Hacking and Computer Crime

Legal Tools
Citrin case
Nosal case
TJX hack
Zero-day attacks
Kutztown 13
Randal Schwartz
Terry Childs
Julie Amero
Jeremy Hammond
Andrew "Weev" Auernheimer
David Carruthers


To some of you, hacking is clearly wrong and there shouldn't even be a question here. If you're one of them, just pay attention to the legal-strategies-against-hackers part. However, is using a website in a manner contrary to the provider's intentions always hacking? A more serious example is logging on to a site, but not changing anything and in particular not committing theft.

Baase's "three phases of hacking"

1. Early years: "hacking" meant "clever programming"

2. ~1980 to ~1995:
    hacking as a term for break-in
    largely teenagers
    "trophy" hacking
    phone lines, BBSs, gov't systems
    lots of social engineering to get passwords
1994 Kevin Mitnick Christmas Day attack on UCSD (probably not carried out by Mitnick personally), launched from apollo.it.luc.edu. [!]
3. post-1995: hacking for money

early years / trophy hacking

A common argument is that during this era the word "hacking" meant clever programming; certainly the word was frequently used that way. But it was also used to describe "phone phreakers": those who hacked the phone system. The following purports to identify the "first recorded usage of 'hacker'" in 1963: manybutfinite.com/post/first-recorded-usage-of-hacker, and it is clearly a reference to phone phreaking.

Phone phreaking: see Baase, 4e p 232, 247
Joe "The Whistler" Engressia was born blind in 1949, with perfect pitch. He discovered (apparently as a child) that, once a call was connected, if you sent a 2600 Hz tone down the line, the phone system would now let you dial a new call, while continuing to bill you for the old one. Typically the first call would be local and the second long-distance, thus allowing a long-distance call for the price (often zero) of a local call. Engressia could whistle the 2600 Hz tone.
According to the wikipedia article on John Draper, Engressia also discovered that the free whistle in "Cap'n Crunch" cereal could be modified to produce the tone; Engressia shared this with Draper who popularized it. Draper took the nickname "Cap'n Crunch".

As an adult, Engressia wanted to be known as "Joybubbles"; he died August 2007
Draper later developed the "blue box" that would generate the 2600 Hz trunk-line-idle tone and also other tones necessary for dialing.
How do we judge these people today? At the time, they were folk heroes. Everyone hated the Phone Company!
Is phone-phreaking like file sharing? Arguably, there's some public understanding now that phone phreaking is wrong. Will there later be a broad-based realization that file-sharing is wrong?
How wrong is what they did? Is there a role for exposing glitches in modern technology?
From Bruce Sterling's book The Hacker Crackdown: Law and Disorder on the Electronic Frontier, mit.edu/hacker:

What did it mean to break into a computer without permission and use its computational power, or look around inside its files without hurting anything? What were computer-intruding hackers, anyway -- how should society, and the law, best define their actions? Were they just browsers, harmless intellectual explorers? Were they voyeurs, snoops, invaders of privacy? Should they be sternly treated as potential agents of espionage, or perhaps as industrial spies? Or were they best defined as trespassers, a very common teenage misdemeanor? Was hacking theft of service? (After all, intruders were getting someone else's computer to carry out their orders, without permission and without paying). Was hacking fraud? Maybe it was best described as impersonation. The commonest mode of computer intrusion was (and is) to swipe or snoop somebody else's password, and then enter the computer in the guise of another person -- who is commonly stuck with the blame and the bills.

What about the Clifford Stoll "Cuckoo's Egg" case: tracking down an intruder at Berkeley & Livermore Labs; Markus Hess was a West German citizen allegedly working for the KGB. Hess was arrested and eventually convicted (1990). Berkeley culture at that time was generally to tolerate such incidents.

Robert Tappan Morris (RTM) released his Internet worm in 1988; this was the first large-scale internet exploit. Due to a software error, it propagated much more aggressively than had been intended, often consuming all the available CPU. It was based on two vulnerabilities: (1) a buffer overflow in the "finger" daemon, and (2) a feature [!] in many sendmail versions that would give anyone connecting to port 25 a root shell if they entered the secret password "wiz".

Were Morris's actions wrong? How wrong? Was there any part that was legitimate? RTM was most likely trying to boost his academic reputation by discovering a security vulnerability. There was no financial incentive.

The jury that convicted him spent several hours discussing Morris's argument that when a server listened on a port (eg an email server listening on port 25), anyone was implicitly authorized to send that port anything they wanted. That is, it is the server's responsibility to filter out bad data. While the jury eventually rejected this argument, they clearly took it very seriously.

Morris went on to become a professor at MIT.

Mitnick attack: how much of a problem was that, after all? There are reports that many Mitnick attacks were part of personal vendettas. (Most of these reports trace back to John Markoff's book on Mitnick; Markoff is widely believed to have at a minimum tried to put a slant on the facts that would drive book sales.)

Stage 3: even now, not all attacks are about money.

Baase, 3e p 259:
"In 1998, the US Deputy defense secretary desribed a series of attacks on US military computers as 'the most organized and systematic attack the Pentagon has seen to date.' Two boys, aged 16 and 17, had carried them out."
What about the London attack of about the same era on air-traffic control?

2000: the "Love Bug" or ILOVEYOU virus, probably by a pair of Phillipine programmers Reonel Ramones and Onel de Guzman. If you read the subject and opened the document, an MS-word macro launched the payload, which would then send the virus on to everyone in your address book.

MS-word macros were at the time (and still are) an appallingly and obviously bad idea. Should people be punished for demonstrating this in such a public way? Was there a time when such a demonstration might have been legitimate?

Some Loyola offices still create forms as word documents with macros, and expect the rest of us to fill them out.

Yahoo ddos attack & mafiaboy, aka Michael Calce

The attack was launched in February 2000. Calce got discovered by bragging about the attack pseudonymously on chatrooms. Alas for him, he had previously used his pseudonym "mafiaboy" in posts that contained more-identifying information.

Conficker worm, April 1, 2009, apparently about creating a network of email 'bots.

Putting a dollar value on indirect attacks

This is notoriously hard. One of Mitnick's colleagues was facing damage claims from one of the Baby Bell companies in excess of $100,000, when it was pointed out during the trial that the stolen document was in fact for sale for under $25.

Mark Abene (Phiber Optik) was imprisoned for twelve months. That was rather long for the actual charge. Mitnick himself spent nearly five years in prison, 4.5 of which were pre-trial. That situation is similar to that of Terry Childs in San Francisco, now finally out of prison.

Calce, Abene & Mitnick all now work in computer security. Is this appropriate? Of course, if you believe the charges themselves were inappropriate, you might readily agree.

One theory is that gaining notoriety for an exploit is the way to get a security job. Is that appropriate?

If not, what could be done differently?

David Kernell hacked Sarah Palin's email account in 2008, at age 20 (this was the case where we earlier watched Bill O'Reilly declaim about the equivalence of physical and intellectual property). He served his 366-day sentence at the Midway Rehabilitation Center in Tennessee, and was allowed to continue at school while in jail. Was this an appropriate sentence?

