Cyber Conflict: The Modern Gold Rush

Gary Clayton and Kevin Coleman note the critical absence of rules of the engagement governing digital attack and defense

In the middle of the 1800s, a few prospectors found gold in California. When word got out, the lure of instant wealth spurred hundreds of thousands to rush to the West. Farmers, city slickers, people with no particular training or skills, all flocked to California to pan for gold. It was bound to happen in today's networked society. With the significant attention Capitol Hill, state legislatures and courtrooms are giving to digital security, it should have been expected that modern day prospectors would flock to the market claiming that they are cyber security experts. In one glaring example, an executive from one multi-billion dollar organization's publicly stated they were heavily involved in cyber security. The problem is that only one year earlier, the same executive denied that he or his organization was involved in cyber defense.

Brian, a Cyber Specialist with Spy-Ops, told us: "Amateur hour has begun and we should prepare for the fallout." One largely unanticipated fallout could be legal action against "amateurs" who rush into cyber security and forensics without knowing the rules of the game-or the legal risks they face. This has been apparent in a number of recent high-profile incidents where so-called security professional worked their way into U.S. and foreign computer systems while conducting their investigations. The investigators then publicly announced that computers belonging to other companies or governments were accessed and used without permission, all in the name of cyber security and fining evidence.

Can computer forensics investigators or others legally access computers they don't own and are not authorized to enter? Can computer files or other information be retrieved from the computers without the owner's authorization? Can you access into computers belonging to the United States government or the government of another country? In short: What are the rules of the road?

The courts, Congress, state legislatures and foreign governments have struggled with how to protect computers from unauthorized access. One of the first causes of action against unauthorized individuals arose by applying traditional physical trespass laws to computers and networks. In the United States and a number of other common law countries, the doctrine of trespass to chattels has recently been revived and applied by courts in the United States (US) to cover unauthorized access and intrusions (in the form of electronic signals) to computer systems connected to the Internet. This has had unexpected and far reaching consequences. Trespass to chattels, a doctrine developed to protect physical property, was first applied in cyberspace cases to combat spam, and hacking. (Editor's note: See Three Things the Litigator Says You Ought to Know.] The outcomes and reasoning in the most recent cases also illustrate the application of a property doctrine that analogizes telecommunications devices to land and construes electronic contact as trespass to physical property.

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