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When eight states propose laws that could make it illegal to use a network firewall, it would be nice if working IT professionals could laugh it off. It would be nice if those who know better could assume that laws like these would fail as quickly and obviously as a measure that seeks to repeal the law of gravity.
Unfortunately, Ive seen little in the history of cyber-law to inspire much hope that legislation will converge with common sense—not, that is, unless those who understand IT operations start taking a more active role in writing the rules.
Texas, Massachusetts, South Carolina, Florida, Georgia, Alaska, Tennessee and Colorado propose to forbid the use of any technology that conceals “the existence or place of origin or destination of any communication.” Such as, for example, a router? Or a network address translator? Or any of several other basic tools of Internet connection and management?
From what Ive seen, most legislative bodies routinely fail to understand the requirements of practical system administration and their difference from malicious mischief. The resulting laws can criminalize everyday practices.
For example, suppose I drafted an attempt at an anti-hacking law that made it a crime “to alter or remove information resident on a computer system without the permission of the person who originated that information”? That sounds good, until you realize that a system administrator could no longer purge the e-mail files of an employee who had left the company unless that former employee gave consent. In fact, that language is so badly drawn that I technically could not delete unsolicited commercial e-mail messages unless they contained a clause allowing me to do so.
Before you object that no competent body would write a law that could be interpreted in this way, consider this clause from the Council of Europe Convention on Cybercrime, passed in November 2001 and still binding on signatory nations: “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data.”
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OK, lets say Im a market research company. I make my living by sending out millions of e-mail messages with embedded HTML tags, devised to send uniquely identifiable queries to my server when a message is read—thereby to determine which e-mail addresses are promptly receiving and reading my customers commercial content. Suppose that a popular e-mail client application, or an ISPs e-mail server software, recognizes and blocks that identifiable query, under the control of an end-user privacy preference setting. Does that “intentionally hinder the function” of my business intelligence collection system, “without right,” by “suppressing computer data”? Can you afford to go to court and see what the judges say?
I want to be fair to those who make good-faith efforts to strike a careful balance. The Explanatory Report, for example, that accompanies the Council of Europe Convention on Cybercrime explains its intentions in the key area of whether possession or use of security testing tools would be inappropriately criminalized: “As a reasonable compromise the Convention restricts its scope to cases where the devices are objectively designed, or adapted, primarily for the purpose of committing an offence.” This language is intended to exclude tools that have legitimate security assessment applications. Ive heard many security professionals decry the Conventions criminalization of their tools, apparently without appreciating the effort thats been made to avoid that result.
It seems to me, however, that engineers hear the word “law” and think “the way the world behaves.” Legislators hear the word “law” and think “how were going to make the voters and campaign contributors happy.” When legislators declared laws conflict with engineers discovered laws, one cant expect the politicians to apologize and change. Theyre more likely to compound their original errors.
Enterprises already strive to guide the creation of laws that affect the taxes theyll pay or the competition theyll face. Enterprise professionals should likewise seek involvement in processes that redraw the IT playing field.
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