As of ~2012, most computer attacks are launched via web pages, although I still get lots of emailed virus payloads such as IRSnotice.pdf.exe or russianmodel.jpg.exe (under windows, the final ".exe" is not shown by default; why does Microsoft still do this?).

Ultimately, many of these attacks come down to javascript vulnerabilities. I am a devoted NoScript user. However, there are other vulnerabilities too.

Legal tools against hackers

Once upon a time, authorities debated charging a hacker for the value of electricity used; they had no other tools. The relative lack of legal tools for prosecution of computer breakins persisted for some time.

The Computer Fraud & Abuse Act of 1986 made it illegal to access computers without authorization (or to commit fraud, or to get passwords). Robert Tappan Morris was the first person convicted under this law.

Extends CFAA, and provides that when totting up the cost of the attack, the victim may include all costs of response and recovery. Even unnecessary or irresponsible costs. Even costs they should have already implemented.
"Trespass of Chattels": maybe. This is a legal doctrine in which one party intentionally interferes with another's chattels, essentially personal property (including computers). Often actual harm need not be proven, just that the other party interfered, and that the interference was intentional and without authorization.

In 2000 e-bay won a case against Bidder's Edge where the latter used search robots to get information on e-bay auctions. The bots used negligible computation resources. The idea was for Bidder's Edge to sell information to those participating in eBay auctions. In March 2001, Bidder's Edge settled as it went out of business.

Later court cases have often required proof of actual harm, though. In 1998 [?], Ken Hamidi used the Intel email system to contact all employees regarding Intel's allegedly abusive and discriminating employment policies. Intel sued, and won at the trial and appellate court levels. The California Supreme Court reversed in 2003, ruling that use alone was not sufficient for a trespass-of-chattels claim; there had to be "actual or threatened interference".

After reviewing the decisions analyzing unauthorized electronic contact with computer systems as potential trespasses to chattels, we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor's use or possession of, or any other legally protected interest in, the personal property itself. [emphasis added]

How do you prosecute when there is no attempt to damage anything?

Part of the problem here is that trespass-of-chattels was a doctrine originally applied to intrusions, and was quickly seized on as a tool against those who were using a website in ways unanticipated by the creator (eg Bidder's Edge). Is that illegal? Should the law discourage that? Should website owners be able to dictate binding terms of use for publicly viewable pages (ie pages where a login is not required)?

International Airport Centers v Citrin

Generally the Computer Fraud & Abuse Act (CFAA) is viewed as being directed at "hackers" who break in to computer systems. However, nothing in the act requires that a network breakin be involved, and it is clear that Congress understood internal breakins to be a threat as well. The law itself dates from the era of large mainframes.

Just when is internal access a violation of the CFAA? Internal access is what Terry Childs is accused of.

In the 2006 Citrin case, the defendant deleted files from his company-provided laptop before quitting his job and going to work for himself. From http://technology.findlaw.com/articles/01033/009953.html:

Citrin ultimately decided to quit and go into business for himself, apparently in breach of his employment contract with the companies. Before returning the laptop to the companies, Citrin deleted all of the data in it, including not only the data he had collected [and had apparently never turned over to his employer -- pld], but also data that would have revealed to the companies improper conduct he had engaged in before he decided to quit. He caused this deletion using a secure-erasure program, such that it would be impossible to recover the deleted information.

His previous employer sued under the CFAA, noting that the latter contained a provision allowing suits against anyone who "intentionally causes damage without authorization to a protected computer". Citrin argued that he had authorization to use his company-provided laptop. The District Court agreed. The Seventh Circuit (which includes Illinois) reversed, however, arguing in essence that once Citrin had decided to leave the company, and was not acting on the company's behalf, his authorization ended. Or (some guesswork here), Citrin's authorization was only for work done on behalf of his employer; work done against the interests of his employer was clearly not authorized.

Note that Citrin's specific act of deleting the files was pretty clearly an act that everybody involved understood as not what his employer wanted. This is not a grey-area case in that regard. However, trade-secrecy laws might also apply, as might contract law if part of Citrin's employment contract spelled out the terms of use.

Compare this to the Terry Childs or Randal Schwartz cases, below. We don't have all the facts yet on Childs, but on a black-and-white scale these cases would seem at worst to be pale eggshell (that is, almost white). It seems very likely that Schwartz's intent was always to improve security at Intel; it seems equally likely that at least in the three modem-related charges against Childs there was absolutely no intent to undermine city security.

Once again, the court looked at Citrin's actions in broad context, rather than in narrow technological terms. However, it remains unclear whether the court properly understood the full implications. In the context of the Citrin case, the Seventh Circuit simply allowed a civil lawsuit based on the CFAA to go forward. But the CFAA also criminalizes exactly the same conduct that it allows as grounds for civil suits. Specifically, §1030 states:

(a) Whoever
(1) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains
(c) information from any protected computer [a computer " which is used in or affecting interstate or foreign commerce or communication"; ie any computer on the Internet -- pld]
(b) ... shall be punished as provided [below]
(c) (1) (A) ... imprisonment for not more than ten years [plus a fine].

I'm not sure if that's ten years total or ten years per offense.

There was no felony prosecution of Citrin, but consider the following unauthorized uses of a computer:
Should a person be subject to felony charges for any of the above?

US v Nosal

In an en banc decision handed down April 10, 2012 by the Ninth Circuit, the court ruled that someone who was authorized to access the data in question could not be charged under the CFAA simply because that access was contrary to the terms of the data owner (ie the employer). This is in more-or-less direct conflict with the Seventh Circuit's ruling in Citrin, suggesting that the Supreme Court is likely to take up this case at some point.

Nosal, like Citrin, had worked for a company (Korn/Ferry) and left to start his own business. Nosal did not take K/F data himself, but persuaded some former colleagues to send him the data. The colleagues were also charged.

Part of what is at stake is that the above phrase, "exceeds authorized access", is used in the rather general section (a)(1), but also in section (a)(4) dealing with fraud. Nosal was originally charged under §(a)(4), and other courts have ruled that fraud based on unauthorized access is indeed covered. However, the language in both sections is the same, and a general legal principle is that you should not interpret language differently simply because the context is different.

Judge Kosinski, in his decision, wrote

[1] The CFAA defines "exceeds authorized access" as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. § 1030(e)(6). This language can be read either of two ways: First, as Nosal suggests and the district court held, it could refer to someone who's authorized to access only certain data or files but accesses unauthorized data or files: what is colloquially known as "hacking." For example, assume an employee is permitted to access only product information on the company's computer but accesses customer data: He would "exceed[ ] authorized access" if he looks at the customer lists. Second, as the government proposes, the language could refer to someone who has unrestricted physical access to a computer, but is limited in the use to which he can put the information. For example, an employee may be authorized to access customer lists in order to do his job but not to send them to a competitor.

Kosinski then argued that the second interpretation is much too broad:

[W]e hold that the phrase "exceeds authorized access" in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly. The rule of lenity requires "penal laws . . . to be construed strictly."

Ultimately, Kosinski's argument would suggest that if a site or employer did not want you to have access to some data, they should take measures to be sure you cannot access it routinely.

See also Volokh's blog.

