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The COE treaty which the German law is intended to implement, noted that it was not intended to create criminal liability where "the production, sale, procurement for use, import, distribution or otherwise making available or possession ... is not for the purpose of committing a [computer crime] offence."
If I intend to facilitate some other crime like unauthorized access or destruction, then cant I be prosecuted as a conspirator or aider and abettor even without this statute? Moreover, because the definition of computer crime hinges on the authorization to access or use a computer system or network, it is difficult if not impossible to determine whether the creation or distribution of the tool is intended to facilitate a crime. A wily hacker could simply say — with a wink and a nod — that the tool should not be used to commit any crime, and thereby escape liability.
Better laws needed
For all these reasons, the German statute is a mess.
While we can empathize with the desire to keep hacker tools out of the hands of script kiddies who intend harm, and keep black hat hackers from developing and distributing ever more sophisticated hacker tools and zero day attacks, the problem remains that these same tools can be and are used for good purposes by good people. While the statute attempts to focus on bad people with bad intent, it lacks the precision to do so.
There were a few cases where the German statute was challenged. The government investigated but declined to prosecute the online magazine Tec-Channel in September 2007, where someone offered a password cracker on the website. In that case, the Federal Office for Security in Information Technology (BSI) determined that there was no intent to violate section 202(c).
There has been a constitutional challenge to the statute. German law, like the law of many countries, requires that criminal statutes be sufficiently definite to describe precisely what is prohibited without overreaching and banning conduct which should be permissible. In Germany, this is codified in Article 103(2) of the fundamental laws of the Constitution. Right after the law went into force, a German computer security company Visukom filed a lawsuit seeking to declare the statute to be unconstitutionally vague and prohibiting lawful and legitimate conduct. The case remains pending, and according to Visukoms former president, should be decided later this year.
We should recognize that there are similar laws on the books in the UK, Poland and even in the United States. Amendments to the UK Computer Misuse Act in 2006 created a new secion which makes it a crime if someone "makes, adapts, supplies or offers to supply any [program or data] intending it to be used to commit, or to assist in the commission of [a cybercrime] believing that it is likely to be so used." Similarly, Article 269(b) of the Polish penal code states that, "whoever prepares, obtains, sells or makes available for other persons the computer devices or software tailored to the purposes of committing [a cybercrime], or prepares computer passwords, entry codes or other data that makes information stored in a computer system or network available shall be guilty of a crime. While neither the United States nor Canada appear to have any explicit "hacker tools" statutes, the US makes it a crime to make or distribute hardware or software designed to get pirated cable or satellite TV signals.
Two years out, the German law has been effectively used to scare legitimate security researchers, while no reported cases have been brought against computer hackers for a violation of the hacker tools provision.
We should use the general laws against conspiracy and aiding and abetting crime — laws which require strict proof of intent to facilitate crime, or acting in concert to achieve an objective — rather than simply passing laws which, subject to the whim of the local prosecutor, could be used to criminalize legitimate conduct.