Imagine: You are the CEO of a multi-million dollar company. Aware of the current cyber climate, you budgeted out a large chunk of your company’s money for cybersecurity. This morning you received a phone call from the head of security alerting you to a cyber breach. The good news is that your security team was able to discover the breach before a lot of damage could be done, and they were able to determine the source. The head of security just told you that he has the ability to perform a counter-attack against the cybercriminals that will shut down their equipment, preventing further damager to your network. What do you do?
Well, your primary legal option is to call law enforcement and let them take over. Unfortunately, law enforcement does not have jurisdiction where a lot of these cybercriminals operate and local police are often uncooperative. Law enforcement is also constrained by the law: they can investigate but they do not have the authorization to impose punishment on their own.
This dilemma has led many to lobby for permission to “hackback” against cybercriminals on their own. The Guardian reported on the demand for this alternative as well as legal obstacles and ramifications. According to the report, senior banking officials, frustrated by sustained hacking campaigns from attackers in other countries, lobbied at February’s Davos forum for permission to track down hackers’ computers and disable them. The former director of national intelligence on the Obama administration, Dennis Blair, considered explicitly authorizing cyber strikeback operations in a 2013 report he co-authored from the US Commission on the Theft of American Intellectual Property.
So what is standing in the way of companies taking matters into their own hands?
The Law
The law forbids hacking, even in self-defense. The report mentioned the Computer Misuse Act in the UK and the Computer Fraud and Abuse Act in the US as examples of legal roadblocks preventing private hackback operations.
The current protocol is to contact law enforcement when you have been hacked. However, as highlighted above, there are problems with this protocol: law enforcement seldom have jurisdiction, local police are often uncooperative, and even when law enforcement has jurisdiction, their role is investigatory.
The report highlighted additional concerns that come with information sharing:
Today if there is an attack, there’s a reluctance to share that information because it could be used against that institution in a civil suit.
Due to the above issues, the desire for legal reform in this area is understandable. However, would legal permission to hackback solve the problem or create new ones?
Slippery Slope if Hacking Back Allowed:
According to the report, if private cyber counter measures were allowed, there could be significant unintended consequences. The main problem is attribution. Jon Ramsey, chief technology officer at Dell’s security unit, warns:
Without accurate traceback there is a significant and substantial risk that organizations start attacking legitimate organizations. Where would this end? It would cascade out of control.
Unfortunately, this slippery slope concept has not stopped financial institutions. In December, Bloomberg reported that banks had considered using offshore contractors to carry out a counter-attack, after a widespread attack on the US banking community that US officials believed was mounted from within Iran.
So what is the solution to this growing problem?
Potential Solutions
The report examines potential solutions through the lens of several experts in the field. John Carson, the executive vice president of the technology policy division of the US Financial Services Round Table, argues that banks should simply share information about hacks on their systems with the government to help prepare an industry-wide response. According to the report, legislators have introduced two bills that would effectively prevent legal reprisal for information sharing.
Former director of national intelligence Dennis Blair raised the question of whether a government would consider refusing to prosecute law enforcement in the event of a cyber strikeback. According to the report, Blair remains convinced that strikebacks are a useful deterrent and he is “less concerned with the legal debate than he is with the fact that western firms are being fleeced by shadowy cyber-crooks half a world away.”
A solution is necessary, and according to the report, the stakes are high:
At stake are not only millions of dollars in intellectual property, but also elements of critical national infrastructure, and even free speech.
For the full report, click here.
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