France Says 'No' To Company Hack-Backs Following Online Attacks -- But Wants To Keep The Option Open For Itself

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Ten years ago, Techdirt was warning about the hype surrounding the concept of "cyberattacks", and after that "cyberwar", both of which were routinely presented in apocalyptic terms. As we now know, the real online battles are being fought much more subtly in the form of low-profile foreign organizations subverting nations in sophisticated ways. Unlike the predicted take-downs of an entire electricity grid, these kind of attacks by foreign states and their proxies have already happened, and with troubling effects.Governments have a responsibility to consider all possible attacks that may be conducted via the Internet, which means that drawing up policy documents in the field is important. The French government has just published its "Revue stratégique de cyberdéfense (pdf)" -- that is, a Strategic Review of Cyberdefense. It was written by the General Secretariat for Defense and National Security, which operates under the authority of the French Prime Minister, and assists the head of government in designing and implementing security and defense policies. It's extremely thorough and well worth reading, but it's also rather long (and in French). Fortunately, Lukasz Olejnik has put together a post discussing some of the main highlights of the document, which is much shorter -- and in English. As he notes, in France, cyberdefense and cyberoffense are two separate domains, and the strategy document lays out six main approaches to the former: prevention, anticipation, protection, detection, attribution, and reaction (remediation). On the offense side:

France strongly opposes giving private companies the rights to retaliate following a cyberattack. In the French view, such actions would constitute a point of instability in cyberspace. Especially when considering retaliation against actors located in a different state. France wants to put forward the issue of hack-back on the international level.Notable thing. The fact that the strategy mentions these concepts should probably be interpreted as an indirect response to the ideas discussed in the US, where certain proposals considered giving companies the powers to hack-back.

Annex 7 considers retaliatory actions following a cyberattack. Although the text points out that such actions should be considered provided that all the other approaches (prevention, cooperation, negotiation) fail, it acknowledges that a response can be made using cyber or non-cyber means. The strategy also highlights that major cyberattack can be interpreted as an armed aggression, in line with the Article 51 of Charter of United Nations.

France apparently suggested a desire to put the security liability in hands of product suppliers. In other words, making companies responsible for the security of products they put on the market -- as long as the products are commercially available. The strategy then mentions that one of the solutions could be to release source code and documentation after an end of support date. The strategy itself mentions taking this discussion to the international level.

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Court Sends Cop Back To Prison For Bogus 'Contempt Of Cop' Arrest

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It shouldn't take an appeals court to reach this conclusion, but that's the route taken most frequently by people challenging their convictions. Former sheriff's deputy Matthew Corder doesn't want to serve time after being convicted of depriving Derek Baize of his constitutional rights, and so we've ended up at the Sixth Circuit Court of Appeals. (h/t Sixth Circuit Blog)This all stems from a "contempt of cop" incident. Baize returned home one night to find Deputy Corder parked in his parking spot in front of his home. Baize asked what was going on, only to be told to "mind his own business." Baize then asked the deputy to move his car so Baize could park in front of his house. The deputy said he'd move his car "when he was ready."Nonplussed by the behavior of this supposed public servant, Baize told the deputy to "fuck off." Deputy Corder asked for clarification. Baize responded: "I did not stutter. I said 'fuck off.'" Baize then walked into his house. Corder claimed he yelled for Baize to stop. Baize said he didn't hear this. It really doesn't matter. Citizens are under no legal obligation to engage in conversations with law enforcement officers. The deputy's testimony indicates Baize wasn't committing any crime nor was he wanted for a suspected criminal act when he walked away from the yelling deputy.Baize went into his house. The deputy followed. He banged on the door and told Baize to come outside. Baize refused, again well within his rights. Baize also pointed out Corder might want to get his paperwork in order if he wanted to set foot in the residence. The following was all caught on Corder's body camera:

Baize opened his front door but left his screen door closed. Defendant opened Baize’s screen door and told Baize to come outside “or there are going to be issues.” Baize repeatedly refused, saying that defendant needed a warrant, but defendant responded that he did not “need no warrant.” Defendant told Baize that “right now you’re out here hollering at me and you ran in there, which means there’s exigent circumstances.” Baize again refused to come outside. Defendant reached inside Baize’s home to grab Baize, who braced himself against his doorjamb and said “you are not allowed in my house.” Defendant then entered Baize’s home, grabbed Baize by the back of the neck, and began to arrest him. Defendant’s fellow deputy, Billy Allen, arrived and assisted with the arrest. Defendant tased Baize into submission and completed the arrest.

