It's Time for Cyber Policy to Leapfrog to the Digital Age

In Rise of the Machines, Thomas Rid details the first major digital data breach against the US government. The spy campaign began on October 7, 1996, and was later dubbed Moonlight Maze. This operation exfiltrated data that, if stacked, would exceed the height of the Washington Monument.  Once news of the operation was made public, Newsweek cited Pentagon officials as clearly stating it was, "a state-sponsored Russian intelligence effort to get U.S. technology".  That is, the US government publicly attributed a data breach aimed at stealing vast amounts of military and other technology trade secrets.  

Fast-forward twenty years, and on October 7, 2016, ODNI and DHS issued a joint statement noting, “The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from US persons and institutions, including from US political organizations.” It’s been twenty years, and our policies have not yet evolved, leaving adversaries virtual carte blanche to steal intellectual property, classified military information, and personally identifiable information. They’re able to conduct extensive reconnaissance into our critical infrastructure, and hack for real-world political impact without recourse. This recent attribution to Russia, which cuts at the heart of democratic institutions, must be a game-changer that finally instigates the modernization of policy as it pertains to the digital domain.

Despite the growing scale and scope of digital attacks, with each new record-breaking breach dwarfing previous intrusions, this is only the fourth time in recent years that the US government has publicly attributed a major breach. Previous public attribution resulted in the indictment of five People’s Liberation Army officials, economic sanctions against North Korea following the Sony breach and earlier this year the indictment of seven Iranians linked to attacks on banks and a New York dam. As breach after breach occurs, those in both the public and private sectors are demanding greater capabilities in defending against these attacks.

Unfortunately, much of the cyber policy discussion continues to rely upon frameworks from decades, if not centuries, ago and is ill equipped for the digital era. For instance, Cold War frameworks may provide a useful starting point, but nuclear deterrence and cyber deterrence differ enormously in the core features of Cold War deterrence – numbers of actors, signaling, attribution, credible commitments, and so forth. Unfortunately, even among those highest ranking government officials there continues to be comparisons between nuclear and cyber deterrence, and so we continue to rely upon an outdated framework that has little relevance for the digital domain.

Some prefer to look back not decades, but centuries and point to Letters of Marque and Reprisal as the proper framework for the digital era. Created at a time to legally empower private companies to take back property that was stolen from them, they are beginning to gain greater attention as ‘hacking back’ also grows in popularity in the discourse. Nevertheless, there’s a reason Letters of Marque and Reprisal no longer exist. They fell out of favor, largely because of their escalatory effect on international conflict, during an era that didn’t even come close to the scope and scale of today’s digital attacks, or the interconnectivity of people, money and technologies. Similarly, technical challenges further complicate retaking stolen property.  Adversaries can easily make multiple copies of the stolen data and use misdirection, obfuscation, and short-lived command and control infrastructure.   This confounds the situation and heightens the risk of misguided retaliation.

So where does this leave us? The Computer Fraud and Abuse Act (CFAA) from 1986 remains the core law for prosecuting illegal intrusions. Unfortunately, just like the Wassenaar Arrangement and definitions of cyber war, the CFAA is so vaguely worded that it risks both judicial over-reach as well circumvention.  This year’s Presidential Policy Directive 41 is essential and helps incident response but has no deterrent effect. In contrast, Executive Order 13694 in 2015, which basically sanctions people engaging in malicious cyber activity, is a start.  It clearly signals the exact repercussions of an attack, but has yet to be implemented, and thus lacks the deterrent effect. 

Similar steps must be taken to further specify the options available and that will be enacted in response to the range of digital intrusions. Too often it is assumed that a cyber tit for tat is the only viable option. That is extremely myopic, as the US has the entire range of statecraft available, including (but not limited to) cutting diplomatic ties, sanctions, indictments and, at the extreme, the military use of force. The use of each of these must be predicated on the target attacked, the consequences of that attack, as well as the larger geopolitical context.

Clearly, it is time for our policies to catch up with modern realities, and move beyond decades of little to no recourse for adversaries. This must be a high priority, as it affects the US as well as our allies. Last year’s attack on the French TV network, TV5Monde, came within hours of destroying the entire network. The attacks on a German steel mill, which caused massive physical damage, as well as the Warsaw Stock Exchange, not to mention the attacks on the White House, State Department and Joint Staff unclassified emails systems, have also been linked to Russia.

The world has experienced change at a more rapid pace arguably than any other time in history, largely driven by the dramatic pace of technological change. At the same time, our cyber policies have stagnated, leaving us unprepared to effectively counter the digital attacks that have been ongoing for decades. Given both the domestic and global implications, the US must step forward and offer explicit policy that clearly states the implications of a given attack, including consideration of targets, impacts of the attack, and the range of retaliatory responses at our disposal.

To be fair, balancing between having a retaliatory deterrent effect and minimizing escalation is extremely difficult, but we haven’t even really begun those discussions. Absent this discourse and greater legal and policy clarity, the intrusions will continue unabated. At the same time, many in the private sector will continue to debate the merits of a hacking back framework that has serious escalatory risks, and likely is ineffective.  The next few weeks are extremely important, as the Obama administration weighs the current range of options that cut across diplomatic, information, military and economic statecraft. Hopefully we’ll see a rise in discourse and concrete steps that begin to address viable deterrent options, and signal the implications of digital attacks that have hit our economy, our government, and now a core foundation of our democracy.


*Note: This post was updated on 10/12/2016 to also include the indictment against seven Iranians.