Security Basics mailing list archives
Re: What is an illegal act
From: "D. Bolliger" <info () dbolliger ch>
Date: Tue, 4 Apr 2006 23:46:31 +0200
Hello all, This thread has been separated from "application for an employment" by Matthias Güntert. My intention is not to discuss the difference between legal and criminal per se, but with respect to the discussion mentioned. Craig Wright am Montag, 3. April 2006 00.19:
Hello,
Hello Craig please excuse my tone (if appropriate, english is not my native language) and the sarcasm found in this reply.
There is a lot of confusion regarding what is an illegal act. In part, numerous people on the list think that a criminal act is the only type of illegal act.
The wording "is" suggests an objective observation about reality. But your statement covers a linguistic, a juridical definition, an abstractum slipped over reality by interested parties. Most people on this list (I think) are more technically focused than juridical. That (partially) explains the "confusion" (the term as you use it here makes only sense in the "juridical universe" provided by the lawyer's view). [snipped away a more detailed description of the juridical view]
In each case there is also an issue of enforceability. Many actions are illegal but not enforceable.
speak: an issue of power of the interested parties to invent laws and pushing them into legislation by powerful lobbying. "Who has the power, is right" (who said that again?) [...]
Is port scanning [illegal], yes - but this is more difficult.
Good oportunity to refrain from yes-no / black-white polarity: Non-lawyers say something like "maybe", "depends", "sometimes" etc. instead of "yes - but this is more difficult".
Port scanning (without authorisation) is illegal. The difficultly is that - 1 Without damage to the site being scanned
Is it really so easy? Is there a straightforward (technical!) connection between port scanning and producing damage? I have big doubts on that.
- port scanning violations are not enforceable. It is still illegal but there can be no punishment.
Is the fact that it , *sigh*, cannot be punished regrettable/unbearable? To me, this statement expresses something only of interest for lawyers, and irrelevant for others, since it has no consequences for them.
2 Port scanning (without any resultant damage)
Again: The connection, expressed by "resultant", is not as straightforward as this rhetoric suggests.
is not a criminal offence unless the damage exceeds a set (local jurisdiction) amount 3 Civil action is available - but this requires something to act on (again damage etc) In the case of civil action with any level of damage, which would include an incident response there are actions that the site owner can take. They could act on the Tort of Negligence, the issue is that the damages awarded for this would likely be nominal at best and are unlikely to even cover costs. For this reason - few companies act on this as it is not a commercial decision.
Now we get nearer to the point: "commercial decicion" is the keyword here. Think SCO. [snipped further details of the juridical universe]
In cases of criminal offences - proof is generally (not everywhere) beyond reasonable doubt (about 90% certain) In civil and administrative cases the proof is anything over 50% - balance of probability
And the probability is obvious. By no means influenced by rhetoric, convincing the judges, having better lawyers (and more money to pay them), more time resources... ;-)
Further in a civil case, the onus is on the defendant to show that his/her action did not result in the damage.
That's very nice for the suitor... How to prove *not* done the damage? This demand is kafkaesque!
So lets take the case of port scanning.
Yes, let's take this case:
The server reboots and the database on the server (bad idea I know to have WWW and DB on the same system - but welcome to the real world) fails without a backup. A week before the company who owned the server/database had an evaluation of the worth of the IP on the database come in at $250,000 (not as large as you may think for a corporate IP database valuation as it includes cost to rebuild and recollate the data)
I'll set up a box that crashes on every port scan. The box runs a database with a $300,000,000,000,000 thing. Of course I don't backup anything. When I detect somebody port scanning having a lot of money, I take him to court: "hey, I want some bucks. Want avoid that? Then prove that the crash has nothing to do with your port scan!"
In this case, the activity other than valid traffic at the time the server reboots is your port scan.
And maybe my extraordinary honest hard work makes me a rich man. ;-) Sorry, there is a lack of technical understanding concerning port scans and its effects.
The company decides to prosecute. The database in the US and your are in central Europe. Under the provisions of the Cybercrime treaty the company who owns the server can do 1 of several things, 1 Criminal Damage - in either jurisdiction 2 Action in Tort (negligence, trespass etc) 3 Action in Common law (in the US) for will 4 Violation of the patriot act - provisions for cyber trespass etc. The company can choose the action and jurisdiction to best suit their needs - not yours.
Comfortable for the company and its lawyers!
If they have taken the action under a criminal sanction in their jurisdiction, they may seek to extradite you. There is not specific treaty for extradition needed - this is defined in the Cybercrime convention. If you are in a country that has ratified (all members of the EC included) this, than you have no way of stopping this other than to prove that you have not caused the damage. In the case of a civil action, this is started in the jurisdiction based on 2 factors, 1 Ability to enforce the judgement 2 the likely outcome (in the US there are punitive damages) An action in the US where damages are awarded may result in an action in your jurisdiction for enforcement as your jurisdiction will not necessarily recognise the decisions of the US court. So this may be a case in the US followed by a case in the place you come from to enforce the US decision. If the action is all within the same jurisdiction, than the issues are simplified.
Or: If the action is *not* within the same jurisdiction, then the issues are more *complicated*. This way to express it would be more precise, since the normal case (in the sense of well known, traditional) is a locally handled jurisdiction. But let's complicate the rules of the game by expanding it on a global level. More to earn then.
Either way - the end result is that you (the person port scanning) will be out of pocket. Laywers and advisors cost money. Lose and expect to have even more costs.
Now we reached the point. Thanks for your honesty. [...]
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Current thread:
- What is an illegal act Craig Wright (Apr 03)
- Re: What is an illegal act D. Bolliger (Apr 05)
- <Possible follow-ups>
- Re: What is an illegal act Bob Radvanovsky (Apr 03)
- RE: What is an illegal act Craig Wright (Apr 06)
- Re: What is an illegal act D. Bolliger (Apr 06)