SUBJECT: US legal bug stops legal public domain scanner
documentation
The authority of the Internet service provider of the New Museum in NY stopped
yesterday the
Public Domain Scanner,
an installation and web project in the exhibition Open_Source_Art_Hack
It publishes the analysed
security lacks of the scanned servers, but hides the net.adresses of the
scanned
Here is the outline
of the contestation:
Port scanning is legal:
Port scanning is a frequently
used tool in network security analysis, involving examination of a remote
computer without accessing its programs or data. The port scan used in
Public Domain Scanner do not test login passwords, create a significant
amount of traffic, or access or alter any data on the scanned computer.
In that sense, a port scan is similar to observing a house from across
the street, and perhaps knocking on its front door, but not entering even
if the door is opened.
Only one published opinion
has considered the legality of port scans. That court held that such activity
did not violate federal or state computer protection statues or other
law. The federal district court for the Northern District of Georgia held
that a party who conducted port scans of another party's computer systems
did not violate the Computer Fraud and Abuse Act (18 U.S.C. s. 1030) [1],
because he neither caused damaged nor gained access to the computers at
issue. Moulton v. VC3, 2000 WL 3331091 at *6 (N.D. Ga., Nov. 7, 2000).
Nor did the port scans violate state law, because they did not interfere
with computer or network activity.
References:
[2] Moulton v. VC3,
2000 WL 3331091 (N.D. Ga., Nov. 7, 2000)
[4] Computer Crime and
Intellectual Property Section, U.S. Department of Justice, Field Guidance
on New Authorities That Relate to Computer Crime and Electronic Evidence
Enacted in the USA Patriot Act of 2001<http://www.usdoj.gov/criminal/cybercrime/PatriotAct.htm>
Knowbotic Research to Provider:
Knowbotic Research got
informed that you want the New Museum to shut down our server inside their
network.
Could you please inform
me what are the reasons for this decision? We got informed that there
was only one complaint until now
from an ISP concerning
our Public Domain Scanner.
The museum has informed
this ISP about the art project and as far as I know this ISP showed
afterwards sympathy for this project which does not obscure security issues
in the network and provides a transparent plattform for this topic inside
the artworld.
Is this one complaint
the full reason to stop our project?
Provider DTI:
As you can see at our
Acceptable Use Policy AUP, running security software, scans against machines
you do not have permission to run them against cleary violates a number
of provisions of our Acceptable Use Policy.
We are required by our
upstream providers to carry these clauses, and can lose our access if
we do not enforce them. I assure you, our enforcement of the AUP is nondiscriminatory,
based soley on the nature of the violations, not the motives behind them.
Once again, let me repeat
that this decision is based soley upon our contractual obligations to
our upstream providers, and the desire to protect our reputation as a
responsible ISP. In no way are we making any claims as to the artistic
merits of the project.
Knowbotic Research: These provokes the question: Who is the net.sovereign
behind the upstream provider?
Your experience here
is actually a very interesting part of the project. It demonstrates how
private parties can exert control of the public domain well beyond what
the law requires. Even with institutional support for your installation,
you are often at the mercy of other economic actors -- the ISPs whom the
museum and you depend on for connectivity, who in turn depend upon higher-up
ISPs to preserve their connections to the Internet. Any player in this
chain has the ability to break the connection and prevent you from displaying
and contributing to the public discussion, based on its own feelings,
contracts, and interpretations of the law, before any judge is called
in to determine whether the activity is legal.
Curator Steve Dietz:
The fact that Minds
of Concern is potentially undermined by the legal system in the form of
a standard or "shrinkwrap" license the New Museum has with its ISP is
not insignificant. It is precisely a legal bug and the strategy
by which so much of the public domain in the U.S., at least, escapes Constitutional
and other legal protections by entering into [voluntarily?] contractual
agreements that void and/or supercede these supposed rights.
Commment Mailing List Lachlan Brown:
Indeed, the distinction
between assumed rights and legal guarantee of rights, public and private,
residesin an interstitial state. Not a 'grey area' to be filled in between
the public and private by new conditions for cyber' space, but a contest
in which like a Venn Diagramme the public and private vie over the
terrain they both occupy.
Add to this the interests
of several dozen States, thousands of public service institutions hundreds
of thousands of companies and millions of users, well... . What would
we call it? War? Wrestling? or Seduction? A Million times a million
contests. Cultural confusion.These webs of the law are durable and have
easy translation to the new media distributive terrain. Despite word
play or administrative/bureaucratic assumptions of power. The really
interesting fact is that States, institutions, companies, individuals,
but not collectivities like artists, writers, coders, primary producers
and so on, are beginning to 'stand-off' this terrain. We might, after
all, consider a return to the question of the aesthetic, and then of
policy, and thenof law over several years. It will become clear as we
do so that we NEED insitutions, new institutions perhaps, that are able
to host the work you do.
knowbotic research, 11.5.02
Information:
- Why do we
show the vulnerability of NGOs and media artists?
-
What is a Public Domain Scanner?
- What is Portscanning?
- Project Description
- Exhibition
Context
Art, Media
and Legal Issues:
- Artistic network practice
on the bad guys space
- Open Law
- Fraud and Related Activity in Connection with Computers
Public Domain:
- For the Public Domain
- Giorgio Agamben On Security and Terror
- The
Patriot Act
- Quality Security Tools
Credits:
knowbotic research in collaboration with Wendy Seltzer http://openlaw.org,
Peter Sandbichler
(installation),
thanks to
Wolfgang Staehle +THE THING (Gisela Ehrenfried, Jan Gerber, Walter
Palmetshofer),
Ania Kurowska, Richie M�nch-Jindal, Marco Klingmann, Christoph Burgdorfer
Thomas Sandbichler, Ingo Guenther, Tim
Druckrey, Andreas Broeckmann,
Kunstsektion Austria, Rubbermaid Corp.,
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