Can we fight cyber crime like the Untouchables fought Capone?

Recent successful legal action against the Waledac botnet offers some hope that lawyers might succeed where technology has failed in the war against cyber crime.

There appears to be little relief in sight from the relentless onslaught of spam that continues to deliver malicious code and phishing lures to our inboxes day in and day out. According to Symantec’s “State of Spam and Phishing Report” for August, spam made up more than 92 percent of e-mail last month. The percentage of spam has fluctuated from a low of about 79 percent in November to more than 95 percent, but it has held pretty steady around 90 percent for most of the past year.

But there might be a small patch of light on the horizon, coming from — of all places — the U.S. District Court for the Eastern District of Virginia, where a judge has recommended that ownership of 276 Internet domains used by the Waledac botnet be turned over to Microsoft. If the judgment comes down from the court, it would effectively cut off the botnet’s command and control network.

That action, part of Microsoft’s Operation b49 to use existing federal law against organized cyber crime, will not by itself stop the criminals. Communications within the Waledac botnet have been effectively shut down since March, soon after Microsoft first went to court. But volumes of spam — one of the most effective means of delivering malware and opening doors for criminals — bounce back every time a botnet is taken down. However, the technique of attacking the criminals eventually could prove more effective than improving spam filters and antivirus engines.

Operation b49 was an effort by Microsoft and other members of the Botnet Task Force to document the scope and source of spam being distributed by hundreds of thousands of Waledac-infected computers. The company estimated the botnet’s capacity at more than 1.5 billion messages a day and documented about 651 different spam messages sent to Hotmail e-mail accounts alone during three weeks in December.

Microsoft filed suit Feb. 22 alleging violations of the Computer Fraud and Abuse Act, the CAN-SPAM Act, the Electronic Communications Privacy Act, and other federal fraud and trademark protection laws. It alleged that the unnamed defendants controlled the domains used for command and control of the botnet and for luring unsuspecting victims to malicious sites.

A preliminary injunction was granted in February that effectively cut the domains off from the .com top-level domain, and on Sept. 8, a magistrate judge recommended that the court grant a default judgment to permanently give Microsoft ownership of the domains. The defendants (John Does 1 through 27) have two weeks to object to the decision before the judgment becomes final, and because they have not yet appeared in court or responded to the suit, an objection is unlikely.

Although Microsoft appears on its way to winning this battle, we are still a long way from winning the war. Cyber crime will not stop until it becomes unprofitable. Right now, it apparently is very profitable. The cost of finding and exploiting vulnerabilities, finding ways around defenses, and conducting social engineering attacks is minuscule compared to the potential rewards from successfully compromising computers. Securing our PCs is unlikely to change that equation.

That does not mean we should give up on IT security. Properly secured desktops, servers and networks are important lines of defense, but they should be the last lines, not the first. Success will come when we increase the stakes and the odds against the criminals. It is worthwhile to remember that the federal team called the Untouchables brought down Al Capone not with Tommy guns but with federal tax laws.

NEXT STORY: Google Apps government reach grows

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