Legalizing Private Hack Backs leads to Federal Risks

During the last year several op-ed articles and commentaries have proposed that private companies should have the right to strike back if cyber attacked and conduct their own offensive cyber operations.

The demarcation in cyber between the government sphere and the private sphere is important to uphold because it influences how we see the state and the framework in which states interact. One reason why we have a nation state is to, in a uniform and structured way, under the guidance of a representative democracy, deal with foreign hostility and malicious activity. The state is given its powers by the citizenry to protect the nation utilizing a monopoly on violence. The state then acts under the existing laws on behalf of the citizens to ensure the intentions of the population it represents. These powers create an authority that federal government utilizes to enforce compliance of the laws and handle our relations with foreign powers. If the federal government cannot uphold the authority, legitimacy and confidence in government will suffer. The national interest in protecting legitimacy and authority and to maintain the confidence in the federal government is by far stronger than the benefits of a few private entities departing on their own cyber odysseys to retaliate against foreign cyber attacks.

I would like to visualize the importance of demarcation between government and private entities with an example. A failed bank robbery leads to a standoff where the robbers are encircled by government law enforcement. The government upholds its monopoly on violence based on laws that permit the government, on behalf of the people, to engage the robbers in a potential shootout. All other citizens are instructed to leave the area. The law enforcement officers seek to solve the situation without any violence. This is how we have designed the demarcation between the government and the private sphere in the analog world.
If the US decides to allow companies to strike back on foreign cyber attacks, then the US has abandoned this demarcation between nation state and private sphere. Going back to the bank robbers that are surrounded by law enforcement, using the logic of the private cyber retaliation, any bank customer who had an account in the robbed bank could show up at the standoff and open fire at the robbers at their own discretion and depart directly afterward leaving the police to sort out the shootout and the aftermath with no responsibility for the triggering event.
Abandoning the clear demarcation between government and private sphere leads to entropy, loss of control, and is counterproductive for the national cyberdefense and the national interest.
The counter argument is that the private companies are defenseless against cyber attacks and therefore they will have the right to self-defense.
The Commission on the Theft of American Intellectual Property published a report that was a strong proponent of allowing private companies to strike back and even retaliate against cyber attackers. According to the commission these counter strikes should be conducted as follows: “Without damaging the intruder’s own network, companies that experience cyber theft ought to be able to retrieve their electronic files or prevent the exploitation of their stolen information.”

The proponents for private cyber retaliation base their view on several assumptions. First, that the private company can attribute the attack and determine who is attacking them. The second assumption is that the counterstriking companies have the cyber resources to engage, even if it is a state-sponsored organization on the other end, and that there will be no damages. A third hidden assumption is that the events do not lead to uncontrolled escalation and that the cyber interchanges only affect the engaged parties.

An attacker has other options and can seek to attack other entities and institutions as a reprisal for the counterattack. If the initial attacker is a state-sponsored organization in a foreign country, multinational companies can have significant business and interests at risk if the situation escalates. Private companies will not be responsible for the aftermath and the entropy that can occur undermines the American stance and the nation loses its higher ground in challenging the state sponsors behind the cyber attacks in the framework of the international community.
The answer to who should hack back, if deciding to do so, is simple; it should be the federal government for the same reason that you would not fly on a passport issued by your neighbor across the street. Only the federal government is suitable to engage foreign nations and the private entities therein.

The unaddressed core problem is that we have not yet been able to create mechanisms to transfer cyber incidents from the private realm to the authorities. This limited ability during the short timeframe an attack occurs leads to initially a cyber attacker’s advantage, but this will be solved over time and does not outweigh the damages from an undermined federal authority due to entropy in cyber.

 

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