RE: Consulting Question

["Craig Wright" <Craig.Wright () bdo com au>]

'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)
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-----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,