Penetration Testing: Legal Best Practices and Guidelines
This paper examines the legal and procedural considerations surrounding penetration testing in network security audits. It outlines best practices recommended by the SANS Institute, including the importance of written authorization, legal representation, and careful timing of unannounced tests. The paper also addresses state-specific legal exposure, focusing on Hawaii's statutes covering computer damage in the first degree and computer fraud in the second degree. The conclusion emphasizes that thorough documentation and explicit written agreements are essential safeguards for auditors and organizations conducting penetration testing engagements.
- Introduction to Penetration Testing: Overview of penetration testing and its legal complexities
- Best Practices for Penetration Testing: SANS Institute guidelines and procedural safeguards for auditors
- Hawaii State Computer Crime Laws: Hawaii statutes on computer damage and fraud felony classifications
- Conclusion: Documentation and written agreements as essential risk mitigation
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What makes this paper effective
- Combines practical procedural guidance with specific legal statutes, grounding abstract security concepts in real legal consequences.
- Uses a structured bullet-point format to present SANS Institute guidelines clearly, making complex compliance requirements easy to parse.
- Grounds the discussion in a concrete jurisdiction (Hawaii), illustrating how general best practices intersect with state-specific law.
Key academic technique demonstrated
The paper demonstrates applied legal analysis in a technical context. By mapping penetration testing activities onto specific criminal statutes — computer damage in the first degree and computer fraud in the second degree — it shows how practitioners must evaluate technical actions through a legal lens before proceeding. This cross-disciplinary approach is essential in cybersecurity compliance writing.
Structure breakdown
The paper opens with a brief introduction establishing why penetration testing requires careful handling, then moves into SANS Institute best practices organized as enumerated guidelines. A dedicated section addresses Hawaii's relevant computer crime statutes with specific felony classifications. The conclusion synthesizes the argument by stressing documentation and written agreement as the primary risk-mitigation tools. The structure is tight and functional, appropriate for a professional policy or compliance brief.
Introduction to Penetration Testing
The use of penetration testing to evaluate the security and safety of a network is a common practice among many firms. It is often standard procedure not to inform the relevant staff and personnel about what is about to occur, so that they are tested based on what they would normally be doing. However, there are legal and procedural minefields associated with such testing, and all parties involved must be careful to address every requirement before proceeding too deeply. While penetration testing needs to be as complete and realistic as possible, certain precautions and preparatory steps are essential.
Best Practices for Penetration Testing
As one might expect, the most fundamental requirement for penetration testing is explicit permission to do so. It is important, however, to define what permission means in the context of a "surprise" penetration testing engagement. The standards relating to this are established in large part by the SANS Institute, which recommends all of the following:
- Ensure that the auditor conducting the penetration testing is represented by legal counsel. This facilitates the invocation of attorney–client privilege should it become necessary.
- The audit arrangement and agreements should be treated as a formal professional services engagement.
- The timing of an unannounced test should be planned very carefully. Obvious times to avoid include month-end processing periods and other peak operating hours.
- The audit and the situations it creates should not generate more problems than it solves.
- There must be a firm, specific, written agreement covering what the auditor is authorized to do, what data they are permitted to retain, and all related parameters (Kassner, 2015).
The above constitutes a general guideline. As one might expect, there are often state-specific laws that may apply depending on the situation. Auditors operating across different jurisdictions should review applicable statutes before beginning any engagement to ensure full compliance with local law.
Conclusion
It is fairly clear that so long as penetration testing is not conducted at the wrong time and is authorized by the owners and controllers of the network system, great care must still be taken to document precisely what shall be done, what is authorized, and how it will be carried out. Any deviation from those agreed-upon details should be mutually approved and recorded in writing. Thorough documentation and explicit written agreements remain the primary safeguards for auditors and the organizations they serve, providing legal protection and clarity for all parties involved in a network security audit.
References
Iron Geek. (2017). State hacking/computer security laws. Irongeek.com. Retrieved 8 May 2017, from https://www.irongeek.com/i.php?page=computerlaws/state-hacking-laws
Kassner, M. (2017). Don't let a penetration test land you in legal hot water. TechRepublic. Retrieved 8 May 2017, from http://www.techrepublic.com/article/dont-let-a-penetration-test-land-you-in-legal-hot-water/
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