Computer Misuse Act new defence proposals from CyberUp • The Register

Campaigners want a new code of practice alongside a proposed public interest defence for the Computer Misuse Act 1990, in the hope it will protect infosec pros from false threats of prosecution.

The CyberUp campaign hopes the four principles it put forward this week will be used by judges to help decide whether accused information security professionals have committed crimes or not.

In a published paper, CyberUp said it wants judges “to ‘have regard to’ Home Office or Department for Digital, Culture, Media and Sport (DCMS) guidance on applying a statutory defence that would, ideally, be based on the framework we propose.”

The principles include asking judges to look at:

  1. Whether an alleged CMA infringement caused harms or benefits;
  2. Whether the infringement was proportional;
  3. What the accused intended to do; and
  4. Their competence “to act in ways that minimise the risk of harm.”

Kat Sommer, NCC Group’s head of public affairs (the company is one of the main movers behind CyberUp), explained: “A principles-based approach represents a means to future-proof changes from the outset and allows flexibility to evolve while maintaining consistency as technology, capabilities, threats and working practices evolve. A statutory defence in primary legislation, with details set out in guidance, strike[s] an appropriate and pragmatic balance.”

Thanks to the very small number of CMA prosecutions every year, any such code is likely to be treated as actual law among the wider public, who settle most adversarial CMA-related conversations without ever getting near the criminal courts.

Industry has strong views

CyberUp wants the Home Office, “owners” of the CMA, to table a Parliamentary amendment to the act which would do two things: insert a public interest defence into the CMA and create a binding guidance document issued by the Home Office.

Statutory guidance is widely used by government departments so civil servants can tinker around the edges of laws without needing to go through a full Parliamentary bill procedure.

The campaign said the infosec industry had been consulted about these principles and, like any emotive conversation, views varied widely on how they ought to work. Industry broadly agreed with what the campaign put forward, though it seems the focus has narrowed to creating a defence to prosecutions brought under section 1.

In its commentary about the principles, CyberUp said:

This has been the case in the recent past: in a classic example of insider threat, a recently sacked IT contractor with a solid work history on paper attempted to sabotage his former employer’s network, using shared credentials known by its entire IT team.

NCC’s Sommer added that an editable list of exemptions that can keep pace with tech (and crime) is better than the CMA’s current approach of setting crimes, defences and punishments in statutory concrete.

She said: “The risk of any list of exemptions being unduly limited, or quickly out of date, is significant. The key difference that a defence will make is that those unfairly caught by the current CMA offences have the opportunity to justify their actions and have them deemed defensible, which is something that simply does not exist at present as any act of unauthorised access is criminal without any regard for the circumstances under which it occurred.”

With section 1 making up the bulk of (the small number of) CMA prosecutions brought every year, there’s some utility to be had from it.

Comment: If this passes, it should be a win

The Criminal Law Reform Now Network said in its 2020 report about CMA reform that current conversations around the law are hampered by a lack of useful information about prosecutions as well as “under enforcement”, noting that recommendations for reform should be set…

If CyberUp’s proposals become a binding statutory guidance document they’ll be an arguable point outside the courtroom as well as in front of a judge, providing a bit of clarity to companies and individual security researchers (and curious folk) alike.

It may be the case that individuals with no track record of security research or certifications find themselves on the aggressive side of an organisation wanting to cover up a breach, or their reuse of a default password on a sensitive system – the 4th principle. They’ll be in no worse position than they are now, and the other three principles could be invoked to help deter CMA-themed legal aggression. That’s a win for CyberUp.

Had the IT pro accused of committing a crime while disclosing an issue to UK open-source org Apperta had the proposed CMA defence available, he could have refuted the open source project’s claims that he committed a crime when viewing exposed data to warn them about it.

Ultimately these conversations, taking place well outside the courts or the sterile environment of judicial ponderings, are the ones that matter.

None of CyberUp’s proposals directly affect civil law, meaning a civil suit in the county or High Court for damages after a breach (or disclosure) wouldn’t be stopped by a new CMA defence. But the defence’s mere existence should be pointed out by any competent lawyer to a civil judge deciding if any harm was truly caused – and being able to do that means if CyberUp gets this through the civil service and Parliament, it’s still a win for the broader infosec community and industry alike. ®

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