RE: application for an employment

["Craig Wright" <cwright () bdosyd com au>]

Hello Ansgar,
You are failing to understand the distinction between illegal and
criminal.

The fact that you are not able to be charged or that there is not any
enforceable action available does not stop an action being illegal. The
fact that there is not a penal code associated with an action also does
not make it legal. This is a condition associated with enforceability.

As for reading up the articles, Ansgar - I have. I have formal training
in EU law and International commercial law. You? In the case where a
party to the treaty (i.e. a nation) has not ratified the legislation the
court has to approach the International court of justice for directions.
These directions are binding under the treaty.

In reference to; "It does for at least the public facing pages." does
not refer to public facing servers. In no way is it valid to argue that
the external interface of a VPN concentrator is available for public
use.

My legal training may be English (and Australian), but the EU treaty is
the same. As far as the conditions associated with the ratification of
the conventions is concerned it does not matter that you are German,
English etc.

You are also taking the document as face value without looking to the
related data needed to interpret it. You asked what EM is, "EM" is
Explanatory Memorandum. From this you will note that "A port scan is not
punishable under the Penal Code. For an explanation, please refer to
Chapter 4 of this manual" This means that the act is not to be treated
as criminal. This does not make the act unactionable as a civil
violation or and administrative offence. This is that it is still
illegal, but only actionable if there is resultant damage.

Again - illegal and criminal are not the same. Trying to treat them as
such is wrong. Criminal is a subset of illegal. Illegal is the superset.

You also forget that many sites use publicly routed addressing behind a
firewall. So attempting to scan these is an attempt to scan a protected
device.

To conclude, this is not as far as I have been concerned a private
conversation. At no point have you stated that it was to me. It is a
thread from a list, started on a list. Unless you state it to be private
and off the list I will not assume that this is the manner of the
communication. In this I have received messages that have been BCC'd to
the list from yourself. I do not wish to ascertain your thoughts, so
unless you state the conversation to be private and I agree to this, I
will assume that it is not. This is not a communication started in a
private manner.

Regards
Craig

-----Original Message-----
From: Ansgar -59cobalt- Wiechers [mailto:bugtraq () planetcobalt net]
Sent: 3 April 2006 10:43
To: Craig Wright
Cc: security-basics () securityfocus com
Subject: Re: application for an employment

On 2006-04-03 Craig Wright wrote:
> > I don't know why you are taking a private conversation back on-list,
> > but so be it.
>
> As I am having the same conversation with multiple people on and off
> the list it is simpler to have it on the list.

Then I suggest you ask for permission to do so first, because dragging
private communication into public is not only offensive but may be
considered an actual offense under german jurisdiction (the BGH already
decided on this, see Az. I ZR 211/53).

> > > In particular; Article 6: Misuse of devices/possession and misuse of

> > > systems and tools that are suitable for carrying out an action as in

> > > Article 2-5.
> >
> > You obviously fail to understand that for these articles to apply I
> > have to actually do something illegitimate. However, contrary to your

> > belief using a portscanner to find out what services a host provides,

> > or even using an open relay to send out mail (as long as it's not
> > spam, but this is covered by other laws), is NOT illegal.
>
> Actually, you fail to comprehend that these are being setup as strict
> liability offenses. This is similar to how a parking ticket is strict
> liability as a simplistic way of explaining the concept. Just as you
> do not need to have intent to get a parking ticket - you do not need
> intent for the A 2.5 issues.

Wrong. Each of the articles 2 through 5 and also article 6 *expressly*
state "when committed intentionally". Read it up. And the discussed
matter is still not subject to these laws, because all of them require
that either the action was illegal to begin with or that at least some
actual damage was done. The former is not the case and the latter is not
subject to this discussion, no matter how often you try to bring it in.

> > No. This is exactly the point where you are wrong. I do have the
> > right to access a host without getting explicit permission
> > beforehand, so these laws simply don't apply.
>
> EM paragraphs 47-48, 58, 62, 68 and 77

What is "EM" supposed to mean? The european convention on cyber-crime
has only 48 articles, and I fail to see what other document you might be
referring to by that abbreviation.

> also make clear that the use of such tools for the purpose of security

> testing authorized by the system owner is not a crime. You are not the

> system owner or as a member of the public authorised.

As long as they say nothing about a general prohibit it doesn't matter
in which cases they are expressly allowed. That's just examples.

> > However, what service a host on the Internet is running, does in no
> > way qualify as privacy-related data.
>
> Actually it can and generally does -

No. If you really believe so, you are misinterpreting the term privacy
as it is used in the BDSG. privacy-related data are data that can be
associated with a person (like address, date of birth, license number,
medical records, etc.). The term does not generally refer to all data
that may be considered private.

> just as a system has some public facing pages does not make it all
> public information.

It does for at least the public facing pages.


[ Article 6 snipped ]

> Article 5 - transmitting data without right that causes harm. If the
> port scanner intentionally or not causes a system to reboot for
> whatever reason, then there is an offence. What you feel, like want -
> irrelevant.

This is NOT what article 5 says. You may want to make a reality-check:

| Article 5 - System interference
|
| Each Party shall adopt such legislative and other measures as may be
| necessary to establish as criminal offences under its domestic law,
| when committed intentionally, the serious hindering without right of
| the functioning of a computer system by inputting, transmitting,
| damaging, deleting, deteriorating, altering or suppressing computer
| data.

You'll note that contrary to your belief the article actually does say
that intent is a required precondition. You'll also note, that the
article talks about "serious hindering". Whether a single reboot would
qualify as such is arguable.

And I already said from the beginning that one in fact may be held
liable for causing damage, even if it was done unintentionally. However,
this does by no means imply that the action leading to the damage was
illegal to begin with.

Regards
Ansgar Wiechers
--
"All vulnerabilities deserve a public fear period prior to patches
becoming available."
--Jason Coombs on Bugtraq

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