Re: What is an illegal act

["D. Bolliger" <info () dbolliger ch>]

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.

[...]
> DISCLAIMER
> The information contained in this email and any attachments is
> confidential.

Please elaborate on (private) confidentiality on a (public) mailing list.

> If you are not the intended recipient, 

How can I decide that? Who are the intended recipients? Are there any non 
intended recipients? May I forward your posting?

[...]

Dani

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