Problems with the Law Enforcement Discourse

Problems with the Law Enforcement Discourse

The legal discourse, in its attempts to figure out how to treat computer hackers yet often knowing very little about computers and/or hacking (especially judges and juries), fits it into the traditional criminal code. The problem with this approach is that computer hacker "crimes" can be qualitatively different from regular ones. For instance Prophet, a Legion of Doom member, hacked into a Bell South system and copied a file on the 911 system. Later he was charged with theft of a document valued at a highly inflated $79,449 for its approximately ten pages. He had not even stolen it. Bell South still had their original copy, and his document was of next to no value. In fact, this "stolen property" was distributed to thousands of people when it was edited and included in an issue of Phrack. Are they all guilty of a criminal offense? Another questionable parallel is that when a hacker gains access into a computer system it is treated like break and entry or trespassing. While in fact the actions of the white hat hackers are as if someone were to enter a house without breaking anything, read a couple books, and leave everything in such a condition that the house’s occupants will never realize or feel any loss from the intrusion. Not only that, but the hacker’s behavior inside the house is so low-key, that if you were to be home at the time of the intrusion you would likely not notice them.
The other major problem with the legal discourse is that it fails to distinguish between hackers who intend no harm and criminals. As an example, while questioning Emmanuel Goldstein, editor of 2600, chairman of the congressional committee Markey first wanted used the label "bad hacker," then twice insisted upon "crackers," and finally went with "criminal hackers," all while Goldstein insisted that the people in question were criminals. He does not even accept for them to be called the lesser term of "cracker." The criminals might be using hacker technology, but that does not make them hackers because they lack the values and technical knowledge.

Mr. MARKEY. ... What do we do about the bad hacker?
Mr. GOLDSTEIN. Well, I just would like to clarify something. We have heard here in testimony that there are gang members and drug members who are using this technology. Now, are we going to define them as hackers because they are using the technology?
Mr. MARKEY. Yes. Well, if you want to give them another name, fine. We will call them hackers and crackers, all right?
Mr. GOLDSTEIN. I think we should call them criminals.
Mr. MARKEY. So the crackers are bad hackers, all right? If you want another word for them, that is fine, but you have got the security of individuals decreasing with the sophistication of each one of these technologies, and the crackers are out there. What do we do with the crackers who buy your book?
Mr. GOLDSTEIN. I would not call them crackers. They are criminals. If they are out there doing something for their own benefit, selling information --
Mr. MARKEY. Criminal hackers. What do we do with them?
Mr. GOLDSTEIN. There are existing laws. Stealing is still stealing.
Mr. MARKEY. OK. Fine.
(Congressional Testimony qtd. from Phrack)
In summary, the legal discourse contradicts both the ethical hacker one by lumping all hackers together as criminals, and the nostalgic one by preferring the computer underground’s definition of hacking to the nostalgic one.