US v Van Buren

Georgia police officer Van Buren accessed a state police database, and sold information he obtained there. In 2021 the Supreme Court decided [https://www.supremecourt.gov/opinions/20pdf/19-783_k53l.pdf] that his use did not "exceed authorized access", because he had authorized access to the system. Justice Barrett wrote:

This provision covers those who obtain information  from  particular  areas  in  the  computer—such  as files, folders, or databases—to which their computer access does not extend.  It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them

That would certainly seem to suggest Citrin's actions would be legal in the future. It also would appear to suggest that terms-of-service violations are not criminal.

However, the case does not entirely answer when someone does exceed authorized access. Is all access via the standard user interface of necessity "authorized"? What if someone uses the standard API for accessing the system, but in a way not anticipated by the owner, as in the Auernheimer case below?

Craigslist v 3Taps, Craigslist v PadMapper

This is another CFAA case that in some ways resembles E-bay v Bidders Edge. 3Taps was a company that scraped Craigslist data, and also data from other sites, to create specialized search engines for for-sale content. PadMapper collected Craigslist housing ads and organized them visually on a map.

Craigslist sent both of them "cease-and-desist" letters (that is, letters asking them to stop using craigslist.com) and blocked some IP addresses used by each company. The cease-and-desist letters were not based on any particular law (unlike, for example, DMCA takedown notices), but were simply formal requests from Craigslist to stop using their website.

3Taps continued to access craigslist.com through proxies; PadMapper started obtaining Craigslist data from 3Taps. 

The central ruling of the lawsuit, reached in 2013, was that the letter and blocking together was sufficient to establish that 3Taps' and PadMapper's continued use of craigslist.com was unauthorized under the CFAA, and that Craigslist could sue.

Note that no login, account creation or terms-of-service agreement is necessary to access Cragslist's data. In effect, 3Taps and PadMapper were being told that this publicly available data was available to everyone except them; they were singled out by the cease-and-desist letters.

Having lost this crucial ruling, 3Taps settled the case, agreeing to pay $1,000,000 and to stop using craigslist.com data. Part of the agreement was that the money would be turned over to the EFF over ten years.

3Taps had argued that, because craigslist.com was a public website, it had authorization to access it as a member of the public. The court disagreed with this, stating that the cease-and-desist letters had the effect of revoking 3Taps' and PadMapper's authorizations.

The cease-and-desist letters were sent in June 2012. In July 2012, Craiglist changes their terms-of-service to disallow 3Taps' and PadMapper's actions; initially, Craigslist claimed copyright on all user postings (and thus became entitled to file copyright-infringement lawsuits against anyone who copied the postings).

Faced with copyright-infringement litigation, 3Taps and PadMapper were forced to settle.

The case raises a tricky question of just who is allowed to access "public" data. There are also questions as to whether the case here amounted to a restriction on the use of public data, rather than just the collection.

If you post publicly on Twitter, should Twitter be able to claim copyright? Should you have any privacy objections if someone else re-publishes the Twitter data?

hiQ v LinkedIn

hiQ labs scraped public user profiles from LinkedIn. LinkedIn objected, and sent a cease-and-desist letter. From LinkedIn's perspective, at that point hiQ's access became unauthorized, and thus a violation of the CFAA.

The district court found in hiQ's favor, and granted a preliminary injunction. LinkedIn appealed that injunction to the Ninth Circuit, which upheld the injunction in September 2019.

Technically, the case has not been tried on the merits, even at the district court level. But, realistically, it may be time for LinkedIn to give up.

One approach is for LinkedIn to hide all user profiles until the viewer has logged in to LinkedIn and thus presumptively accepted the LinkedIn terms of service. Of course, this may not be popular with users who want their LinkedIn profiles to be highly visible.

In June 2021, following the Van Buren decision, the Supreme Court vacated and remanded the Ninth Circuit's decision for further review under the Van Buren standard. In one sense, hiQ, certainly was accessing the data using the standard user interface, though there were terms-of-service issues. In another sense, hiQ was definitely accessing the data in a way unanticipated by LinkedIn.

Attacks Involving Money

Modern phishing attacks (also DNS attacks)

Stealing credit-card numbers from stores. (Note: stores are not supposed to retain these, except in special circumstances. However, many do. And Target did not; their data was stolen "on the fly")

Boeing attack, Baase 4e, p 235: how much should Boeing pay to make sure no files were changed? Is there a real safety issue here?

TJX attack: Baase 4e p 54 and p 243

This was the biggest credit-card attack, until it was dwarfed by the Target attack in 2013. (Though by the time of the Target attack, the credit-card companies had become much more adept at detecting fraud patterns and thus limiting the number of stolen cards that could actually be used.)

The break-in was discovered in December 2006, but may have gone back to 2005.

40 million credit-card numbers were stolen, and 400,000 SSNs, and a large number of drivers-license numbers.

Hackers apparently cracked the obsolete WEP encryption on wi-fi networks to get in to the company's headquarters network, using a "cantenna" from outside the building. Once in, they accessed and downloaded files. There are some reports that they eavesdropped on data streaming in from stores, but it seems likely that direct downloads of files was also involved.

Six suspects were eventually arrested. I believe they have all now been convicted; there's more information in the privacyrights.org page below (which also pegs the cost to TJX at $500-1,000 million). The attacks were apparently masterminded by Albert Gonzalez, one of the six: http://www.cio.com/article/500114/Alleged_Kingpin_of_Data_Heists_Was_a_Computer_Addict_Lawyer_Says. Gonzalez was sentenced to 20 years, though part of that was for other crimes.

For a case at CardSystems Solutions, see http://www.schneier.com/blog/archives/2005/06/cardsystems_exp.html. Here the leak was not due to wi-fi problems, but lack of compliance with standards was apparently involved. Schneier does a good job explaining the purely contractual security requirements involved, and potential outcomes. Schneier also points out

Every credit card company is terrified that people will reduce their credit card usage. They're worried that all of this press about stolen personal data, as well as actual identity theft and other types of credit card fraud, will scare shoppers off the Internet. They're worried about how their brands are perceived by the public.

The TJX and CardSystems attacks were intentional, not just data gone missing.

When attacks ARE about money, often the direct dollar value is huge. And tracing what happened can be difficult. An entire bank account may be gone. Thousands of dollars may be charged against EVERY stolen credit-card number.

Here's a summary of several incidents: http://www.privacyrights.org/ar/ChronDataBreaches.htm#CP.

TJX attack and PCI DSS

An emerging standard is Payment Card Industry Data Security Standard (PCI DSS), supported by MasterCard, Visa, Discover, American Express, and others. See http://www.pcicomplianceguide.org/pcifaqs.php for some particulars; a more official site is https://www.pcisecuritystandards.org. Note that PCI DSS is not a law, but is "private regulation". Once upon a time, the most effective regulators of steam-powered ships were insurance companies [reference?]. This is similar, but MasterCard and Visa are not quite the same as insurers. From the FAQ above:

Q: What are the penalties for noncompliance?
A: The payment brands may, at their discretion, fine an acquiring bank $5,000 to $100,000 per month for PCI compliance violations. The banks will most likely pass this fine on downstream till it eventually hits the merchant. Furthermore, the bank will also most likely either terminate your relationship or increase transaction fees.  Penalties are not openly discussed nor widely publicized, but they can catastrophic to a small business. 

