White House Endorses Private Industry Counter-Cyber Operations

Cyber risks are greater than ever. Both public and private entities are regularly subject to cyberattacks. Sometimes companies fend off cyberattacks successfully; other times result in leaked data, ransomware attacks, or stolen funds. Part of what makes these attacks difficult to combat is their decentralized nature. Criminal groups from all over the world perpetrate these attacks. They are often based in countries where U.S. courts have no jurisdiction.  The White House is hoping to tackle these cyberthreats with a new program. This program will effectively deputize private industry, allowing them to carry out counter-cyber operations in conjunction with the government. A recent WilmerHale memo provides details:

“Under the program, participating companies would contract with the Department of Justice or the Department of Homeland Security and would be authorized to conduct “Cyber Surveillance Operations” and “Cyber Effects Operations” against targets approved by the government. The memorandum defines those activities broadly to include both intelligence collection activities and operations that may disrupt, deny, degrade, or manipulate targeted systems.

Importantly, the memorandum does not appear to authorize private-sector companies to conduct independent “hack back” operations. Rather, authorized activities must be conducted pursuant to government approval, supervision, and operational control. Critical details of the program will be addressed through future implementing guidance.”

While stopping short of allowing private companies to go full “cowboy” the program is expected to setup structured public-private partnerships. It is unclear how this program differs from current government contracting, but details released through guidance documents are expected to clarify matters. Using private industry to conduct counter-cyber operations may prove useful, but the efficacy will largely come down to the details of the program.