Journal Chatmag's Journal: Fizzer Worm legal issues
This may be a little broken, it was originally sent in response to a
question posed to me asking for my opinion regarding the legal aspects
reference using the Geocities page.
This is not competent legal advise, just my
understanding as a publisher, and a person who has been involved in the
Internet for over 10 years. I will be in contact with a lawyer familiar
with Internet law, if nothing else, just for my own education.
The infected user first downloaded Fizzer embedded within another file,
presumably either on KaZaa, or via email attachment. KaZaa posts their
Terms of Service, which includes the statement that any user understands
they may also receive other files not included in any posting of file
names, that is, they may also download malicious or other unwanted
files, and that they do so at their own risk. At that point, should the
user choose to download and run files, they have given their implied
consent.
Once the infected file is downloaded and opened, installing it into
their computer, the infected file has a "call home" feature written into
it by the author of Fizzer, which periodically allows the program to
access a remote server to automatically update itself. There are many
instances of legal programs which also have this feature, so the notion
of a program "calling home" is generally understood to be an accepted
action. (My HP does that, or did, until I disabled the port it uses) The
program would then download any updates posted on the
server, at the IP that is set within the program routine itself. This
still falls into the "implied consent" rule, as the user is allowing the
program to do as it was intended.
In the case of the original Fizzer author, the intention was to give a
malicious program updates which would sustain the operation of the
program, causing further harm to other users and networks. By accessing
the Geocities site, as provided within the Fizzer, and replacing the
update with another series of commands that in effect disable Fizzer,
any person placing such files would reasonably be acting within the
original intent of the Fizzer author, that is to say, supplying updates
to the existing program. That the update causes Fizzer to become
disabled is of little consequence, as the user has by implied consent
allowed any and all further modifications to be implemented to Fizzer.
While it is the intent of the original author to cause harm, the persons
responsible for the modification which in effect shuts down Fizzer are
acting on the premise that they are doing so for the good of all.
The original Fizzer author also built into Fizzer the ability to connect
to various IRC networks, and join particular chat rooms, in order to be
further controlled by remote command. The end user, having consented to
downloading and installing Fizzer, therefore by implied consent, agrees
to allow any and all commands to be issued to their computer via said
IRC channels.
One example of remote cleaning of computers can be found at
http://housecall.antivirus.com
The long and the short of it is, no one is "modifying" any computer,
they are only carrying out the original authors intent of updating
Fizzer. That it in effect causes Fizzer to cease to be of further harm
is of benefit to all, and would be seen in most courts as an action for
the common good. I am aware of several other less publicized actions
taken of the same sort, this being the first of its kind as far as
coverage by media. It is more a matter of ethics rather than a legal
issue, I believe. Ethically, I think it is justified.
I think it is an innovative, and proper solution to a problem and may
have far reaching effects beyond disabling one malicious program.
The author of the IRC Junkie article does raise a valid point, that the
actions taken do raise legal issues, and with Internet Law a new field,
quite a lot of what we do is new to the legal profession, and the law
will adapt to this new medium, for the most part, borrowing from current
legal precedents.
On another point, it would be fairly simple to track the original Fizzer
author, Geocities should have the IP of whoever first set up the site. I
can only hope they are cooperating with investigative agencies.
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