It is important to be familiar with your merchant account agreement, which should outline your exposure.

If you are a store, you can refuse to pay the fine. But then you will lose the ability to accept credit cards. This is extremely bad!

Visa's CISP program is described at http://www.visa.com/cisp.

The PCI standards do allow merchants to store the name and account-number data. However, this is strongly discouraged (although it is becoming more acceptable). Sites that keep this information are required by PCI to have it encrypted. CardSystems was keeping this data because they were having a higher-than-expected rate of problems with transactions, and they were trying to figure out why.

To some extent, PCI DSS compliance is an example of how ethical behavior is in your own long-term best interest.


Although Target has yet to reveal many details about the theft of 70 million credit-card numbers, apparently much of the attack was carried out remotely.

It appears that malware was installed on point-of-sale terminals, which basically run versions of Windows. Target apparently hasn't even admitted this much, but those who made online purchases were not affected, and the POS terminal appears to be the only difference. However, the attackers also obtained name/address/email information, which would have had to come from somewhere else internally.

Hackers got in to the Target network, possibly through an HVAC vendor, Fazio Mechanical. Fazio was given credentials on Target's internal network for " electronic billing, contract submission and project management" (http://krebsonsecurity.com/tag/target-data-breach/ and http://krebsonsecurity.com/2014/02/target-hackers-broke-in-via-hvac-company/)

Target apparently stored the CVV codes from the cards. This is a big PCI-DSS no-no.

According to https://www.schneier.com/blog/archives/2014/03/details_of_the_.html, Target had alert systems (from FireEye) sound warnings as early as November 30, 2013. But nobody noticed; alert systems are notorious for false positives. The problem was not announced until December 19.

Here's another amazing article on this by Brian Krebs, in which he identifies "Rescator" (rescator.so is one of the sites selling stolen Target cards) as one Andrew Hodirevski: http://krebsonsecurity.com/2013/12/whos-selling-credit-cards-from-target/.

Identity Theft

Baase 4e §5.3. What is it? What can be done?


The most common form of identity theft is someone posing as you in order to borrow money in your name, by obtaining a loan, checking account, or credit card. When someone poses as you to empty your bank account, that's generally known as "just plain theft".

Note that most "official" explanations of identity theft describe it as something that is stolen from you; that is, something bad that has happened to you. In fact, it is probably more accurate to describe "identity theft" as a validation error made by banks and other lenders; that is, as a lender problem.

This is a good example of nontechnical people framing the discourse to make it look like your identity was stolen from you, and that you are the victim, rather than the banks for making loans without appropriate checks. And note that banks make loans without requiring a personal appearance by the borrower (which would give the bank a chance to check the drivers-license picture, if nothing else) because that way they can make more loans and thus be more profitable.

Hacking and probing

Is it ok to be "testing their security"?
What if it's a government site?

Should you be allowed to run a security scanner against other sites?

What if the security in question is APPALLINGLY BAD?

What if you have some relationship to the other host?
Baase, 3e p 270:
"The Defense Information Systems Agency estimated that there were 500,000 hacker attacks on Defense Department networks in 1996, that 65% of them were successful, and that the Dept detected fewer than 1%". But 1996 was a long long time ago.

Do we as citizens have an obligation to hack into our government's computers, to help demonstrate how insecure they are? Well, no. But at some level there is an obligation to expose collective "security through cluelessness" (bad protocols that most people don't realize are bad).

Actually, the US government has gotten a lot tighter in the past decade, and somewhere I have a list of IP addresses which, if you portscan, will get your ISP contacted and may get some US marshals invited to your house.

What about hacking into Loyola's computers? Are we obligated to do that? What about Loyola's wireless network?

Ok, once upon a time there might have been some notion of an obligation to inform "friendly" sites that there were problems with their security, but unsolicited probing is pretty much a bad idea today.

What is our obligation to prevent intrusions at other sites that are not likely to be directly harmful to us?


In 2006, Kevin Mitnick's sites were defaced by a group. There is some irony there.

Other Baase cases:

Maybe the most famous example right now is the Anonymous group. See the wikipedia list at http://en.wikipedia.org/wiki/Timeline_of_events_involving_Anonymous. Most of the attacks have some connection with some form of authoritarian governmental crackdown, though some of the crackdowns are "only" against copyright infringement. Occasionally an attack is to harass a particularly conservative group, as seen from a relatively juvenile perspective (see the entry in the above wikipedia timeline for "No Cussing Club").

Most of the attacks are based on distributed denial-of-sevice methods.

More serious entries:

Operations more focused on censorship might include

Can these sorts of activities be justified? What about hacking Sony over rights to use the Playstation 3 as users see fit?

Zero-Day Exploits

Should they be tolerated? Encouraged?

  1. Sometimes vendors ignore exploit reports without the publicity.
  2. Sometimes users really need a script to tell them if they are vulnerable; such a script is typically tantamount to an exploit
  3. Sometimes announcing a flaw gives crackers all they need to exploit it; withholding details merely gives false security.

Consensus seems to be that zero-day exploits are a bad idea, that one has some responsibility to let vendors know about an exploit so a patch can be developed. Though there is also a fairly significant consensus (perhaps not quite as universal) that if the vendor doesn't respond you have to do something public.

Microsoft's Patch Tuesday has long been followed by Exploit Wednesday.

Cisco 2005 case involving Michael Lynn: see http://www.schneier.com/blog/archives/2005/07/cisco_harasses.html

Cisco threatened legal action to stop the [July 2005 Black Hat] conference's organizers from allowing a 24-year-old researcher for a rival tech firm to discuss how he says hackers could seize control of Cisco's Internet routers, which dominate the market.

Cisco called the disclosure "premature" and claimed Lynn had "illegally obtained" the information by reverse-engineering. Lynn acknowledged that he had disassembled some Cisco code, based on an announced Cisco patch, but found an additional problem that could allow an outsider to take over the router. Note that a patch had already been released by Cisco, but many customers had not installed it because Cisco had not indicated it was important.

Lynn allegedly demoed his findings to Cisco in June 2005. Initially there had been talk about a joint security presentation, but these broke down. Or never started; this is not clear. The Black Hat conference was in late July 2005.

Lynn pretty much did give his presentation at Black Hat 2005, somewhat unofficially.

The Cisco lawsuit apparently ended with Lynn agreeing to this day not to discuss the vulnerability further. An injunction against such discussion was apparently filed in Federal District Court.

Cisco has never offered an explanation for why they were so upset. It is safe to assume, however, that the threat was serious, and that someone within Cisco dropped the ball earlier. Their official objection was that Lynn violated the EULA by decompiling the code; generally speaking, as an objection this makes no sense.

At the 2006 Black Hat conference, Cisco was a sponsor. Lynn was apparently invited to the party the company sponsored, although even today his relationship with Cisco is frosty.

Schneier also has a 2001 essay on full disclosure (with advance notice to the vendor) at http://www.schneier.com/crypto-gram-0111.html.


