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Hacked Opinions: The legalities of hacking – Jim Jasinski

Oct 26, 20156 mins
IT LeadershipTechnology Industry

Jim Jasinski talks about hacking regulation and legislation

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Jim Jasinski, from Fortinet, 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 cybersecurity?

Jim Jasinski, Vice President, Federal Business Development, Fortinet (JJ): In the intriguing novel, Alice in Wonderland, the author Lewis Carroll had the Mad Hatter state a riddle, "Why is a raven like a writing desk"? After much prodding from Alice he admitted, "I haven't the slightest idea."

His readers found this unacceptable and hounded him for an answer, which he subsequently provided. His readers however didn't like his solution and have subsequently suggested multiple other resolutions. The moral of the story is have your answer ready when the question first appears, or run the risk of enduring unending alternatives. Further proof of this advice; just ask any parent answering a child's question!

Cyber finds itself in the same position. It was built in a quest for an open environment, with the hope for an easy and ready exchanges of ideas. Development proceeded on the presumption of data and user integrity. As a result, cybersecurity was never a priority, and in fact was not a linchpin in its development.

As a result, much like Carroll, an answer is required after the event erupted. And like Carroll's audience, answers are not embraced. We live in an era of multiple suggestions, in part because the riddle of cybersecurity is a series of riddles - right to security, ease of use, privacy, ready access, mobility, and hundreds of others, all which arose after the fact.

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

JJ: Cyber security is not an end point but rather, like all security issues, a continuing process. This process seeks to replace today's parallelogram with a rectangle for tomorrow. In other words the goal is a balanced solution of risks and protections. As such, any statutory solutions have to incorporate dynamic principles counting for evolutionary developments.

The statutes or regulations of today will likely be as outdated tomorrow as the technology of yesterday, and this should be accordingly considered. Artificial intelligence, the internet of things, the theory of singularity, are all concepts that are developing and leading to areas unknown, but that doesn't mean that today we can't craft statutory solutions that allow for those changes without having to redo the statutory structure.

In the race between technological and legislative solutions, the former will always be the proverbial rabbit and the latter the tortoise. Security is not achieved without investment, and the investment has to be at least as valuable as the risk. The focus must be on the end goal, which is an open and secure digital environment, best captured like the ancient description of Pax Romana but only now Pax Cyber.

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?

JJ: Absent a reckless disregard of the facts, cooperation is presumptively in good faith and without liability. Today's hacker threats thrive in a world of open dialogue with access to a pool of shared experience, whether successful or unsuccessful. This data sharing enables and accelerates the threats.

To counteract such an environment requires cybersecurity and end users have the same level of data sharing. The theme therefore for all legislation is cooperation and the line will promote the sharing process.

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

JJ: The efficacies of the digital revolution are matched or exceeded by the digital damage of an unauthorized penetration. This is almost axiomatic as the examples are infamous. Since the risk is universal, the duty to defend is also.

That defense requires a united and shared response that occurs in an environment of cooperation. It should be understood that cooperation is in the risk identification, not the risk response. The goal is to identify and define the risk, but to leave the response to be developed through competition.

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?

JJ: As Oliver Wendell Holmes noted, the First Amendment protects free speech but it also does not enable someone to cry out a false fire alarm. Such an act bears consequences that always must be considered in any scenario of competing rights and duties.

Clearly there is value in an open dialogue, but seldom is there only one principle in any such discussion. Therefore the appropriateness of legal threats or intimidation are contextual determinations that are fact driven and are difficult in answer in the abstract.

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?

JJ: The objective is to maintain the integrity of the digital world and any threat intelligence or data that undermines that integrity should always be evaluated for sharing.

The premise of this entire discussion is that the protection of the cyber world is an intelligence operation. That said, it has to be viewed in that light. How important is the data, will its release reveal collection methods or techniques, and what is the greatest risk, revealing or not revealing the data.

These principles are universal, whether the government sharing with non-government entities or vice versa. The goal is to maximize cooperation and data sharing, but judgment is an indispensable ingredient. We started this exchange on the observation that the cyber world was built on a false presumption of integrity in both the data and the end users. I don't think it would make sense to repeat that same error in sharing threat intelligence.