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Hacker vs. Counter-Hacker — a Legal Debate 182

Freddybear writes "If your computer has been cracked and subverted for use by a botnet or other remote-access attack, is it legal for you to hack back into the system from which the attack originated? Over the last couple of years three legal scholars and bloggers have debated the question on The Volokh Conspiracy weblog. The linked webpage collects that debate into a coherent document. 'The debaters are:
  • Stewart Baker, a former official at the National Security Agency and the Department of Homeland Security, a partner at Steptoe & Johnson with a large cybersecurity practice. Stewart Baker makes the policy case for counterhacking and challenges the traditional view of what remedies are authorized by the language of the CFAA.
  • Orin Kerr, Fred C. Stevenson Research Professor of Law at George Washington School of Law, a former computer crimes prosecutor, and one of the most respected computer crime scholars. Orin Kerr defends the traditional view of the Act against both Stewart Baker and Eugene Volokh.
  • Eugene Volokh, Gary T. Schwartz Professor of Law at UCLA School of Law, founder of the Volokh Conspiracy, and a sophisticated technology lawyer, presents a challenge grounded in common law understandings of trespass and tort.'"
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Hacker vs. Counter-Hacker — a Legal Debate

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  • by ryanmc1 ( 682957 ) on Sunday November 18, 2012 @03:28PM (#42021093) Homepage
    Just change it to this
    ""If your house has been robbed, is it legal for you to break into the other persons house and steal your stuff back?"
  • by Anonymous Coward on Sunday November 18, 2012 @03:59PM (#42021341)

    No, the analogy is good, you're reading it too literally. The question is not whether hacking equals robbing, but whether being wronged gives you authority to retaliate in the same way against the other party, regardless of the actual way you've been wronged. This is something that most legal systems in the world usually explicitly disallow: if an act is against the law when done against you, it is still against the law if you do it in retaliation against the offending party.

  • by bistromath007 ( 1253428 ) on Sunday November 18, 2012 @04:33PM (#42021621)
    Of course it isn't. The only time something that's normally a crime isn't is when violence is self-defense. Absolutely nothing else in our system of law has a "he started it" defense. Leaving aside that no judge is going to accept that hacking is violence without legislative action that will never happen, the normal standards of self-defense could still never apply. Given that you can't know you've been hacked until after it's done, it would instead be retaliatory, which is naughty.

    Some people above are debating whether stealing stolen stuff is a crime. The answer is: it's not stealing. That is still your stuff. If somebody grabs your shit right off your person, that's also assault, so you're free to tackle them to get it back. If they steal it off a table or something, you might have more of a problem; you're still not stealing, but depending on where you live and whether the prosecutor's got a bug up his ass, using force to retrieve your stuff might get you in trouble. Same for carjacking your stolen car, and if you don't somehow do it the same time it happens to you, I imagine using a gun like that would at least get you arrested anywhere, in court anywhere but Texas, and convicted anywhere north of the Mason-Dixon line.

    The larger point here: hacking is not exactly the same as assault, theft, or trespass, and applying the same logic to it is something almost any good judge would refuse to do for fear of unintended consequences. For instance: since you don't know who's hacking you until you've checked them out, if you counter-hack them, you might wind up hacking the police. That's kind of a good thing from a civil rights standpoint, as it means they are on the same level as us, bound by the same natural consequences of their actions, but hacking the police would only be legal in a goddamn utopia. Furthermore, counter-hacking might theoretically lead you to the wrong person if you're not as skilled as your attacker. While this is not the reason trespass is illegal, one can easily imagine trying to steal your stuff back and getting the wrong house, and that's when you're looking for a physical location which you know is associated with a specific person. With counter-hacking, you're looking for a computer somewhere which may or may not belong to your attacker which may or may not have PID stored that is legitimately associated with said bastard.

    So, the whole argument boils down to this: hacking is hacking. It is not other activities, and cannot be usefully treated as similar to other crimes. The closest other thing is wiretapping, and nobody asks if it's okay to do that in a retaliatory fashion. Because of historical computer culture stuff, it might be argued that hacking shouldn't always be illegal, but currently it is, so that is the very obvious answer to the original question of this article. They should've been asking "should counter-hacking be legal," and because of the potential for harm to uninvolved third parties, I am kind of surprised to find myself saying that it should definitely not be. Counter-hacking should never happen without a warrant, and evidence gathered by it needs to be scrutinized very closely to make sure the right guy is caught.
  • by Firethorn ( 177587 ) on Sunday November 18, 2012 @04:36PM (#42021639) Homepage Journal

    The problem here is that self defense is legal in context of preventing harm to yourself - typically this means your body. You're not allowed to attack somebody for busting up your car with a hammer, for example.

    Except for their lagging behind, as far as I'm concerned any retaliatory measures should be done by the police, or if the attack originates in a country that doesn't cooperate with your police, the military.

    IE You're in the USA:
    hack comes from within the USA - FBI, ie federal police. If if comes from next door, local police
    Hack comes from, say, Australia - The FBI contacts their counterparts there and the investigation continues
    From a country without formal legal agreements - Interpol assists
    From a hostile country, such as North Korea? Military, maybe.

  • Re:Who cares? (Score:5, Insightful)

    by Smallpond ( 221300 ) on Sunday November 18, 2012 @05:44PM (#42022005) Homepage Journal

    "...No ethically-trained software engineer would ever consent to write a DestroyBaghdad procedure. Basic professional ethics would instead require him to write a DestroyCity procedure, to which Baghdad could be given as a parameter." -- Nathaniel Borenstein

  • by hobarrera ( 2008506 ) on Sunday November 18, 2012 @07:36PM (#42022645) Homepage

    This isn't really self defense; your actions didn't PREVENT harm from ocurring to you, this was rather vendetta: he did X to me, I did it back.
    I don't think this should be legal, because it could escalate into cyber-wars. Much like you can't steal something that was stolen from you in the first place - you can't take justice into your own hands.

"No, no, I don't mind being called the smartest man in the world. I just wish it wasn't this one." -- Adrian Veidt/Ozymandias, WATCHMEN