In 2008, three MIT students, Russell Ryan, Zack Anderson, and Alessandro Chiesa, developed Anatomy of a Subway Hack (see charlie_defcon.pdf (especially pages 5, 8, 11/12, 24ff, 41, 49, and 51)). One of the methods of attack was to take advantage of a vulnerability in the Mifare Classic RFID chip used by the MBTA's "Charlie Card". They intended to present their findings at the 2008 Defcon.

US District Judge George O'Toole granted a 10-day preliminary restraining order against the group, but then let it expire without granting the five-month injunction requested by the MBTA. The MBTA's legal argument was that the paper violated the Computer Fraud and Abuse Act, but the problem is that the CFAA normally applies to worms and viruses themselves, and not to publishing information about them.

Much of the information in the report is highly embarrassing to the MBTA, such as the photographs of gates left unlocked. Should they be allowed to block that?

The MIT group apparently asked their professor, Ron Rivest (the R of RSA), to give the MBTA an advance heads-up, but it apparently did not happen immediately as Rivest was traveling at the time, and in any event would have amounted to just a week or so. The MBTA was eventually informed, and quickly pushed for an FBI investigation.

The MIT group's RFID hack was based on the work of Gans, Hoepman, and Garcia in finding flaws in the Mifare Classic chipset; see mifare-classic.pdf. This is a serious academic paper, as you can tell by the font. Their work is based on earlier work by Nohl and Plötz, which they cite. On page 4 of my copy the authors state

We would like to stress that we notified NXP of our findings before publishing our results. Moreover, we gave them the opportunity to discuss with us how to publish our results without damaging their (and their customers) immediate interests. They did not take advantage of this offer.

Note also that the attack is somewhat theoretical, but it does allow them to eavesdrop on the encrypted card-to-reader communications, and to read all of data-block 0 stored on the card (and other blocks, if the data is partially known).

Nohl has said, "It has been known for years that magnetic stripe cards can easily be tampered with and MBTA should not have relied on the obscurity of their data-format as a security measure".

(The CTA Chicago Card had many of the same vulnerabilities; this is presumably one reason for the migration to the Ventra card.)

Buenos Aires and Voting

The city of Buenos Aires uses voting-machine software called "Vot.ar" from Magic Software Argentina (MSA). Local security researcher Joaquín Sorianello discovered that the "private" TLS certificates were in fact public. A different group discovered that a smartphone with NFC capability could add votes to the RFID chip embedded in the paper ballot (this would be obvious if the paper and the RFID chip were ever compared, but often only the latter is counted).

After Sorianello reported the problem to MSA, local judge María Luisa Escrich
More at https://www.eff.org/deeplinks/2015/07/buenos-aires-censors-and-raids-technologists-fixing-its-flawed-e-voting-system.

Hackers Remotely Kill Jeep Cherokee

Security researchers Charlie Miller and Chris Valasek figured out how to break into a Jeep Cherokee's engine-control (CAN) network via a cellphone connection; an intermediate step was to rewrite the firmware of the entertainment-system head unit. This attack allowed them to:

As of this writing, Miller and Valasek were not able to take over the steering, unless the car was in reverse.

Miller and Valasek presented their techniques at Black Hat in August 2015. Months before, they notified Chrysler of the problem, which then had time to prepare a fix.

Chrysler stated that they "appreciated" the work. They also said, however,

Under no circumstances does [Fiat Chrysler Automobiles] condone or believe it's appropriate to disclose 'how-to information' that would potentially encourage, or help enable hackers to gain unauthorized and unlawful access to vehicle systems.... We appreciate the contributions of cybersecurity advocates to augment the industry's understanding of potential vulnerabilities. However, we caution advocates that in the pursuit of improved public safety they not, in fact, compromise public safety.

The problem here is that, without the potential for publicity, it is unlikely Miller and Valasek would have bothered. Academics and independent security researchers are motivated by publication. If this is discouraged, security will be left to professional security firms, who to date have not shown the same willingness to innovate.

More at http://www.wired.com/2015/07/hackers-remotely-kill-jeep-highway/.

Dejan Ornig

Ornig was a student in Slovenia who discovered that police communications that were supposed to be encrypted often were not, due to software misconfiguration. He informed the police, but nothing happened. Eventually he published his results, and was charged. He received a 15-month suspended sentence, and had to promise not to investigate police misconfiguration any more. See http://news.softpedia.com/news/student-who-found-flaws-in-police-communication-protocol-gets-prison-sentence-504333.shtml.

Justin Shafer

An FBI swat team raided Justin Shafer's Texas home on May 24, 2016. Shafer had just recently exposed a software vulnerability at Harry Schein Dental Software (www.dailydot.com/politics/dental-records-hack-schein-dentrix-g5-settlement/), but the raid apparently was the result of Shafer's exposure of an earlier vulnerability in the Eaglesoft dental software system of Patterson Dental. Shafer had discovered that Patterson Dental kept protected patient information on an anonymous FTP server (that is, an FTP server that does not require a password to access the stored documents). Patterson Dental claimed to the FBI that Shafer's access of this FTP server was "unauthorized" and hence a felony under the CFAA. Shafer had earlier notified Patterson Dental, and had not published his results until the data was secured, or at least no longer accessible without a password. More at www.dailydot.com/politics/justin-shafer-fbi-raid/.

A year later, Shafer was arrested, for allegedly "stalking" an FBI agent. This became five felony counts, but all were eventually dropped. See databreaches.net/prosecution-drops-five-felony-charges-against-justin-shafer-accepts-plea-to-one-misdemeanor-charge.

Hacking Summary

What legal responses are appropriate?

Should we criminalize having hacking tools?
What about magnetic-stripe readers? RFID readers?
What about Pringles cans (for use as cantennas)?
What about DVD players that bypass the region code?
What about C compilers?
What about jailbroken phones or other "sealed" devices?

Note that it is in fact already de facto illegal (in the sense that police will arrest you if they find out, and you belong to a Suspicious Group) to possess certain things that can have illegal uses, such as automotive dent pullers (used to pull cylinders out of locks) and tools that look like they might be lock picks.

Felony prosecutions:

These may become very frequent if anti-CISPA fears pan out.

Kutztown 13
High-school students in Kutztown Pennsylvania were issued 600 apple ibooks in 2004
The administrative password was part of school address, taped to the back! The password was changed, but the new one was cracked too. Some of the students obtained administrative privileges and:

The students were accused of monitoring teachers or staff, but that seems unlikely.

The school's security model was hopelessly flawed. Who is responsible for that?
The school simply did not have the resources to proceed properly.
The offenders were warned repeatedly. But why didn't the schools simply take the iBooks away? Why were felony charges pursued? The charge was for felony computer trespass.

The school argued that the charges were filed because the students signed an "acceptable use" policy. But why should that make any difference in whether felony charges were pursued? The students were, after all, minors.
cutusabreak.org: now gone
Wikipedia: Kutztown_Area_high_School

Randal Schwartz

Oregon made it a felony to do anything unauthorized, even if harm was not shown (or did not exist). Here is the text of part of the law; note the lack of mention of harm:

(4) Any person who knowingly and without authorization uses, accesses or attempts to access any computer, computer system, computer network, or any computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.

