Hackback Sunday: Skating on Stilts/cyberdialogue

Mar 3rd, 2013 deterrence

On 3/1, Adam Segal (of CFR fame) wrote a very useful blog post for cyberdialogue covering hackback, signaling, and state-society relations.  The article provides a broad overview of the issues with hackback, so I urge you to take a look, but I want to focus on a few specific sections.  Notably:

If [hackback] is to become a legitimate activity, it would have to become a regulated space. In order to prevent vigilantism, the government would have to accredit and review actors, and hold them accountable for their actions. [Dave] Dittrich suggests that many of the rules and norms governing state behavior during war could also apply to the private sector. These would include necessity (engage only in actions necessary to achieve legitimate military objective), distinction (identification of lawful military objectives and avoidance of civilians), and proportionality (prohibition on use of force that exceeds that needed to achieve objective).


That stuck out to me because I’ve been saying the same thing for over a year now.  My proposal is to deputize private companies under the DOJ through an amendment to the CFAA.  In that arrangement, the DOJ would grant “hackback authorization” after a lengthy distinction/proportionality/necessity AND, most importantly, attribution analysis.

I think it’s important to remember that companies are hacking back right now.  If unregulated hackback is as dangerous as all these commentators claim, shouldn’t some sort of regulatory regime be the #1 priority?

Mr. Segal continued:

Even if a country signaled what it thought was a clear distinction between public and private authorities, there is no guarantee that the other side will interpret it as it is intended. In fact, it may be possible that the higher degree of distrust between the two sides the less likely they are to accept that there is any differences between private and state attacks.


In this context, Mr. Segal was discussing hackback under an international law analysis.  Essentially, even if private companies are making the final determination on whether to hackback, why wouldn’t a country like China claim that the USG is actually coordinating counterstrikes?  After reading the Tallinn Manual, I believe that a nation-state hosting a private company engaged in hackback is not responsible for that company’s actions because (1) the hackback is not attributable to the nation-state and (2) private sector active defense is not necessarily illegal under international law.  Having said that, countries like Russia/China will still attribute cyber actions to the USG even when they know the USG had nothing to do with it.  Does that mean we can never implement a domestic hackback regime? Of course not!  After instituting a domestic hackback regime, the USG should seek consensus with a group of like-minded states (perhaps NATO states) that regulated private sector self-defense is not a violation of international law and is not attributable to the host-state.  Start laying the foundation for customary law.  We’ll never win over China on this one, but that doesn’t mean we can’t move ahead with the rest of the international community.

I profess that squaring hackback with international law is much more difficult than squaring it under domestic law.  When I was at the Spooks & Suits conference, I learned that there will be a Tallinn Manual 2.0 which speaks to cyber actions below the use of force threshold.  It would be interesting to see the editors try and tackle this issue.


Via his Skating on Stilts blog, Stewart Baker posted an interesting podcast where he debated Orin Kerr on active defense.  The Federalist Society sponsored the podcast.  I tried to transcribe some of the podcast . . .

A few points from Mr. Baker:

  • Concerns about proportionality (i.e. the intensive care example) are overblown 
  • Sees flexibility under CFAA
  • Who decides whether a particular access is authorized?  The owner of the compromised computer?  Or a court?
  • Law enforcement agencies could experiment with hacking back today
  • Companies are currently facing a chilling effect…regardless of whether hackback is technically legal under the CFAA, companies aren’t going to do en mass unless it is explicitly legalized


  • Doesn’t see flexibility under the CFAA, basic act of hacking (even if you have a good reason for it) violates statute
  • Acknowledges that a few affirmative defenses (i.e. necessity) may apply notwithstanding the CFAA…essentially, there may be specific circumstances where hackback is legal
  • Wants statute that allows some sort of counterhacking with specific circumstances, suggests an amendment to the CFAA which explains those circumstances.  Mentions CFAA Section 1030(f) (the law enforcement exception).
  • If courts did authorize hackback, you’d see more hackbacks from 19 year old kids than you would from big companies
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2 Responses to “Hackback Sunday: Skating on Stilts/cyberdialogue”

  1. […] the hackback debates started.  Companies wanted to hack back against the people hacking their computers.  The federal […]

  2. […] Former blog contributor, “Zach,” proposed deputizing private companies under the Department of Justice (DOJ) through an amendment to the Computer Fraud and Abuse Act (CFAA) pursuant to which the DOJ would grant “hackback authorization” after a substantial Law of Armed Conflict-type analysis.  He also provided a link early in the year to Adam Segal’s blog post on hackback discussing other issues that arise. […]

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