From the subway system's perspective, the MIT students learned information about vulnerabilities in the system's computers -- whether these "computers" are the MBTA's system, the machines that process the subway fare cards, or even the stored value RFID fare cards themselves. When they tell the public about this vulnerability -- by describing the flaw, describing an exploit, or releasing code -- they have "transmitted information." If, as a result of this transmission of information someone then causes damage or might cause damage to the computer which might cause economic loss, then the person who transmitted the information is liable.

The evidence that the students intended to cause damage to the MBTA's computers is contained in the fact that they promoted their presentation by telling people that they had found a way to get free subway rides. Indeed, the MBTA alleged that the students had already committed a crime based upon audit evidence that the students may have tested one of their modified or cloned fare cards.

The MBTA next argues that, by transmitting this information at DEFCON, a hacker conference, the student's actions are "directed at and likely to incite imminent lawless action." By telling others -- or threatening to tell others -- about the vulnerabilities, the students are, according to the mass transit system ìaiding and abetting potential crimes which might be later committed by these others. The MBTA finally argues that even showing a picture of a MBTA switch with a mention of the network analyzer tool Wireshark is the felonious encouragement of criminal activity.

Responsible Disclosure

Now I am all for responsible disclosure of vulnerabilities. I will venture no opinion here about whether the MIT students here made disclosures to MBTA in a responsible way -- that is, whether they gave the MBTA enough time and information to effectively address the configurations and/or vulnerabilities, and this seems to be the partiesí main point of contention.

However, there exists a Constitutional right to irresponsibly disclose of a vulnerability, if there was no crime committed in learning about the issue.

Imagine this scenario: A man in a ski mask asks you if you know how to break into the vault at the local savings and loan. Being a security expert, you provide this unknown person with detailed information about the configuration of the bank's security system. The masked man then uses this information to break in. In that scenario, you may be liable as an "aider and abetter" of the ultimate crime, as a criminal facilitator or as a co-conspirator. The issue here is one of mental state and intent. Do you intend to help someone commit a crime? Do you "conspire, confederate, and agree" with someone to make their crime happen? Or are you merely -- responsibly or not -- doing something which the real criminal finds useful?

Similarly, there clearly is a distinction between launching a virus, posting a virus that others may launch, posting uncompiled code about how to make a virus, and writing an academic paper about how viruses work. While all of these may be used to cause damage to a computer system, there are issues of immediacy and causality.

The law tends to punish both intent, or mens rea, and actions, or actus reas. While the MIT students clearly could have known that the black-hat hackers would find the released information at least useful in committing a crime -- getting free subway rides -- it is doubtful that they could be said to have intended to cause actual damage to the computers.

Indeed, Jennifer Granick, the lawyer representing the three MIT students had previously and successfully represented Bret McDanel, who was criminally prosecuted by the government under the same flawed reading of the computer crime statute. After McDanel, known as "Secret Squirrel" was tried, convicted and sentenced for telling people how to read other people's e-mail on a supposedly "secure" system, and after he served his sixteen month sentence, Granick convinced the prosecutors that their theory of prosecution -- that is, merely disclosing a vulnerability is a crime -- was flawed, and the government dismissed the charges against McDanel. It was this same theory that was resurrected by the MBTA, and convinced at least one federal magistrate.

As the trains rolled on
underneath Greater Boston
The students looked around and sighed:
"Well, we're sore and disgusted
And we're absolutely busted;
I guess this is our last free ride.

Whenever security researchers release hitherto undisclosed information that could be used to cause harm, damage or loss, they run the risk of civil or criminal exposure, and to possible overreaction. What the MBTA probably wanted was just more time to evaluate the vulnerability and fix it before an exploit could be propagated. It is unlikely, however, that the First Amendment mandated that the MIT students provide it.