But they should give a shit before they can pass judgement, because they're not important just to me and because there are actual victims involved (which might be different than the accusants).
What if no private data were actually accessed, let's say if the researcher only compromised his own account.
Or about the case that he hacked a device that he bought, violating the Acceptable Use Policy of the producer.
Or the case where someone automated the retrieval of data that he already had legally access to, like, if I recall correctly, Aaron Swartz.
All these examples are unique and would fail any physical-world analogies, so they should be examined and judged differently, by people that do give a shit, want to take the effort to understand their unique aspects -and are actually able to. I'm not sure if that's the case.
My general point is about how we found ourselves in a system where justice servants, like prosecutors, appear to treat their job "just like any job" (at least in cases that they might consider abstract -"hacking", less clear and direct effects than "murder"), where they can put their careers first and ignore any consequences to others. Or that someone has to bear enormous defense costs to stand a chance, or be coerced to plead guilty or abstain from exercising what should be his right, out of fear of finding himself involved in such a situation.
The whole point of juries is for them to judge you against the norms of society at large. The fact that a small group of people might be operating under different norms is irrelevant. They don't have to understand your values in order to judge you. All they need to understand are the facts and the law.
The prevailing norm is that property rights are sacrosanct, and any invasion of those rights is considered suspicious and explanations about benevolent intent are disbelieved. There is no general right to "tinker" with other peoples' property without permission, for fun, for research, or for any other reason. We are not a society that requires security measures to be effective in order to serve as a signal to keep out. A velvet rope is as effective as a steel door for the purposes of signaling that access is not allowed.
This is not a matter of prosecutors putting their careers ahead of the spirit of the law. It's about hackers not understanding that we're a society that requires you to keep your hands to yourself.
NB: I have a beef with the CFAA, but it's not with the spirit of the law, but rather the fact that criminal penalties under the CFAA are totally out of line with those in analogous physical scenarios. The standards for trespass on digital networks shouldn't be higher than the standards for trespass in the physical world. But juries can't do anything about this problem, and judges really can't either. It's Congress's problem for putting the felony escalation provision in there.
Researches that trespass a digital network aren't the only ones who are affected, though.
Let's say, a quote from the OP article:
"Lanier said that after finding severe vulnerabilities in an unnamed “embedded device marketed towards children” and reporting them to the manufacturer, he received calls from lawyers threatening him with action.
[...]
As is often the case with CFAA things when they go to court, the lawyers and even sometimes the technical people or business people don't understand what it is you actually did. There were claims that we were 'hacking into their systems'.
The threat of a CFAA prosecution forced Lanier and his team to walk away from the research."
There's nothing to that anecdote other than a company getting mad about exposing defects in a product and their lawyer making a nasty phone call.
The CFAA is vague and over-broad, you won't get any disagreement from me on that. Applying it in a case involving a device you bought and own is totally inconsistent with traditional norms of private property. But those are edge cases. The actual prosecutions people get up in arms about aren't edge cases. They pertain to conduct that clearly violates the norms of trespassing on private property, and hackers justify their actions by saying that those norms shouldn't apply to digital networks. Juries, unsurprisingly, don't buy that. So hackers and the broader tech community call them "ignorant."
You've also got the Sony VS Hotz lawsuit, where Hotz was forced to back-off. Edge cases, maybe, but demonstrate that not everybody draws the line at the same place.
For you, someone finding a vulnerability in the software that provides a network service, hosted in some server he doesn't own, is clearly trespassing private property -even if he only accesses his own account's data- but finding a vulnerability in the software that comes bundled on a device he bought, is not.
For Sony, let's say, both constitutes violations of her property -it's her software, she owns it and she doesn't care if the carrier is her server or the device she just sold you. In both cases she only gives you permission to use her software in a certain way, which excludes any sort of hacking.
Maybe the reason that many draw the line to the medium, is because it is easier to visually compare a computer network to a physical property than a device that you have bought (but has data you don't own)?
But is the physical ownership of the medium that carries the data what matters or the ownership of the actual data that are being accessed? If it's the medium, why, when the really important thing that the owner cares to protect is, in almost all cases, the data?
Not trying to argue, just expressing some questions that I think are tricky and deserve more thought than they get. In any case, I think physical and digital property analogies can only take us that far, so I try to keep clear of them.
Sony vs. George Hotz was a civil case in which the CFAA played a small role compared to the numerous other statutes invoked, and that case ended in a settlement.
What we are talking about in this thread is the supposed criminalization of security research. If you're trying to get someone to take the other side of the argument that security research is needlessly legally risky, you're probably not going to find many takers. There is a world of difference, however, between being sued and being imprisoned.
What if no private data were actually accessed, let's say if the researcher only compromised his own account.
Or about the case that he hacked a device that he bought, violating the Acceptable Use Policy of the producer.
Or the case where someone automated the retrieval of data that he already had legally access to, like, if I recall correctly, Aaron Swartz.
All these examples are unique and would fail any physical-world analogies, so they should be examined and judged differently, by people that do give a shit, want to take the effort to understand their unique aspects -and are actually able to. I'm not sure if that's the case.
My general point is about how we found ourselves in a system where justice servants, like prosecutors, appear to treat their job "just like any job" (at least in cases that they might consider abstract -"hacking", less clear and direct effects than "murder"), where they can put their careers first and ignore any consequences to others. Or that someone has to bear enormous defense costs to stand a chance, or be coerced to plead guilty or abstain from exercising what should be his right, out of fear of finding himself involved in such a situation.