Also, taking a file without authorization was declared to be theft. The problem is that, in the real world, authorization is often rather indirect. If you're doing something for the benefit of your employer, and your employer does not object, would that always be considered "authorized"?

The biggest issue with the Schwartz case (and he was convicted, not just charged) is that it seems likely Schwartz had no intent to cause any harm. In closing arguments the prosecutor focused on the fact that Schwartz knew he wasn't supposed to be doing what he did, and did it anyway. Never mind that it might have been done for Intel's benefit. And never mind that no actual harm was caused.

Schwartz was a contract employee at Intel. He faced three counts:

  1. Installation of an email backdoor at Intel (he thought he had permission)
  2. Taking the password file
  3. Taking individual passwords

Here are the official versions of the latter two charges:

Schwartz had been responsible for SSD system administration and security, and had monitored the system for weak passwords as part of this position by using the crack password-cracking program. In 1992 Schwartz had a conflict with the SSD manager (Poelitz), and agreed to move on to another position at Intel. However, he continued to monitor the SSD passwords, as it was clear to him that the new system administrator was not doing so (it was particularly clear after the fact: 48 out of 600 passwords were easily broken). Schwartz did not need any elevated privileges to monitor the passwords. (Supposedly Schwartz's access to the SSD network was supposed to have been disabled, but it was not, and there was no reason for Schwartz to believe that continued access was a problem.)

Schwartz's password-cracking actions have been described by Wikipedia as "penetration testing", but this is a bit of a misnomer as he didn't penetrate the systems involved at all. When weak passwords were discovered, he would eventually notify the user or the applicable system administrator, though sometimes there was delay. There was never, however, any evidence that Schwartz ever misused any of the passwords, or ever intended to. It seems clear, both at the time and in retrospect, that Schwartz not databreaches.net/prosecution-drops-five-felony-charges-against-justin-shafer-accepts-plea-to-one-misdemeanor-chargeonly never had any intent to cause any harm at Intel, but that in fact his intent had been to prevent harm at Intel, by continuing to monitor for weak passwords. This turned out not to matter.

As for the email backdoor in the first charge, here are some comments from Jeffrey Kegler's comments at lightlink.com/spacenka/fors/intro.html.

Randal's original reason for writing a gateway was a request from Dave Riss's staff at Intel, who needed to access their data and E-mail while at Carnegie Mellon. Riss approved the result and his group used it for a time. Later, Randal was traveling extensively and performing duties at Intel which required the same kind of access, as Intel knew. Randal created a more secure gateway for this purpose. That Intel knew and approved of Randal's use of gateway programs for his own duties is shown by the evidence.

When two Intel employees were troubled by the security of the gateway they asked Randal not to shut it down, but to change it to run more securely. They checked Randal's changes and passed off on them. This shows a proper concern about the security implications of gateways, but it also shows that it was generally recognized at Intel that Randal was allowed to and did run gateways.

In other words, this email gateway wasn't Randal's idea, and it had been approved by an Intel security team (after the fact). The email gateway charge was the only "plausible" count of the three. Technically, Intel did have a policy against such gateways, though in light of the quote above Schwartz had reason to believe his gateway was acceptable.

Intel strongly pushed for his prosecution. There is no evidence, however, that before Schwartz's arrest Intel was in any way dissatisfied with his job performance. Intel's Mark Morrissey insisted that "Randal did not have permission for this activity," which was doubtless true narrowly construed, but Schwartz had file-access permission to read the encrypted passwords and general Intel permission to run work-related programs. In Morrissey's report, it appears that Intel security people "found" evidence of Schwartz's cracking, but Schwartz himself had never made any attempt to conceal it.

During Schwartz's trial, it turned out that Intel VP Ed Masi had also violated the Oregon Computer Law, regularly. He was not prosecuted.

At no point was any evidence presented of Schwartz's "criminal intent".

The appeals court (updated link to the opinion) held that although "authorization" wasn't spelled out in the law, Schwartz did things without authorization as narrowly interpreted. The appellate court also upheld the trial court's interpretation of "theft": taking anything without permission, even if the thing is essentially useless or if the taking is implicitly authorized.

The appellate court also seemed to believe that Schwartz might have been looking for flaws to take credit for them, and that such personal aggrandizement was inappropriate:

Apparently, defendant believed that, if he could show that SSD's security had gone downhill since he had left, he could reestablish the respect he had lost when he left SSD.

But employees all the time look for problems at work and try to fix them, hoping to receive workplace recognition. In many other contexts, employees who make the extra effort to "look for flaws" are considered exemplary.

See w2.eff.org/legal/cases/Intel_v_Schwartz/schwartz_case.intro.

Schwartz' conviction was expunged in 2007. Intel has never apologized.

Schwartz and Kutztown 13 cases have in common the idea that sometimes the law makes rather mundane things into felonies. For Schwartz, it is very clear that he had no "criminal" intent in the usual sense, although he did "intend" to do the actions he was charged with.

What do you do if you are a system administrator, or a database administrator, and your nontechnical supervisor wants the root password? And you don't think they are technically competent to have it? The case of Terry Childs addresses this.

Terry Childs

The Schwartz, Childs and Amero cases have in common the idea that behavior that some people might find well within the range of acceptable, while others might find seriously criminal. These aren't like banking-industry cases; none of the defendants was trying to push the envelope in terms of what they could "get away with". All three felt they were "just doing their jobs".

Julie Amero case

On October 19, 2004, Amero was a substitute teacher (7th grade) at Kelly Middle School, Connecticut. At some point early in the school day, the teachers' desk computer started displaying an unstoppable stream of pornographic web pages. Clicking the close button on one simply brought up others. This is by now a well-known javascript vulnerability.

Amero had been explicitly told never to disturb anything in the classroom, and in particular not to turn the computer off. So she didn't. She had apparently no idea how to turn off just the monitor. She spent much of her day at her desk, trying to fix the problem by closing windows. She did not attempt to tape something over the monitor, or cover the monitor with something, or turn the monitor face down.

Someone apparently decided that she was actively surfing porn. Within two days, she was told she couldn't substitute at that school; she was arrested shortly thereafter.

Amero had complained to other teachers later that day. Why she didn't demand that something be done during the lunch hour is not clear. Why she didn't tape something over the screen is not clear. Amero claimed that two kids used the computer before the start of class, at a hairstyles site, but others claimed that could not have happened because it was not allowed.

It later turned out that the school's content-filter subscription had lapsed, and so the filter was out of date. Also, the computer had several viruses or "spyware" programs installed. In retrospect, some sort of javascript attack seems to have been the proximate cause.

In January 2007, she was convicted of impairing the morals of a child. This was despite computer-forensic evidence that a hairstyles site triggered a scripting attack that led to the Russian porn sites.

The prosecutor's closing arguments hinged on the idea that some of the links in question had "turned red", thus "proving" that they had been clicked on (ie deliberately by Amero) rather than having been activated via scripting. This is false at several levels: link colors for followed links can be any color at the discretion of the page, and if a page has been opened via a script, links to it are indistinguishable from links that were clicked on.

In June 2007 Amero was granted a new trial, and in November 2008 she pleaded guilty to a misdemeanor disorderly conduct charge and forfeited her teaching credentials.

