Hacked Opinions: The legalities of hacking – Garve Hays

Garve Hays, from NetIQ, talks about hacking regulation and legislation with CSO in a series of topical discussions with industry leaders and experts.

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 cyber-security?

Garve Hays, Solutions Architect at NetIQ (GH): To put it simply, I don’t think lawmakers can distinguish the good guys from the bad guys. The act of studying a software vulnerability does not signal the intent to commit a crime. In fact, there are many security researchers who make a living out of doing just that.

Furthermore, the process usually does not happen in a vacuum and sometimes requires collaboration and at times across borders. This isn’t “Fight Club.” This is a topic we should all be talking about.

What advice would you give to lawmakers considering legislation that would impact security research or development?

GH: There is a quote I really like: “No problem should ever have to be solved twice.”

How this pertains to security research is that we don’t want to start from scratch. Every time. In one sense, that means using tools that have already been developed, such as Nmap, OllyDbg, Kali Linux, and IDA Professional, to name a few. However, it is these very tools that are being mistakenly classified as “munitions” in upcoming legislation.

Sure, they can be used to assist in the creation of “0-days” or “cyber-weapons” but the focus should be on the obviously nefarious end product and clear evidence it is being employed for wrong-doing. So my guidance would be — don’t outlaw the university or mathematics! Instead, write the law to make it illegal to employ a 0-day to trespass, or steal, or do harm to another person. It’s the tank, not the steel factory.

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?

GH: Don’t make it impossible for the good gals and guys to do their jobs. Make provisions if not exclusions for research.

Now, given what you’ve said, why is this one line so important to you?

GH: It’s the whole standing on the shoulders of giants idea. Understanding how things work can lead to making them better. I view this as basic science (remember STEM?). Driving it underground does not improve the state-of-the-art.

Making it a crime to perform legitimate security research is a guarantee that only criminals will be doing it; and guess what, it won’t be to anyone’s benefit.

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?

GH: Should a company resort to legal threats or intimidation as an opening move? Definitely not. The courts have been abused in the past to suppress legitimate research that supports the public interest. Because an issue is uncomfortable, inconvenient, or awkward doesn’t predicate burying it. However, the flip side is “responsible disclosure.”

Trust, but verify. If a best effort has been made to report an exploit, and it does not violate trademarks or copyright, then give the vendor a chance as most vendors appreciate the “heads-up.”

However, If they do nothing or attempt to stonewall, then publishing one’s work is how the rest of the world becomes aware of it. Most importantly, the vendors are then armed with knowledge and can attempt to address the exploit themselves, or as paying customers, insist the vendor do something about it.

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?

GH: I’d like to believe that social pressure and the will of the people will lead to the government behaving responsibly. Furthermore, consider disclosure as something that encompasses a government acting in the best interests of its citizens. In that case, there should be a reciprocal sharing of the five “W’s:” who, what, where, when, and why. And a bonus for how!

• Who: are the targets or victims? Who are the perpetrators?
• What: is happening?
• Where: is the attack taking place? From where is it originating?
• When: is it taking place? Just now? Or has it been ongoing for months or years?
• Why: did this happen? For criminal gain? A competitor conducting corporate sabotage? Is a nation-state attempting to gain an advantage? Is it politically motivated? Activism?
• How: are they doing that?!