[W]e reject defendant’s theory that the fifth element — “in fleeing or eluding the person is the cause of, or creates a substantial risk of, physical injury to any person” — was satisfied when Baize resisted arrest after returning to answer the door. For defendant to have had probable cause to arrest Baize for fleeing and evading, he must have had probable cause to believe that all of the elements of the crime were satisfied at the moment he sought the arrest. Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir. 2015). By defendant’s own account, however, the fifth element — Baize’s creation of the risk — was not satisfied until after defendant initiated the arrest and Baize physically resisted. See Trial Tr. vol. II at 160:11-161:5 (defendant admits that he did not make the decision to arrest until “we were trying to bring [Baize] out [and] he resisted”) (PageID # 832-33); Def. Br. at 18 (“The substantial risk of injury occurred when Baize resisted arrest . . . .”). It is therefore impossible, under defendant’s theory, that defendant had probable cause to believe Baize had met all of the elements of fleeing and evading when defendant made the decision to arrest.

Defendant’s body camera shows Baize open his inner door, leaving the screen door shut. Defendant was unable to cross the threshold and touch Baize without opening the screen door himself (which he did), and all the while Baize remained several feet removed from his threshold, inside of his home. Baize was not exposed to the same degree of public view, speech, hearing, and touch as though he was on his porch.

Defendant’s proposed jury instruction is also legally flawed, as it incorrectly suggests that the hot-pursuit exception to the warrant requirement applies any time a suspect retreats into his home, no matter the circumstances…Even if defendant’s proposed instruction contained a properly limited definition of the hot-pursuit exception, defendant fails to explain how the exception applied to his decision to enter Baize’s home. In Kentucky, second-degree disorderly conduct is a misdemeanor, Ky. Rev. Stat. § 525.060(2), and there was no physical evidence of disorderly conduct that Baize could have destroyed.

In 1997, when Corder was an officer with the Louisville PD, a man named John Dennis Wilson accused him of pepper-spraying him in the face as he sat handcuffed in the back of a police car. Notably, Corder’s police report didn’t mention any pepper spray, and he failed to file a use-of-force report in violation of department policy. After Wilson sued him in federal court, Corder admitted everything. The city settled with Wilson for $15,000 ($22,500 in 2016 money). Corder was not punished.On New Year’s Day, 1998, Corder arrested Adrian Reynolds, 34, who was wanted on a domestic violence charge. When other officers arrived on the scene, they found Reynolds with a broken face and Corder’s uniform soaked in blood: Corder had repeatedly beaten Reynolds in the head with his fist and flashlight. An internal affairs investigation cleared Corder, though the arrest made the news when prison screws beat Reynolds to death six days later.Also in January, 1998, Corder was sued by 36-year-old Gary Branham after Corder punched him in the face and pepper-sprayed him while moonlighting as security for an amateur boxing tournament. Although Corder hit Branham with a number of charges, including disorderly conduct, they were all dropped when Corder failed to appear at Branham’s preliminary hearing. Branham’s suit was resolved when a jury found in favor of Corder and the city. Corder was not punished.In October, 2002, Corder pulled a gun on and arrested a man for trying to repossess Corder’s SUV. This earned him his first trip to criminal court. According to the Louisville chief of police, Robert White, who fired Corder in 2003, Corder tried to make a deal with the repo company: in exchange for releasing the arrested worker, they’d let him keep the car.

Defendant argues that permitting cross-examination concerning his lies to internal affairs investigators in 1991 and 1998 violated both his Fifth Amendment right against self-incrimination and Federal Rule of Evidence 608(b). (Def. Br. at 34.) Over defendant’s objection, however, the district court permitted the government to elicit defendant’s testimony admitting these lies. The district court based its ruling on Brown v. United States, 356 U.S. 148 (1958), concluding that defendant’s testimony about his own truthfulness had opened the door to such cross-examination.[...]On the record before us, as well as the authority offered by defendant, we conclude that the district court did not abuse its discretion in ruling that defendant waived his Fifth Amendment right as to his prior statements to police investigators. Defendant’s belief in the veracity of his charges against Baize was a chief issue in the case against him, and he voluntarily took the stand to vouch for that belief. Evidence of defendant’s willingness to lie to other police departments to protect himself from allegations of misconduct is relevant to, and probative of, whether he would lie to the Bullitt County Sheriff’s Office for the same general purpose.

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