Legal Aspects of Full Spectrum Computer Network (Active) Defense presented at DEFCON 2013

by Robert Clark,

Summary : Full spectrum computer network (active) defense mean more than simply "hacking back". We've seen a lot of this issue lately. Orin Kerr and Stewart Baker had a lengthy debate about it online. New companies with some high visibility players claim they are providing "active defense" services to their clients. But all-in-all, what does this really mean? And why is it that when you go to your attorneys, they say a flat out, "No".
This presentation examines the entire legal regime surrounding full spectrum computer network (active) defense. It delves into those areas that are easily legal and looks at the controversial issues surrounding others. As such we will discuss technology and sensors (ECPA and the service provider exception); information control and management (DRM); and, "active defense" focusing on honeypot, beacons, deception (say hello to my little friend the Security and Exchange Commission); open source business intelligence gathering (CFAA, economic espionage; theft of trade secrets); trace back and retrieval of stolen data (CFAA).
Past presentations have shown much of what is taken away is audience driven in response to their questions and the subsequent discussion. And, as always, I try to impress upon computer security professionals the importance of working closely with their legal counsel early and often, and of course "Clark's Law" - explain the technical aspects of computer security to your attorneys at a third grade level so they can understand it and then turn around and explain it to a judge or jury at a first grade level.