo, and believed that Grubb therefore may have had evidence relating to a criminal offence.” Again he makes assumptions on matters that are found to be false. The police only acted after receiving a complaint from Chris Gatford, the husband of the woman whose Facebook photos were obtained.
Finally, Black argues that this is not a case of computer hacking under the Queensland Criminal Code. He says that:
Section 408E of the Queensland Criminal Code Act 1889 deals with computer hacking and misuse. However, as Heinrich did not use “a restricted computer without the consent of the computer’s controller” to obtain access the privacy-protected photo, that provision would not apply.
I think this is a narrow view of the law. While I yield to his credentials as a law scholar, I would argue that this charge cannot be thrown away so casually.
My reasoning is that Ms Gatford has secured her photo’s behind a password and restricted their access to non-friends. What has occurred is that a backdoor was found in order to circumvent the safeguards imposed by Gatford. To say that finding backdoors around security passwords to gain access to private information or photo’s is not hacking opens even wider problems for internet users. The URL’s for the location of the photo’s are also protected by a code – the random URL. It allegedly took Heinrich 7 days to work through and access the right URL code to obtain these photo’s. Facebook and Ms Gatford had taken steps to protect these photo’s through a password and random URL links. I think this would satisfy the definitions of restricted computer and controller in the computer hacking section of the Queensland Criminal Code. But this is just my opinion on the law taking into account what facts are in the public domain.
Where I feel the police have been harshly treated is that they received a complaint that an illegally obtained photograph was sent to a journalist who subsequently published it in the SMH. What were they supposed to do? Ignore the complaint? No, they spoke to the only person available who could assist, Ben Grubb. While the actual arrest was probably unnecessary in the circumstances, it was not unlawful. I have also heard a ridiculous claim (by Terry O’Gorman, VP Civil Liberties Council) that police arrest powers are confined to cases of Murder or serious crimes. That may be what Terry wants but it is not the law.
The real problem here is that many people seem to think that journalists should be given a free pass. If the data obtained were profiles (including photographs) from a child abuse victims support Facebook page (rather than an adults personal page) and this was sent to a known paedophile would the response be so harsh? Would lawyers and journalists be up in alms about the rights of the paedophile to keep the photo or publish it online? Why should journalists be treated differently? Who says that journalists are always ethical? They suffer the same flaws as the rest of us. And some have been known to go over the top in their reporting.
I for one don’t want the situation where police are given the choice of who to investigate and who to leave alone. The police acted lawfully, professionally and appropriately. Had Grubb not received and published the photograph in question, it would have been a great story on the security vulnerabilities in Facebook. But to receive and publish other people’s private photographs in the paper, without their permission, overstepped the bounds of common decency and possibly the law.
