[Reader-list] Ashcroft's Global Internet Power-Grab

[Harsh Kapoor]

http://www.securityfocus.com/columnists/39

Ashcroft's Global Internet Power-Grab

A little-noticed provision in the new anti-terrorism act imposes U.S. 
cyber crime laws on other nations, whether they like it or not
By Mark Rasch
Nov 25 2001 11:00PM PT
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.)
'A prosecutor in Boise may go after a Norwegian hacker for hacking a 
computer in Oslo, if the packets 'affected' interstate commerce, and 
the prosecutor thinks it 'appropriate.''
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."

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.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.


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