What is an illegal act

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

Hello,

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.

Any act that is a breach of primary, secondary or delegated legislation
is illegal. Any administrative offence or breach of the common law is
illegal.

Some of the types of offences include:
        Strict liability offences - intention is not relevant
        Administrative offences
        Offences which act against the sanctity of the court or
parliament (eg contempt)
        Civil offences (eg Tort actions)
        Criminal offences (offences that are listed on the local crimes
act or equivalent.

In each case there is also an issue of enforceability. Many actions are
illegal but not enforceable. Any nation that has ratified the cyber
crimes act (eg EU, US, NZ AU etc) will have to comply with the terms.
How this is done is a matter for the local jurisdiction.

Is Pen.Testing illegal without authorisation - easy yes. Is port
scanning, yes - but this is more difficult. Port scanning (without
authorisation) is illegal. The difficultly is that -
        1       Without damage to the site being scanned - port scanning
violations are not enforceable. It is still illegal but there can be no
punishment.
        2       Port scanning (without any resultant damage) 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.

This does not make the act any more or less illegal. Speeding and doing
108k in a 100k zone is still illegal. It is not likely that you will be
pulled over for this, but it is still an offence.

It is also not likely that you will be charged for ever having port
scanned (and not done anything else) a site. This does not make the act
more than it is. It is still an illegal act. It is not a criminal act in
itself, but this is not what is meant by illegal.

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

Further in a civil case, the onus is on the defendant to show that
his/her action did not result in the damage.

So lets take the case of port scanning. 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)

In this case, the activity other than valid traffic at the time the
server reboots is your port scan. 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. 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.

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.

Regards,
Craig

        Dr Craig S Wright DTh MNSA MMIT CISA CISM CISSP ISSMP ISSAP
G7799 GCFA AFAIM
Manager - Computer Assurance Services
BDO Chartered Accountants & Advisers
Level 19, 2 Market Street,
Sydney, NSW 2001
Telephone: +61 2 9286 5555
Fax: +61 2 9993 9705
Direct: +61 2 9286 5497
<Mailto:CWright () bdosyd com au>




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