Amero's failure to regard the computer problem as an emergency probably contributed to her situation.

I discussed her case with a School of Education class once, and the participants were unanimous in declaring that Amero was incredibly dense, at best, and should not be in the classroom.

Jeremy Hammond

Chicagoan Jeremy Hammond was sentenced in November 2013 to ten years in federal prison for a break-in at Stratfor, an intelligence-gathering corporation, that involved the taking of a large cache of emails describing the international and domestic spying operations carried out by Stratfor.

Hammond has described his actions here as "civil disobedience". Hammond's record is pretty clearly about political protest.

He pled guilty to a single CFAA count, as part of a plea bargain.

Some had hoped Hammond would be sentenced to the 2-3 years of time already served. However, Hammond had a previous conviction in 2006 for a hack into a pro-Iraq-war group known as Protest Warrior, during which he downloaded their entire database. It so happened that this database included 5000 credit-card numbers; Hammond used none of them. The prosecutor, however, argued that Hammond "stole credit card numbers", and Hammond was sentenced to two years in jail.

Andrew "Weev" Auernheimer

Andrew Auernheimer was sentenced in March 2013 to 41 months in prison for downloading a list of email addresses from AT&T that were associated with iPad accounts. Some of the email addresses were then published.

Here are some details from Orin Kerr, at http://www.volokh.com/2013/03/21/united-states-v-auernheimer-and-why-i-am-representing-auernheimer-pro-bono-on-appeal-before-the-third-circuit/. Kerr has agreed to defend Auernheimer pro bono.

The issue was with a particular iPad settings option (Settings -> Cellular Data -> View Account). When opened, this settings applet made an http GET request to the AT&T server, attaching the iPad's ICC-ID, a kind of "serial" number associated with the iPad's SIM card. AT&T would then return user information corresponding to that ICC-ID, as obtained at the time the iPad was registered. The settings applet then displayed this information, along with an empty password field; users were expected to type the password to log in. The settings applet did not resemble a browser page, other than by making an http request.  Cookies were not used.

The underlying http GET request could be sent by an ordinary browser, as well, and the AT&T server would not know the difference. An ordinary browser would, however, not be configured to automatically look up the device ICC-ID; that would have to be entered manually as one of the option fields in the GET request.

Auernheimer and his colleague Daniel Spitler figured out that the applet's queries were ordinary GET requests, and that if you tried a random ICC-ID number, and it happened to match someone's real serial number, AT&T would serve up that someone's real email address. The actual ICC-ID is too long for this to work (22 digits), but most of the fields would be known; only the "individual account identification number" would need to be guessed, and these were apparently allocated sequentially. (There was also a check digit.)

Further information is at gizmodo.com/the-little-feature-that-led-to-at-ts-ipad-security-brea-5559686.

In Kerr's words:

AT&T decided to configure their webservers to "pre load" those [iPad-user] e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad. The basic idea was to make it easier for users to log in to AT&T's website: The user's e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user's e-mail address. [Codefendant Daniel] Spitler realized this, and he wrote a script to visit AT&T's website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses : around 114,000 different addresses : that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.

This appears to be a massive mistake by ATT. Who should be punished?

When Kerr writes that "the browser would automatically visit a specific URL associated with its own ID number", this was more accurately the settings applet, acting as a browser-based application.

AT&T's mechanism was quite different from the common "preloaded login id"; the latter is usually supplied by the client side, not the server. The right way to do this would have been for the applet to record the user-provided email (and password) the first time the user logged in, and then offered the user the opportunity to reuse it on subsequent logins.

Auernheimer has argued that it was AT&T who "released" these email addresses. Did they?

Auernheimer's defense team argued that all he did was "walk through an open door".

The federal government argued that Auernheimer was motivated by profit, because he was a computer security consultant and therefore stood to benefit financially from any increase in his reputation.

The feds have also argued that, because Auernheimer is a "jerk", extraordinary sentencing is warranted. Some examples of Weev's alleged jerkiness can be seen at http://grahamcluley.com/2013/07/eff-ipad-hacker/; here is one exchange with a compatriot "Nstyr":

Nstyr:    you DID call tech support right?
Weev:    totally but not really
Nstyr:    lol
Weev:    i dont f****n care i hope they sue me     

Weev finally got a break; he was released April 11, 2014, after serving almost 13 months of his 41-month sentence.

But not because the court ruled that the CFAA was misapplied. The Third Circuit ordered his release because he was tried in New Jersey, a thousand miles from his home in Arkansas (and not near the allegedly hacked AT&T servers, either; those were in Texas and Georgia).

If the feds were to seek a new trial in an appropriate jurisdiction, Weev might be able to raise the no-double-jeopardy rule. Though he has stated he would not, in order to force a trial on the merits of the CFAA itself.

But a week later the feds formally dropped the case; Weev will not face a new trial.

Did Weev "hack" AT&T, or did AT&T make a mistake?

How is Weev's "exploit" different from a buffer-overflow exploit? How is it similar?

Even RTM's sendmail "wiz" bug was supposed to require a password. It's just that a configuration-loading problem meant that an empty password would often work.

Did Weev attempt to bypass any access-control measures? Does it matter?

Weev has stated that he wants to start a new company looking for software problems on Wall Street. When the company finds a software flaw, they will announce it publicly, but first will short-sell that company's stock (that is, they will borrow shares and sell them). When the company's stock falls on the news, they will clean up.

The company is to be named TRO LLC.

Well before the AT&T hack, Weev doxxed Kathy Sierra. Sierra's article for Wired about this is here. Weev's justification is here.

Matthew Keys

Matthew Keys was a reporter at the Tribune-owned KTXL in Sacramento. He was fired, but his system passwords were not disabled. He turned them over to Anonymous with the instructions to "go f--k some s--t up". Anonymous changed a few stories to clearly humorous versions. Keys himself had nothing to do with any of it.

A slightly complicating issue is that Anonymous apparently obtained a higher-privilege password. Keys has said he did not supply this.

Keys was convicted in 2015, and sentenced in April 2016 to two years in prison: http://motherboard.vice.com/read/former-reuters-journalist-matthew-keys-sentenced-to-two-years-for-hacking.

Elect Chippy 1337 in 201x!


Summary of Crime

Sometimes there are profound misunderstandings as to what constitutes a "crime". Is there any objective standard when it comes to hacking? Is acquiring information that you were nominally "not supposed to have" a crime?

Once upon a time, the doctrine of mens rea was crucial: to be convicted of a crime, the prosecutor had to prove criminal intent. Now, some feel many criminal prosecutions are over technicalities. Randal Schwartz might have the best case here. But Aaron Schwarz's "criminal intent" is pretty mysterious too; JSTOR simply did not include file-download limits for internal MIT connections.

As a non-cyber example of (the lack of) mens rea, consider the prosecution of Terry Dehko and daughter Sandy Thomas, who ran a grocery store in Michigan. The feds charged them with money-laundering by "structuring" their cash deposits to be just under the $10,000 reporting threshold.

Never mind that their insurance only covered cash losses less than $10,000. There was zero evidence of any intention to deceive anyone.

