US assumes global cyber-police authority

[R. A. Hettinga]

http://www.theregister.co.uk/content/6/23036.html

US assumes global cyber-police authority
By Mark Rasch
Posted: 27/11/2001 at 10:32 GMT


Much has been written about the new anti-terrorism legislation passed by
Congress and signed by President Bush, particularly as it respects the
ability of the government to conduct surveillance on email, voice-mail, and
other electronic communications. However, too little attention has been
paid to other provisions of the legislation, particularly a significant
change to the definition of the types of computers protected under federal
law.

An amendment to the definition of a "protected computer" for the first time
explicitly enables U.S. law enforcement to prosecute computer hackers
outside the United States in cases where neither the hackers nor their
victims are in the U.S., provided only that packets related to that
activity traveled through U.S. computers or routers.

This remarkable amendment is to the Computer Fraud and Abuse Act, which
Congress enacted in 1984 to prohibit conduct that damages a "Federal
interest computer," defined at the time as "a computer owned or used by the
United States Government or a financial institution," or, "one of two or
more computers used in committing the offense, not all of which are located
in the same State."

Evolution of the 'Protected Computer'
Under that initial definition, if a hacker in the U.S. broke into a
computer in a foreign country (or vice versa), because the computers were
not all located in the same state, a federal offense would have been
committed. If, however, the victim computer and the hacker's computer were
both located in the same state, this would be a purely "intrastate"
offense, punishable by the state or local government. (A purely intrastate
offense could also be prosecuted federally if the victim computer was used
by the federal government or a federally insured institution, or if any
computer involved in the offense was located in another state.)

This limitation represented a conscious effort by the U.S. Congress to
limit the scope of federal crimes to those with a truly interstate reach.

In 1994, Congress replaced the term "Federal interest computer" with the
phrase "computer used in interstate commerce or communication." In 1996,
Congress amended the law once again, defining a new term, "protected
computer," and concomitantly expanding the number of computers that the
statute "protected." The 1996 amendments defined a protected computer as
one that is "exclusively for the use of a financial institution or the
United States Government, or, in the case of a computer not exclusively for
such use, used by or for a financial institution or the United States
Government and the conduct constituting the offense affects that use by or
for the financial institution or the Government; or which is used in
interstate or foreign commerce or communication."

In the new anti-terrorism legislation, Congress once again expanded the
scope of federal jurisdiction over computer crimes. Section 814 of the
PATRIOT bill added to the definition of a protected computer an explicit
provision stating that federal law precludes activities involving "a
computer located outside the United States that is used in a manner that
affects interstate or foreign commerce or communication of the United
States."

Congress did not require that the effect on interstate or foreign commerce
or communication be substantial, or even, for that matter, measurable.

Almost immediately after the legislation was signed, the Department of
Justice issued a guidance paper to instruct thousands of federal
prosecutors how to use the new statute. The guidance noted that:

Because of the interdependency and availability of global computer
networks, hackers from within the United States are increasingly targeting
systems located entirely outside of this country. The [previous] statute
did not explicitly allow for prosecution of such hackers. In addition,
individuals in foreign countries frequently route communications through
the United States, even as they hack from one foreign country to another.
In such cases, their hope may be that the lack of any U.S. victim would
either prevent or discourage U.S. law enforcement agencies from assisting
in any foreign investigation or prosecution.

... Section 814 of the Act amends the definition of "protected computer" to
make clear that this term includes computers outside of the United States
so long as they affect "interstate or foreign commerce or communication of
the United States." 18 U.S.C. § 1030(e)(2)(B). By clarifying the fact that
a domestic offense exists, the United States can now use speedier domestic
procedures to join in international hacker investigations. As these crimes
often involve investigators and victims in more than one country, fostering
international law enforcement cooperation is essential.

In addition, the amendment creates the option, where appropriate, of
prosecuting such criminals in the United States. Since the U.S. is urging
other countries to ensure that they can vindicate the interests of U.S.
victims for computer crimes that originate in their nations, this provision
will allow the U.S. to provide reciprocal coverage.

The Department of Justice therefore views the amendment as more than a mere
clarification of existing law, but as an expansion of U.S. jurisdiction to
permit, for the first time, the United States to prosecute cases where both
the attacker and the victim are located outside the United States, and to
apply U.S. substantive and procedural law to such international activity.

International Law
Computer crime in general, and computer hacking in particular, has always
been recognized as a uniquely trans-national offense. Hackers from anywhere
in the world can engage in activities that will affect computers outside of
the country from which they originate. Moreover, computer viruses, worms
and other malicious code do not respect international boundaries, and can
damage information or computers located in countries far remote from those
where the hacker is located.

Interestingly, when a hacker in Singapore released the "I Love You" virus
affecting computers all over the world, only the U.S. FBI traveled to
Singapore to investigate. When the "Melissa" virus swept across the planet,
no foreign law enforcement officials descended on New Jersey to prosecute
David Smith, the author of the virus, nor were any such officials publicly
invited to participate.

