In the recent past, US companies and top notch government agencies have been on the receiving end of very sophisticated cyberattacks and cyberespionage advances from foreign government backed hackers. Cyberattacks against the JPMorgan and other high profile corporation in US prompted the business community to find news way to shore up their defense mechanisms.
More importantly, US cybersecurity firms are showing unusual levels of cooperation in fortifying America’s cyber space and forming a united front in the ever evolving cyber warfare. Some security experts have advocated offensive techniques in dealing with cybercrime including ‘hacking back’ to weaken the intruders systems.
Last month a couple of US firms went on a “hacking back” expedition aimed at cleaning up malwares allegedly from a Chinese government cybercriminal gang. The short lived operation cleaned up over 43000 malware infection but raised serious question on morality and legality of such an operation.
According to security experts from ISight Partners, the offensive operation by iSight and other cybersecurity firms was meant to cause “some level pain” and weaken hacker’s systems by throwing “a large wrench into their engine.”
Security experts agree that ‘hacking back’ could be morally right in some instances but they differ on the legal implications of the offensive strategy. Stewart Baker, a former assistant secretary of homeland security, says hacking back may be morally justified but the legality of such an action was subject to debate. “I think you are morally justified for sure and the probability of being prosecuted is very low,” she concluded.
Us Department of Justice warns against “hacking back’ but does not explicitly say it’s illegal. DOJ “don’t quite say it’s illegal, they say it’s a bad idea,” says Baker says baker who believe ‘hacking back’ for other purpose other than retrieving lost files could carry Legal liability.
“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,” states a report by presidential commission investigating intellectual property theft in US.
Relying on the Legal system to investigate and prosecute cybercriminal has proved ineffective especially when dealing with state-backed hackers. Experts now believe US companies have the capacity to directly hit back at hackers without waiting for court orders.
“We have the capability to hack back,” said Jody Denner, a cybersecurity and digital forensics consultant for Hewlett-Packard. “The same open-source tools that are available to these state-sponsored groups are also available to everyone else.”
However, Kristen Eichensehr, a national security law specialist at the University of California-Los Ageless, says the legality of ‘hacking back’ lies on the victim’s interpretation and extent to which offensive tools are used. In her opinion, hacking backs “describe a variety of actions” some of which are outright illegal. “Depending on where on the spectrum a ‘hacking back’ action is, the private entity’s actions could look a lot like counterespionage, law enforcement, or even military action,” she said in a blog.
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