The feds eventually (2013) backed down, and agreed to dismiss claims.

Computers and Ordinary Criminals

What if you committed an ordinary crime, rather than a computer crime? There can still be computer-related problems.

First, many parole decisions are now made by computers, using opaque machine-learning algorithms. Without access to the training data, the fundamental fairness of the program simply cannot be assessed. And you don't get access to the training data, because it is "proprietary".

Second, there are many software packages used at criminal trials that also use opaque algorithms.

See nytimes.com/2017/06/13/opinion/how-computers-are-harming-criminal-justice.html.

Jurisdiction online

Jurisdictional issues apply to both criminal and civil law. Oddly, criminal law is more ambiguous; we databreaches.net/prosecution-drops-five-felony-charges-against-justin-shafer-accepts-plea-to-one-misdemeanor-chargewill start with civil law. For online shopping, one of the first questions is where did the sale take place? Here are some legal theories that have been applied (eg in the LICRA/Yahoo case):

The following are the traditional three rules for a US court deciding it has "personal jurisdiction" in a lawsuit:

  1. Purposeful availment: did defendant receive any benefit from the laws of the jurisdiction? If you're in South Dakota and you sell to someone in California, the laws of California would protect you if the buyer tried to cheat you. Generally, this is held to be the case even if you require payment upfront in all cases. The doctrine of purposeful availment means that, in exchange here for the benefits to you of California's laws, you submit to California's jurisdiction.
  2. Where the act was done.
  3. Whether the defendant has a reasonable expectation of being subject to that jurisdiction.

Jurisdiction and criminal cases

The 6th amendment to the constitution requires that

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed

But what state and district are involved if you do something allegedly illegal online?

Venue is extremely important if "community standards" are at stake. Even if they are not, an inconvenient venue can be chosen by prosecutors to harass you or make your defense more expensive; alternatively, a venue can be selected where longer sentences are handed down or juries are less tolerant of social differences.

If you are selling something illegal, the feds may prosecute you in any state in which the material could be purchased. The Reagan administration did just that when attempting to crack down on pornography in the 1980's, often filing parallel lawsuits all over the country.

However, if you are just a buyer, the legal principle is still muddled. Just where were you in cyberspace when you were sitting in your living room buying tax-planning software? Delaware? California?

See Baase, §5.5.2.

For hacking, it in theory may matter where you were when you launched the attack, but as most such acts are prosecuted under Federal law (eg the CFAA) this does not matter quite so much as one might think.

International crime

Remember the case of Yahoo selling Nazi memorabilia in California, and being convicted of that by a French court?

Should Onel de Guzman, the Phillipine national who allegedly wrote the ILOVEYOU virus, be able to vacation in the US? Or should the US arrest him if they ever have the chance?

Should the US have arrested Dmitry Sklyarov of the Russian firm Elcomsoft because Elcomsoft sold an ebook-DRM-removal program in Russia? (Note the US eventually agreed the answer was "no", and dropped the case.)

In 2006 the US signed the so-called "cybercrime treaty", to encourage international cooperation in prosecuting computer crime. However, in an important area the treaty completely lacked the usual "dual-criminality" provision, that the action in question must be a crime in both nations for the treaty to apply. The consequence is that US ISPs may be required to assist in foreign-government investigations of events that are not illegal under US law, even when the events occurred within the US. Foreign governments may ask for electronic seizures and searches (eg of email records), and ISPs must cooperate promptly or face charges.

The treaty also not only permits but requires the FBI to engage in warrantless wiretapping of Americans if a foreign government claims that the wiretap is necessary for a cybercrime investigation. It is unclear if this has ever actually been done, however.

In Baase §5.5.3, she speculates that the US may have agreed to this no-dual-criminality wording in order to be able to extend the reach of its own laws overseas.

There are often other loopholes under which foreign governments may turn down extradition requests.

There is some speculation that China refused to extradite NSA leaker Edward Snowden from Hong Kong not because of the "political arrest" exemption but because Snowden had claimed that the NSA hacked Chinese sites.

Gary McKinnon

In 2001 and 2002, Scottish programmer Gary McKinnon allegedly hacked a large number of US military sites. He was indicted by a US grand jury in November 2002. The US has been trying to extradite him from the UK ever since, so far without success.

In 2005 the UK established a new extradition treaty with the US, under which the US was no longer required to supply "incontrovertible evidence".

There was a 2008 hearing in the UK House of Lords; one issue was the fact that the US was trying to bargain with McKinnon, but reserved the right to retract any of its promises. (This is standard in US plea-bargaining, but not in the UK.) Apparently the House of Lords ended up dismissing this concern, however. Of more significance may have been McKinnon's diagnosis of Asperger's Syndrome, and also of possible suicidal ideation.

In October 2012, Home Secretary Theresa May denied extradition on human-rights grounds relating to McKinnon's illnesses.

After careful consideration of all of the relevant material, I have concluded that Mr McKinnon's extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon's human rights.

McKinnon has repeatedly claimed that he was hacking the US sites to find information about UFOs, antigravity, and free energy.

McKinnon also claimed he got in by finding accounts with blank passwords; others have suggested that the extradition attempt was to punish him not for damaging US systems but for embarrassing the US military for their weak security. Some have argued the same issue applies with Edward Snowden.

Richard O'Dwyer

O'Dwyer was the developer of TVShack.net, a search engine for copyrighted content. The US began extradition proceedings against him in May 2011, charging him with criminal copyright infringement. O'Dwyer's legal team has argued that the US does not have jurisdiction, and that he should be tried in the UK.

In November 2012 the US dropped the extradition proceedings, possibly as part of a plea agreement in which O'Dwyer would travel to the US, plead guilty to something, and pay a fine.

David Carruthers

British citizen and CEO of BETonSPORTS.com (no longer online) David Carruthers was arrested in Dallas in July 2006 when changing planes, because in the US online betting is illegal. He was sentenced on January 8, 2010 to 33 months in prison; apparently this does not include the 3 years already served under house arrest.

He conducted all his BETonSPORTS business while in England, and was just passing through the US when arrested. He was charged because some of BETonSPORTS's customers were allegedly US citizens.

At BETonSPORTS.com you could bet on Manchester United Football Club and the England Cricket Team, but also on the Detroit Lions and the New York Mets.

Facing a potential 20-year sentence, he finally entered a plea of guilty in January 2010.

Carruthers is a major advocate of regulated internet gambling.

What else could have been done? The real issue with internet gambling is that it so frequently involves gambling on credit. (This would not be the case if customers sent in money in advance, but that greatly complicates use of the sites by impulse gamblers.)

In March 2007, BETonSPORTS founder Gary Kaplan was arrested in the Dominican Republic, and extradited to the US. Kaplan pled guilty in 2009 to various charges.

In September 2006 Peter Dicks was arrested at Kennedy International airport for his role with Sportingbet PIC, also based in the UK. The warrant was issued by Louisiana, for violations of Louisiana state law. As New York had no state laws against internet gambling, they ended up dismissing the warrant three weeks later and Dicks departed.

And yet, in other contexts, the government seems completely uninterested in online gambling. See http://www.bloomberg.com/features/2016-virtual-guns-counterstrike-gambling/.