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The UK government has published guidelines for the application of a law that makes it illegal to create or distribute so-called "hacking tools".

The controversial measure is among amendments to the Computer Misuse Act included in the Police and Justice Act 2006. However, the ban along with measures to increase the maximum penalty for hacking offences to ten years and make denial of service offences clearly illegal, are still not in force and probably won't be until May 2008 in order not to create overlap with the Serious Crime Bill, currently making its way through the House of Commons.

A revamp of the UK's outdated computer crime laws is long overdue. However, provisions to ban the development, ownership and distribution of so-called "hacker tools" draw sharp criticism from industry. Critics point out that many of these tools are used by system administrators and security consultants quite legitimately to probe for vulnerabilities in corporate systems.

The distinctions between, for example, a password cracker and a password recovery tool, or a utility designed to run denial of service attacks and one designed to stress-test a network, are subtle. The problem is that anything from nmap through wireshark to perl can be used for both legitimate and illicit purposes, in much the same way that a hammer can be used for putting up shelving or breaking into a car.

Following industry lobbying the government has come through with guidelines that address some, but not all, of these concerns about "dual-use" tools. The guidelines establish that to successfully prosecute the author of a tool it needs to be shown that they intended it to be used to commit computer crime. But the Home Office, despite lobbying, refused to withdraw the distribution offence. This leaves the door open to prosecute people who distribute a tool, such as nmap, that's subsequently abused by hackers.

The Crown Prosecution Service guidance, published after a long delay on Monday, also asks prosecutors to consider if an article is "available on a wide scale commercial basis and sold through legitimate channels". Critics argue this test fails to factor in the widespread use of open source tools or rapid product innovation.

IT and the law are never easy bedfellows. While the guidelines probably make it less likely the security consultants will be prosecuted by over-zealous lawyers for actions they don't understand are legitimate, they are still a bit of a mess.

Richard Clayton, a security researcher at Cambridge University and long-time contributor to UK security policy working groups, has a useful analysis of the proposals here. ®

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