Security Basics mailing list archives
RE: Consulting Question
From: "Craig Wright" <Craig.Wright () bdo com au>
Date: Fri, 11 May 2007 08:53:11 +1000
'Mens Rea' or guilty mind is essential for fraud. (A simplified summary of the issue) False statement or false declaration is a crime of strict liability in most instances. In particular when one has not (on subsequently discovering the misstatement) repudiated themself. For a strict liability crime, all that is required is the "Actus reus". This is the guilty act. This is unlike the more severe crimes and offences where "actus non facit reum nisi mens sit rea" apply (in effect: an act does not make a person guilty unless the mind is also guilty). An example where strict liability applies is in traffic offences, it is no defence to state "sorry officer, I did not realise that I was driving 200km/h over the limit" even if you are 109, half blind and senile and thus may actually truly not know. Similarly the distinction from a false statement to fraud is proving intent. As such, most prosecutors just go the easy path and get a false statement and a few months. Fraud has the additional element of a guilty mind - which may be proven through emails; witness statements etc, but are a lot more work. So, yes, it is still a crime. Just a lessor one (if that really matters). However, I have never found anything amiss (other than a compromise or bad design) from a security viewpoint just looking at a site. It requires looking at the java source code or viewing the page source or similar actions. The intent of the web page is not to disseminate the source code. It may be publicly available, but this is still not a defence to pulling it apart. If you do, than nothing will occur unless you advertise that you are doing this. That is you contact the site owner or similar. The maxim that ignorance of the law is no defence has been a part of the law from the Roman civil republic. So this is nothing new. Intention just adds to the weight of a crime. There are many strict liability offences these days. Intention is often out the window. Further, it does little to help in a civil prosecution. A tortious case for damages if often just as bad. Generally (and this is from the 1900 Crimes Act, AU, and it is similar in the UK) a statement is made in the statute such as "which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular". So you're not taking the time to verify the truth of a statement is in fact the issue at the heart of the matter. So it is a material statement, thus a statement I have 4 years and 3 months experience on the CISSP application is not material if you have 4 years and 1 month as there is not a distinction (materially) in the outcome. If in fact you had 3 years and 10 months experience, this is material at that point. Clear as mud ;) Regards, Craig Craig Wright Manager of Information Systems Direct +61 2 9286 5497 Craig.Wright () bdo com au +61 417 683 914 BDO Kendalls (NSW) Level 19, 2 Market Street Sydney NSW 2000 GPO BOX 2551 Sydney NSW 2001 Fax +61 2 9993 9497 www.bdo.com.au Liability limited by a scheme approved under Professional Standards Legislation in respect of matters arising within those States and Territories of Australia where such legislation exists. The information in this email and any attachments is confidential. If you are not the named addressee you must not read, print, copy, distribute, or use in any way this transmission or any information it contains. If you have received this message in error, please notify the sender by return email, destroy all copies and delete it from your system. Any views expressed in this message are those of the individual sender and not necessarily endorsed by BDO Kendalls. You may not rely on this message as advice unless subsequently confirmed by fax or letter signed by a Partner or Director of BDO Kendalls. It is your responsibility to scan this communication and any files attached for computer viruses and other defects. BDO Kendalls does not accept liability for any loss or damage however caused which may result from this communication or any files attached. A full version of the BDO Kendalls disclaimer, and our Privacy statement, can be found on the BDO Kendalls website at http://www.bdo.com.au or by emailing administrator () bdo com au. BDO Kendalls is a national association of separate partnerships and entities. -----Original Message----- From: Stephen Thornber [mailto:skthornber () mac com] Sent: Friday, 11 May 2007 4:20 AM To: Craig Wright Cc: Simmons, James; sammons () cs utk edu; security-basics () securityfocus com Subject: Re: Consulting Question Is it a crime if it is done with out 'Mens Rea' ? I mean in a UK legal context: "guilty state of mind". Because if you have 'found something to be amiss' with a site as part of normal browsing then there can be no Mens Rea and if you found something without knowing it to be a crime again there is no Mens Rea. Alternatively of course not knowing the law and what you can and can't do in this day and age is more often considered as being no excuse..... I do not agree but then I disagree about a lot of things. Intention - did you intend to do it? Did you intend to do it well knowing it to be wrong? did you intend to do it for good, if misguided, reasons etc etc. Stephen Thornber MRSH, MBCS, CISM, CISSP On 9 May 2007, at 23:54, Craig Wright wrote:
Chris, My take would be: 1 Does the company have a statement on their site that categorically allows you to find other means of access and check the code? 2 Do they categorically and clearly state that they allow all forms of deep browsing? 3 Do they ask for you to check and find possible vulnerabilities? 4 Do you have a (good) prior contract with the firm to engage in these actions. If the answer is not "yes" to all three you have committed a trespass. There are limits on an implied access to a website. Any implied (i.e. not express access as mention above) access is limited by the aims of the firm and convention. Although public, websites are not designed to be targets (though they may end up as one). The result is that you have in fact breached the website owners property rights. The result is that in most (US, AU, NZ, EU) jurisdictions, you have committed a crime if you do this action. If you approach the firm - you have provided them evidence. If you post it to a list in this case there is evidence. Being public knowledge is not a shield. Estoppel provisions will not help you other than in for maybe downstream civil consequences. Google hacking is still a violation. The information is in Google, but you have to take an informed action to uncover it. This makes up intent. Regards,
Current thread:
- Re: Consulting Question, (continued)
- Re: Consulting Question Adam Pal-Moldovan (May 09)
- Re: Consulting Question sammons (May 09)
- RE: Consulting Question Jones, David H (May 09)
- RE: Consulting Question David Gillett (May 09)
- RE: Consulting Question Simmons, James (May 09)
- Re: Consulting Question me (May 09)
- RE: Consulting Question Al Saenz (May 09)
- RE: Consulting Question Laundrup, Jens (May 09)
- RE: Consulting Question Craig Wright (May 09)
- Re: Consulting Question Stephen Thornber (May 10)
- RE: Consulting Question Craig Wright (May 10)
- Re: Consulting Question Adam Pal-Moldovan (May 09)