Original URL: http://www.theregister.co.uk/2009/03/18/bbc_botnet/
BBC botnet 'public interest' defence rubbished by top IT lawyer
V for Vigilante
The BBC's argument that "public interest" justified its purchase and use of a botnet in a controversial experiment is little better than vigilantism, according to a top IT lawyer.
BBC Click bought a botnet of 22,000 compromised machines in order to send spam to webmail addresses it set up, and to launch a denial of service attack against a dummy website run by security firm PrevX, which advised on the exercise. BBC researchers then changed the wallpaper on compromised machines to alert victims that their machines were infected.
During the programme, broadcast last weekend, it was explained that the BBC had paid a premium to take control of compromised machines with IP addresses not located in the US or UK. By its own account, BBC Click paid crooks in Russia and the Ukraine thousands of dollars for this privilege.
The exercise, intended to illustrate cybercrime risks, has split security vendors. Many argue that the same issues could have been illustrated in the lab, without interfering with the PCs of innocent victims or sending spam. Kaspersky, AVG, McAfee, FaceTime, Sophos, Sunbelt Software and F-Secure have all come out in describing the exercise as various flavours of misguided, unnecessary and unethical.
But other vendors, including participant PrevX, argue that the experiment was justified in illustrating cybercrime risks more graphically than ever before. Comodo, Marshal8e6 and MessageLabs are also supportive of the BBC's approach.
Reg commentards are also divided, but with the majority favouring the BBC's stance. The BBC has firewalled our requests - made in response to its message on Twitter that it had cleared the exercise with its lawyers - for a fuller explanation as to how its experiment was legally and ethically above board.
However, complaints from Reg reader Stuart Gibson over the legality of the botnet caper elicited the following response.
It wasn't our intention to break the law but if there has been any breach we have done this because of the powerful public interest in demonstrating the ease with which such malware can be obtained and used; how it can be deployed on thousands of PCs without the owners even knowing it's there; and its power to send spam email or attack other websites undetected. This will help computer users realise the importance and value of using basic security techniques to defend their PCs from such attacks.
The 'Click' demonstration is featured in full in the programme, and further information is available on the BBC Click website. I can assure you we're ready to help the authorities with any inquiries arising from this report.
I've also registered your concerns about this report on our audience log. This is circulated widely within the BBC and made available to many BBC staff, including members of the BBC Executive Board, channel controllers and other senior managers.
Struan Robertson, editor of out-law.com and legal director at solicitors Pinsent Masons, reckons the "powerful public interest" argument is irrelevant in considering whether the BBC acted in violation of UK computer misuse law. He told El Reg that BBC Click would do better to apologise than hide behind such shaky defences.
The public interest argument is no defence to the Computer Misuse Act. It could influence a decision by the police and the Crown on whether to take any action over the BBC's behaviour; but it could also backfire. An apology is more likely to make the problem go away, in my view, than an argument that breaking the law was the right thing to do.
Breaking the law in the public interest is an argument that vigilantes will use. It rarely wins support from law enforcement.
Some Reg readers have reported their concerns about the programme to the Met's Computer Crime Unit, which has said it's not prepared to do anything until a victim makes a complaint. Given that BBC Click carefully chose machines outside the UK and US, this is unlikely to happen.
In any case, it's not hard to argue that scant cybercrime resources are far better served in investigating profit-hungry cybercrims than BBC hacks. However, contrary to BBC Click claims, we don't think the BBC carried out a storming piece of investigative journalism. Tampering with people's PCs to illustrate the botnet risk is unethical in much the same way that breaking into homes to dramatise the risks of burglary is also a non-starter.
That's by no means a universal view. A poll by security firm Sophos, which has been among BBC Click's more outspoken critics, found that a majority (56 per cent) of the 854 respondents reckoned what BBC Click did was either against the law or "set a dangerous precedent". A third said that although the exercise might be legally questionable it "helps raise awareness", while 11 per cent dismissed the whole business as a storm in a teacup. ®