On August 10, 2007, a new section of the German Penal code went into effect. The statute, intended to implement certain provisions of the Council of Europe Treaty on Cybercrime, could be interpreted to make the creation or distribution of computer security software a criminal offense.
In the wake of the statute, numerous computer security companies announced their relocation out of Germany. However, to date there have been no prosecutions under this provision, and only a small amount of reported litigation. So far, the statute that scared the bejeezus out of the legitimate security community has not deterred or diminished the spread of hacker tools in Germany or anywhere else and has created legal uncertainty about potential liability.
The German law came out of the February 24, 2005 Council of Europe's Convention on Cybercrime (pdf). This convention compelled signatories to adopt implement legislation that, among other things, defined cybercrime, provided procedures for collecting evidence, and create a framework for international cooperation on cybercrime investigations.
Article 6 of the Treaty required signatories to make it a crime to intentionally engage in:
the production, sale, procurement for use, import, distribution or otherwise making available of ... a device, including a computer program, designed or adapted primarily for the purpose of committing [a computer crime] [or] a computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed, with intent that it be used for the purpose of committing [a computer crime].
The treaty language goes on to note that it would not be a crime to produce, sell or distribute a "hacker tool" if it is for a legitimate security purpose.
Of Tools and Authors
Germany adopted Section 202(c) of its penal code in an effort to comply with its obligations under the COE Cybercrime Convention. The German law makes it an offense to create, obtain or distribute any computer program that violates its cybercrime laws. The penalty set by law is up to a year in jail and fines. The statute is broad enough to cover the creation and transmission of a host of programs — whether in hardware, software or both — including password crackers, decryption programs, penetration testing tools, and other common security tools, if it is done as a way of preparing to commit a cybercrime. The statute requires that the commission of the criminal offense be the express purpose of the computer program. The intent of the programmer does not, apparently, matter.
Worded differently, the statute could have focused on the intent of the author or distributor, and not on the purpose of the tool. The law still would have left open the question of whether committing a crime had to be the sole purpose, or just one of the purposes, of the author or distributor of the hacker tools.
The German law was intended to criminalize only the creation or distribution of devices (including software) that were "designed or adapted primarily for the purpose of committing [cybercrime] offences." However, these offenses include things like unauthorized access and destruction.
A tool does not know whether the access is authorized or not. It does not know whether the file destruction is with or without the consent of the file owner. Tools primarily designed to find and exploit vulnerabilities are commonly used by security professionals to test and secure software, networks, and applications. They are, in fact, primarily designed to do things which, if not for the authorization of the network owners, would be a violation of the statute.
Moreover, whether the use of tools without the authorization of the owner of the hardware or software is "authorized" is hardly a neat question. Apple recently argued (pdf) that the use of software by the owner of an iPhone or iPod Touch to jailbreak their own phone violated the provisions of the U.S. Digital Millennium Copyright Act, and was therefore unlawful and unauthorized.
A notorious case of a few years back involved Network Associates EULA which prohibited both benchmarking and the publication of the results of benchmarking. Thus, contract terms, which limit the right to do security testing, are then used to render testing tools into felonies.