Product Security and Telecommunications Infrastructure Bill — House of Lords, 2022-06-21
Topic: Technology
James Arbuthnot (Conservative, Centre-right): My Lords, Amendment 16 proposes a statutory defence for ethical hackers. I am grateful to the noble Lord, Lord Clement-Jones, and to the CyberUp campaign, for their help. Again, I declare my interests as chairman of the Information Assurance Advisory Council, chairman of the Thales UK advisory panel and chairman of Electricity Resilience Limited The Computer Misuse Act 1990 criminalised unauthorised access to computer systems. The methods used by cybercriminals and cybersecurity professionals are often identical, which is one of the things that makes the drafting of this amendment rather problematic. Usually, criminals do not have permission for what they do, and cybersecurity professionals do, but I am told by the CyberUp campaign that there are occasions on which that permission is difficult or impossible for a cybersecurity professional to get At Second Reading, I cited the case of Rob Dyke, who has been through a legal tussle with the Apperta Foundation, which has since been in touch with me to put its side of the story. It is clear that it feels strongly that it was right to pursue Mr Dyke until he gave undertakings that allowed it to drop its litigation. I do not know the rights and wrongs of that, but the Apperta Foundation supports the principles put forward by CyberUp for a legal defence for offences under the Computer Misuse Act In any event, the Government are carrying out a review into the 1990 Act. CyberUp’s submission to it sets out that many in the cybersecurity profession do not know whether what they are doing is legal. This is because legislation in 1990 came in before much of what now happens with computers had been thought of—so it inevitably created ambiguities. In the 1990 Act, no consideration was given—I remember because I was there—to web scraping, port scanning or malware denotation, and people are not sure that they are legal. Some of us are not sure quite what they are This is why there needs to be certainty for cybersecurity researchers; they need to be able to do things for the public good. We cannot rely on the National Cyber Security Centre for everything, because even the Government cannot keep up with the speed of technological development, as has been mentioned. The CyberUp campaign recognises that legislation also cannot keep up with the speed of change, so it has helped with drafting this amendment not with a view to seeing it enacted—my noble friend will resist it for a number of good reasons—but with a view to eliciting from the Government a statement about how they are getting on with this aspect of the review of the Computer Misuse Act One suggestion that the CyberUp campaign makes is that "legislation to mandate the courts to ‘have regard to’ Home Office or Department for Digital, Culture, Media and Sport … guidance on applying a statutory defence that would, ideally, be based on the framework" of principles. This includes, first, the prospective benefits of the Act outweighing the prospective harms; secondly, reasonable steps being undertaken to minimise the "risks of causing harm"; thirdly, the actor demonstrably acting "in good faith"; and fourthly, the actor being "able to demonstrate … competence". Here we may come back to the standards/principle discussion that we had on the first group So I expect my noble friend to reject this amendment, but I should be grateful if he could say where the Government’s thinking on the matter is.