Re: Draft Convention on Cybercrime

[David Dennis <dennisd () best com>]

This is the focus of the argument - should somebody be held accountable
for words others write which they publish -- Is discussing a crime a clear
and present danger to committing a crime.  Is publishing on topics that
are illegal the same as committing illegal acts ?  This would be prior
restraint on speech of it were held to be true.  The burden of proof,
which is quite high, is on the government to prove your publishing had a
significantly dangerous or detrimental to society result.  Not somebody
acting on your words - your words alone.

It looks as though this law is being drafted along the international
contraband / trade model, rather than the US Constitution/free speech
model, which makes sense if your intent is to censor speech but have to
circumnavigate the constitution.  As far as I know, nobody reading or
discussing NMAP ever crashed corporate servers.  Concerted effort on the
part of people going beyond the 'look and read' level crashes
servers.  I believe there's just going to be a big dilemma what body of
law to base the net around.

Hope this is of some value to the discussion,


David M Dennis
dennisd () best com

 On Sat, 3 Jun 2000, Mike Black wrote:

> Date: Sat, 3 Jun 2000 07:29:40 -0400
> From: Mike Black <mblack () csihq com>
> To: nmap-hackers () insecure org
> Subject: Re: Draft Convention on Cybercrime
>
> I'm not a lawyer either...but...it reads pretty clear to me.
>
> All of us that use nmap would NOT be in trouble...only the author, the
> web/ftp site and possibly this mailing list.
>
> Quote:
> a device, including a computer program, designed or adapted [specifically]
> [primarily] [particularly] for the purpose of committing any of the offences
> established in accordance with Article 2 - 5;
>
> The above offense and the definition below would say that making nmap and
> putting on a website for download would fit under the definition of "dolus
> eventualis" -- also know in Homer Simpson terms as "Doh!".  There's no way
> that an author or web/ftp site could say "well gee, we didn't think it would
> be used for bad purposes".  It's only a little bit of a stretch to say that
> a mailing list is a "piece of software" that educates users how to do bad
> things (note -- I'm not talking about majordomo here...but the specific
> mailing list).  Hacker websites would most certainly be targeted.
>
> (6) In the understanding of certain members of the Drafting Group, "intent"
> may also cover "dolus eventualis". For common law countries, this notion
> would be similar to "recklessness", i.e. that a person is aware of the high
> risk that a certain result may occur and knowingly accepts it. The Drafting
> Group agreed that the interpretation of "intent" should be left to national
> laws, but it should not, where possible, exclude "dolus eventualis".
>
>
> ----- Original Message -----
> From: "Bart van Leeuwen" <bart () ixori demon nl>
> To: "Matt Marnell" <coldfuzion () coldfuzion net>; <nmap-hackers () insecure org>
> Sent: Friday, June 02, 2000 6:38 PM
> Subject: Re: Draft Convention on Cybercrime
>
>
>
>
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