Internet port scanning - access as a definition




Hello,

Being that some people fail to understand the basics and fundamentals of law, the Maxims and dictates as details in prior posts. I will do this as simply as possible. First I will attempt to spell out the word "access" as it is generally defined by the courts.

Port scanning can be considered "attempted access".

Unauthorised access statutes in most western nations (EC, UK, AU, US etc) have defined "access."

See for example:

Kan. Stat. Ann. § 21-3755(a)(1) (1971 & Supp. 2003);

Wash. Rev. Code Ann. § 9A.52.010(6) (West 2000).

Many of them (especially the earlier statutes) use the definition of "access" that was contained in the first proposal to enact federal computer crime legislation as submitted by Senator Ribicoff in 1977. The bill proposed a "Federal Computer Systems Protection Act."

The bill stated that "access means to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of, a computer, computer system, or computer network." S. 1766, 95th Cong. (1977); see also .

In State v. Riley [1] "repeated attempts to discover access codes by sequentially entering random 6-digit numbers constitute "approach[ing]" or "otherwise mak[ing] use of any resources of a computer." The switch is a computer. Long distance calls are processed through the switch. Riley was approaching the switch each time he entered the general access number, followed by a random 6-digit number representing a customer access code, and a destination number. There-fore, Riley’s conduct satisfied the statutory definition of "access" and so was properly treated as computer trespass".

The general definition of the word, "access," as a transitive verb, is to "gain access to." "[A]ccess," in this context, means to exercise the "freedom or ability to . . . make use of" something. . . . For purposes of the CFAA, when someone sends an e-mail message from his or her own computer, and the message then is transmitted through a number of other computers until it reaches its destination, the sender is making use of all of those computers, and is therefore "accessing" them.[2]

This access is covered in property as a right of easement. This is how courts view access. Access to the court includes "communicate with". Last time I checked, a port scanner communicated with a host.

Regards,

Craig

[1] State v. Riley 846 P.2d 1365 (Wash. 1993) (en banc).

[2] The Washington statute states that to "access" means "to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, directly or by electronic means." Wash. Rev. Code Ann. § 9A.52.010(6) (West 2003).

[3] Krieger, Michael M "Current and Proposed Computer Crime Legislation", 2 Computer/L.J. 721, 723 (1980) (compiling legislation).


Liability limited by a scheme approved under Professional Standards Legislation in respect of matters arising within those States and Territories of Australia where such legislation exists.

DISCLAIMER
The information contained in this email and any attachments is confidential. If you are not the intended recipient, you must not use or disclose the information. If you have received this email in error, please inform us promptly by reply email or by telephoning +61 2 9286 5555. Please delete the email and destroy any printed copy.

Any views expressed in this message are those of the individual sender. You may not rely on this message as advice unless it has been electronically signed by a Partner of BDO or it is subsequently confirmed by letter or fax signed by a Partner of BDO.

BDO accepts no liability for any damage caused by this email or its attachments due to viruses, interference, interception, corruption or unauthorised access.