Hacked Opinions: The legalities of hacking – Dave Aitel
Hacked Opinions is an ongoing series of Q&As with industry leaders and experts on a number of topics that impact the security community. The first set of discussions focused on disclosure and how pending regulation could impact it. Now, this second set of discussions will examine security research, security legislation, and the difficult decision of taking researchers to court.
CSO encourages everyone to take part in the Hacked Opinions series. If you would like to participate, email Steve Ragan with your answers to the questions presented in this Q&A. The deadline is October 31, 2015. In addition, feel free to suggest topics for future consideration.
What do you think is the biggest misconception lawmakers have when it comes to cybersecurity
Dave Aitel, CEO of Immunity Inc. (DA): The hardest aspect of looking at computer security from a legal perspective is that sometimes law is not the answer.
The computer security field changes so quickly that what seems like a reasonable solution in one year is completely outdated in the next. Laws set broadly enough to capture a problem in one year are as outdated as the computers they were typed on five years later. The CFAA is one example, but the recent debacle around using export control to try to control penetration testing software is another good example. Places where a regulation or law can avoid unintended consequences while still achieving its aims in the long term are few and far between.
What advice would you give to lawmakers considering legislation that would impact security research or development
DA: I think the important thing to realize is that security research is not an activity that happens in a vacuum. While yes, there are individuals doing great work in information security, a lot of it also happens inside companies or Government Agencies, or in collaboration with a large community of international players. The end goal is always higher understanding of the ground truth of all the technology we rely on. And in fact, we don't sometimes know what technology we rely on until it is too late.
What most makes sense right now are carve-outs to copyright law that allow greater inspection of everything around us. The greater societal good is preventing the next Volkswagon emissions debacle from happening, at the cost of "intellectual property rights" for large companies.
If you could add one line to existing or pending legislation, with a focus on research, hacking, or other related security topic, what would it be
DA: I think reverse engineering should be allowed categorically, across the board, for the purposes of security research.
Now, given what you've said, why is this one line so important to you
DA: Because knowing the truth about how software works is the most important and first step towards fixing large problems by allowing market forces to work.
Do you think a company should resort to legal threats or intimidation to prevent a researcher from giving a talk or publishing their work Why, or why not
DA: This is something that is always counter-productive. Even if you win the courts, you always lose in the court of public opinion.
What types of data (attack data, threat intelligence, etc.) should organizations be sharing with the government What should the government be sharing with the rest of us
DA: Properly securing the Internet involves the government sharing risk with the rest of us. This is simple counter-insurgency theory, but is not being implemented properly at the policy level.
Our recent decisions to allow Apple and Google and others to use the strongest level of encryption available were the obvious right answer. The question is why it took so long for the government to realize this
The equities issue here is that DHS and the NSA protect Government sites using information that often comes from sensitive sources. Giving that information to American companies would compromise those sources. There's no good answer to this conflict, but in the end information sharing isn't a complete solution - a real response is needed.
The US Government's recent push against Chinese economic espionage is going in the right direction: Building enough of a case against state sponsored hackers that they can levy targeted sanctions. These sanctions will have their own market pressure within China, to enforce a code of behavior on the Internet that's better for everyone involved.