Exploring the Boundaries: Legal and Ethical Considerations of Generative Artificial Intelligence in Penetration Testing and the CFAA - Pentestmag

Exploring the Boundaries: Legal and Ethical Considerations of Generative Artificial Intelligence in Penetration Testing and the CFAA

Jun 2, 2023

Victoria Walters and Yu Cai, Michigan Technological University

The progress we've seen in Artificial Intelligence (AI) over recent years has been truly remarkable. Generative, cognitive, and conversational AI have found extensive applications and are already in widespread use. As we explore the integration of AI into penetration testing, utilizing tools like PentestGPT and BurpGPT, which are developed on top of ChatGPT, it is essential to consider the legal and ethical dimensions, especially the challenges presented by the Computer Fraud and Abuse Act (CFAA).

The necessity for precise contractual language arises from the outdated nature of CFAA, which serves as a "get-out-of-jail" card for security professionals engaged in penetration testing. Although the 2022 update to the Department of Justice Charging Policy for CFAA cases introduced provisions for "good-faith security research" (9-48.000 - Computer Fraud and Abuse Act, 2022), the law itself has not been amended since 2008 (18 U.S. Code § 1030), highlighting the need for specific language in contracts.

Ensuring the ethical use of AI is crucial to establish its safety, responsibility, and deserving trust. Addressing ethical considerations is seen as the most significant challenge in the AI era, encompassing fairness, accountability, transparency, and privacy. Collaboration among stakeholders is vital to establish policies and guidelines that govern AI development and deployment, aligning it with societal values for the benefit of humanity.

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June 2, 2023

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Victoria Walters and Yu Cai
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