from the a-limited-offensive-weapon-that-can-only-be-raised-as-a-defense dept
Probably not the best idea, but it's something some legislators and private companies have been looking to do for years: hack back. Now there's very, very, very nascent federal legislation in the works that would give hacking victims a chance to jab a stick in the hornet's nest or work on their attribution theories or whatever.
A new bill intended to update the Computer Fraud and Abuse Act would allow victims of computer attacks to engage in active defense measures to identify the attacker and disrupt the attack.
Proposed by Rep. Tom Graves (R-Ga.), the bill would grant victims of computer intrusions unprecedented rights. Known as the Active Cyber Defense Certainty Act, the legislation seeks to amend the CFAA, the much-maligned 1986 law that is used in most computer crime prosecutions.
The CFAA amendment [PDF] would (sort of) authorize very limited "hack back" permissions. The powers can only be used for good, so to speak. The attacked can turn the tables slightly by invading the attacker's domain solely for the purpose of determining the person/group behind the attack.
What it won't allow is retribution and revenge, which may come as a disappointment to those who have been brutally breached.
(ii) does not include conduct that—
(I) destroys the information stored on a computers of another;
(II) causes physical injury to another person; or
(III) creates a threat to the public health or safety
That may temper the enthusiasm of supporters, but it's best the victims don't stoop to the level of their attackers, if only because the CFAA is already a hideously out-of-date mess that would be helped NOT AT ALL by endorsing the same behavior it criminalizes elsewhere.
The bill is only a "discussion draft" at this point, so by the time it reaches a vote, it may bear little to no resemblance to this embryo of an idea.
While it may be tempting to give private companies the power to hack attackers, there's always the chance mission creep will turn these permissions into violations. A few years ago, the IP Commission suggested it might be a good idea to allow software companies to "hack" computers owned by those suspected of infringement in order to uncover their identities and the location of the purloined software. The commission suggested the deployment of malware -- something more aligned with the FBI's child porn investigation tactics (which themselves have been found to be of dubious legality) than with what's being suggested here.
But this is only a suggestion. There's still a lot of legislative meat to be put on these bones and it's unlikely the same companies who thought it would be a fine idea to deploy malware against suspected pirates have changed their opinion over the last four years.
Rep. Tom Graves is the person behind the bill and had this to say about it -- part of which is pretty much dead on.
“This bill is about empowering individuals to defend themselves online, just as they have the legal authority to do during a physical assault,” said Graves. “While the bill doesn’t solve every problem, it’s an important first step. I hope my bill helps individuals defend themselves against cybercriminals while igniting a conversation that leads to more ideas and solutions that address this growing threat.”
"Empowering individuals" through federal law can go sideways in a flash. The second half of Graves' statement is better. A conversation does need to take place about responses to security breaches and attacks. But that conversation shouldn't start until those wishing to speak up start doing a much better job locking down their digital valuables. Offense is more fun to play than defense, but defense is where it all should start.
It also should be pointed out this bill is not open season on hackers. It doesn't give companies or individuals explicit permission to hack back, but rather provides them with a defense should they happen to be sued or prosecuted for engaging in this behavior. An affirmative defense is rarely as useful as explicit permission, as anyone who's argued fair use in court can attest. The DOJ has engaged in some very creative readings of the CFAA over the years, and an affirmative defense is only going to go so far in preventing bogus prosecutions.