Nevertheless, these cases demonstrate an important principle of
international law -- the so-called "protective principle." Every nation has
the right to extend the scope of its law beyond its borders to protect the
rights and property of its own nationals. An attack on a U.S. citizen
abroad may violate U.S. law. A gunshot from Canada that kills a person in
the United States may properly be prosecuted in the United States. A hacker
who attacks a computer in the United States from a foreign country violates
U.S. law, and it is entirely appropriate that the United States should have
the authority to protect itself from such attacks. Whether the U.S. will
take the lead in such investigations or not will depend not so much on law,
but on international politics.

The recent Council of Europe Cybercrime Treaty encourages countries to make
computer crime an offense within their own borders, and to cooperate on
international investigations of computer crime.

In its interpretation of the need for the unprecedented expansion of U.S.
sovereignty, the Department of Justice asserts that U.S. law enforcement
agencies would not investigate cases of computer crime where the victim and
targets are located outside the United States, not because of the lack of
any authority to do so, but because, of a lack of will. In fact, there is
much truth to this assertion. Many law enforcement agencies see no reason
to assist foreign governments' investigations where there is no likelihood
that they will obtain a conviction within the country.

However, the appropriate response to this reluctance is to encourage
domestic law enforcement agencies to assist their foreign brethren
voluntarily, not to expand the scope of domestic law to permit prosecution
within the United States of what is essentially a foreign offense.

When Reach Exceeds Grasp
Congress' authority to criminalize conduct generally is derived from
Article I of the Constitution, which, among other things allows the
legislature to regulate interstate and foreign commerce. The statute is
broad and allows the protection of the instrumentalities and channels of
interstate or foreign commerce. In 1995 the Supreme Court noted that
Congress' power was limited though to regulate those activities that
"substantially affect" interstate commerce and not merely those where the
affect is tangential.

The distinction is crucial. Clearly if a U.S. computer or computer network
is shut down, attacked, penetrated, or prevented from properly functioning
as a result of foreign hacking activity, the protective principle of
international law should properly permit a U.S. prosecution.

Where the affect on U.S. computer networks is slight -- to the point of
non-existence -- the U.S. should not impose its law on the activity.

The new statute requires no threshold of damage or even effect on U.S.
computers to trigger U.S. sovereignty. The vast majority of Internet
traffic travels through the United States, with more than half of the
traffic traveling through Northern Virginia alone. The mere fact that
packets relating to the criminal activity travel through the United States
should not be enough to trigger U.S. jurisdiction, even though such traffic
would "affect" international commerce, albeit infinitesimally.

The expanded statute, and the DOJ policy guidance, would permit the U.S. to
impose its law on the Internet generally, without the need to show damage
or trespass to a U.S. computer, merely on the basis of packets being
inadvertently routed through U.S. computers. This represents and
unwarranted and dangerous expansion of U.S. sovereignty, and will
invariably result in more turf battles with foreign law enforcement
agencies, rather than fewer.

Under the Department of Justice's interpretation of this legislation, a
computer hacker in Frankfurt Germany who hacks into a computer in Cologne
Germany could be prosecuted in the Eastern District of Virginia in
Alexandria if the packet of related to the attack traveled through America
Online's computers. Moreover, the United States would reserve the right to
demand that the extradition of the hacker even if the conduct would not
have violated German law, or to, as it has in other kinds of cases, simply
remove the offender forcibly for trial.

What is perhaps the most troubling about this legislation, in addition to
the lack of any debate or focus on it, is the fact that the Department of
Justice manual simply says that this unprecedented power will be used in
"appropriate cases." The Department of Justice provides no guidance to
prosecutors or citizens of the world what kinds of cases it will deem to be
"appropriate" for the expanded jurisdiction.

The Department of Justice has no procedures in place to mandate high-level
DOJ review before such power can be used. A prosecutor in Boise may
therefore decide to go after a Norwegian hacker for hacking a computer in
Oslo, if the packets "affected" interstate commerce, and the prosecutor
thinks it "appropriate."

Every country has the right to protect its own citizens, property and
interests. No country has the right to impose its will, its values, its
mores or laws on conduct that occurs outside its borders even if they may
have a tangential effect on that country. The new legislation permits the
U.S. government to do just that, and is unwise and unwarranted.

© 2001 SecurityFocus.com, all rights reserved.

Mark D. Rasch, J.D., is the Vice President for Cyberlaw at Predictive
Systems, Inc. in Reston, Virginia, a computer security and network design
consulting firm. Prior to joining Predictive Systems, Mr. Rasch was the
head of the U.S. Department of Justice Computer Crime Unit and prosecuted a
series of high profile computer crime cases from 1984 to 1991.


-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'



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