RE: What is an illegal act

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

Hi Dani,
Not all laws are based on legislation.

> Is the fact that it , *sigh*, cannot be punished regrettable/unbearable?
Not to me. There are others who would see this otherwise. I could not see myself even recommending an action against a 
person who even constantly scanned a site. I do not see that value of the action. This does not stop one being 
available. More on this in a follow-up post. I would not have taken the action that Sony has either, but my views on 
this are not of consequence.

Commercial decision is right. Remember that many commercial firms think they are there to punish any transgressors of 
their rights (and this may lead to an action of the shareholders against the directors for taking an action against a 
person port scanning - but this is another issue again).

How to prove that there has not been damage from the port scan.
1       Is there a course of action from the claimant. Do they try to stop all people port scanning them - they can not 
just pick on arbitrary cases. They need to demonstrate an intent to protect the property.
2       Logs, They need to have proof as well. Discovery will allow the defendant to see the logs - all of them. These 
materials may end up in the public sphere - something that the corporation etc may not want.
3       The damage needs to be directly related to the action. This will answer the next question...

> 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!"

First the claimant will only receive reasonable damages. (Lets ignore punitive cases in the USA). This would be the 
costs of recovery. This at worst would include an expert in digital forensics to access the drive and recover the data. 
Not even all legal costs are recoverable. If the claimant to damage wins the claim - they may get 50-60% of costs back. 
They will not get full recovery.

Next you have to have valid access to the $3x10^14 thing. Without taking adequate precautions you are going to be up 
for a claim of negligence a tort or breach of contract - circumstances to determine). This will far exceed the claim 
against the port scanning person.

An example of a case where port scanner have caused reboots. A few years back, MS NT 4 had a few issues with TCP 135 
and 1035. Certain scans that hit both these ports and closed "badly" would blue screen the system. If the drive had a 
corruption (lets take Exchange 5.5) on a file - data could be lost.

As for the disclaimer. This is a firm standard. It is a generalised disclaimer that I have no way of changing. Private 
refers to the individual - i.e. myself. In posting this it is a private action and does not (unless given in signed 
form) represent the views of the firm as a whole.

As for intended recipients, this is post in error. If there was a person who had a similar name for instance. Posting 
to the list is intended.

Regards,
Craig

-----Original Message-----
From: D. Bolliger [mailto:info () dbolliger ch]
Sent: 5 April 2006 7:47
To: security-basics () securityfocus com
Subject: Re: What is an illegal act

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

---------------------------------------------------------------------------
EARN A MASTER OF SCIENCE IN INFORMATION ASSURANCE - ONLINE The Norwich University program offers unparalleled Infosec 
management education and the case study affords you unmatched consulting experience.
Tailor your education to your own professional goals with degree customizations including Emergency Management, 
Business Continuity Planning, Computer Emergency Response Teams, and Digital Investigations.

http://www.msia.norwich.edu/secfocus
---------------------------------------------------------------------------


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.

DISCLAIMER
The information contained in this email and any attachments is confidential. If you are not the intended recipient, you 
must not use or disclose the information. If you have received this email in error, please inform us promptly by reply 
email or by telephoning +61 2 9286 5555. Please delete the email and destroy any printed copy. 

Any views expressed in this message are those of the individual sender. You may not rely on this message as advice 
unless it has been electronically signed by a Partner of BDO or it is subsequently confirmed by letter or fax signed by 
a Partner of BDO.

BDO accepts no liability for any damage caused by this email or its attachments due to viruses, interference, 
interception, corruption or unauthorised access.

---------------------------------------------------------------------------
EARN A MASTER OF SCIENCE IN INFORMATION ASSURANCE - ONLINE
The Norwich University program offers unparalleled Infosec management
education and the case study affords you unmatched consulting experience.
Tailor your education to your own professional goals with degree
customizations including Emergency Management, Business Continuity Planning,
Computer Emergency Response Teams, and Digital Investigations.

http://www.msia.norwich.edu/secfocus
---------------------------------------------------------------------------