[parsimo2010]

It’s not about the techniques used, it’s about the intent of the functions. Remember that we’re in the legal domain and sometimes a common sense argument prevails even if there are some potential holes (if a hole is discovered, a future court case can worry about it). Port scanning is like looking at the outside of a house and noting where the doors and windows are. Brute forcing a password is like picking a lock to gain access to something, or possibly identity theft to authenticate yourself as someone else. Judges can easily understand the difference even if the technical method might be similar. Nobody is going to believe you “port scanned” your way into someone’s online banking access and took money out of their account.

[chx]

Ah yes, mens rea. "knowingly" "intentionally" "knowingly and with intent" are phrases used in the law text. Thanks for reminding me.