Hacked Opinions: The legalities of hacking – Andrew Tannenbaum

IBM's Andrew Tannenbaum talks about hacking regulation and legislation

IBM's Andrew Tannenbaum 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.

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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?

Andrew Tannenbaum, Cybersecurity Counsel, IBM (AT): One big misconception is that legislation to promote the sharing of cyber threat information -- like the Senate's Cybersecurity Information Sharing Act (CISA) -- will somehow threaten individual privacy. In fact, the opposite is true: an information sharing law would be a big win for privacy.

There has been an unfortunate perception among some that CISA and similar bills passed by the House of Representatives would allow the government to expand its surveillance powers by collecting large amounts of customer personal information from companies. But these bills do not allow for that.

They are targeted provisions, designed to promote the sharing of technical cyber threat information that security professionals can use to block attacks and defend their networks. Personal information such as private emails are not needed to alert others to cyber threats, and these bills require parties to scrub the threat data free of unrelated personal information before any sharing.

In reality, these bills help protect privacy by putting companies in a stronger position to stop the theft of private information by hackers. After all, that's the real privacy crisis. In 2014 alone, more than one billion records containing personal information were stolen by cybercriminals, and they are not slowing down. Promoting responsible threat information sharing will help organizations defend themselves and their customers against those criminals.

The bills also contain new privacy, transparency, and oversight requirements that would clarify the law in this area, make sure everyone is on the same page as to how to share such data while protecting privacy, and inform the public about any privacy impact and effectiveness of such information sharing -- all net wins for privacy.

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

AT: Lawmakers considering updates to criminal hacking statutes or related provisions should be very careful to avoid unintentionally criminalizing or deterring legitimate security research activities. Security research is essential to effective cyber defense, and the Department of Justice has made its view clear that such activity should not be unlawful.

But when drafting legislation it can be challenging to come up with language that covers certain activity, without inadvertently including other activity. This is an area where that challenge is particularly acute, and careful attention should be paid by lawmakers to avoid such unintended consequences.

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?

AT: There is a line in one of the information sharing bills passed by the House (the Protecting Cyber Networks Act) that I would recommend keeping in when the House and Senate bills are reconciled.

It states, "[n]othing in this Act or the amendments made by this act shall be construed to authorize the Department of Defense or the National Security Agency or any other element of the intelligence community to target a person for surveillance."

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

AT: Whether you include this line or not, the legislation clearly does not authorize any surveillance. So the line is not needed as a legal matter. But it’s important for the public to have confidence that this is not a government surveillance bill.

Given the confusion and misconception around this issue, taking the extra step to make this statement in the bill would help instill such confidence. Nobody wants this to be a surveillance bill – not industry, not government, and not privacy advocates. The House bill does a nice job of making that as explicit as possible.

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?

AT: When researchers responsibly and ethically identify and disclose vulnerabilities, they help strengthen the security of the devices and data we use every day. But disclosure of such vulnerabilities must be done in a responsible manner, by allowing companies time to fix the security issue before alerting the broader public. Otherwise, potential hackers will seek to exploit the vulnerabilities and cause harm before the issue is addressed.

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?

AT: Organizations should share actionable, real-time, and technical threat data that will help others defend their networks from attack. Such data could include samples of malware files to detect, malicious IP addresses to block, vulnerabilities to patch, attack techniques to look out for, and other technical signatures of attacks.

It is also important for the government to share such information with industry -- it should not just be a one-way street. Similar to how the containment of a pandemic requires global collaboration and data sharing across the public and private sectors, the same holds true for cyber attacks.

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