Private Sector Offensive Cyber Operations: A Framework for Policy

The Need for New Cyber Tools

• ⚠️ The current cybersecurity tools are insufficient to manage escalating threats, evidenced by the ongoing ransomware epidemic and nation-states operating with near impunity.
• 💡 The private sector is exploring hackback as a potential additional tool to address these persistent cyber threats.
• 📈 The value of S&P 500 companies has shifted dramatically from tangible assets to intangible assets like software and data, making them prime targets for cyber actors.

Framework for Private Sector Cyber Operations

• 🎯 The authors propose a framework to guide policy discussions on private sector involvement in offensive cyber operations, focusing on defining policy objectives.
• ⚖️ Key considerations include determining the appropriate scope of authorized activities, including permissible actions and targets.
• ⚠️ Addressing complex legal and liability considerations, especially concerning harm to innocent third parties, is crucial.

Defining Cyber Operations

• 🛡️ Defensive operations occur on one's own network, while offensive operations involve touching an adversary's or intermediary network.
• 🤔 Active cyber defense is a complex term, sometimes referring to hackback or actions on one's own network to disrupt an adversary's ongoing operation.
• 📜 Clarifying legal boundaries, particularly under the Computer Fraud and Abuse Act (CFAA), is essential for any new regime.

Timing and Motivation

• 🏛️ There is increased interest in expanding offensive cyber operations, with discussions happening on Capitol Hill and from the White House.
• 🚀 The scale and scope of cyber disruptions are driving the conversation, with a desire to explore potential deterrent value from private sector actions.
• 💡 Both government and private sector experiences inform the analysis, highlighting the need for thoughtful consideration of complex issues.

Policy Objectives and Operational Models

• 🎯 Primary goals for private sector involvement include augmenting government capacity and enabling quicker responses.
• 🌐 The vibrancy of the U.S. private sector is a strategic advantage that can be leveraged for national security and resilience.
• ⚙️ Operational models range from light-touch licensing to heavy government involvement, each with trade-offs in speed, control, and bureaucratic friction.

Legal and International Challenges

• 📜 The Computer Fraud and Abuse Act (CFAA) and the Electronic Communications Privacy Act (ECPA) are significant legal hurdles requiring congressional action for reform.
• 🏴‍☠️ Letters of mark and reprisal, a historical concept, are being discussed for cyber operations, though their applicability and international recognition are uncertain.
• 🌍 International law and liability in foreign jurisdictions present major challenges, particularly regarding collateral damage and the potential for private actors to be treated as state actors.

The Future of Cyber Security

• 📉 The current situation suggests that government action alone has been insufficient to meet the scale and aggression of cyber threats.
• 💡 Private sector involvement in offensive cyber operations is seen as one tool among many, but not a silver bullet.
• ⚠️ A comprehensive solution requires addressing digital vulnerabilities, technology quality, and the burden of security on end-users, alongside potential offensive capabilities.