Cyber Privateers: Should the US Legalize Hacking Back Against Attackers?
In the relentless battle against cybercrime, businesses and government agencies often find themselves on the defensive. Ransomware attacks, data breaches, and state-sponsored espionage are escalating, leaving many victims feeling powerless. In response to this growing threat, a controversial and historically-rooted idea is being debated in Washington: authorizing private citizens to “hack back” against foreign adversaries.
This proposal seeks to revive the concept of “letters of marque and reprisal” for the digital age. This would create a new class of government-sanctioned civilians, or “cyber privateers,” empowered to conduct offensive cyber operations against those who have attacked them. While the idea is intended to create a powerful deterrent, it raises significant questions about escalation, collateral damage, and the future of cyber warfare.
What are Letters of Marque?
To understand the modern proposal, it’s essential to look at its historical precedent. A letter of marque and reprisal was a government license issued in the age of sail, authorizing a private person—a privateer—to attack and capture enemy vessels. This was a way for a nation to augment its naval power without the expense of building a massive fleet. Privateers were not pirates; they operated under the authority of their government and were expected to follow specific rules.
The core idea was to allow victims of foreign aggression (like a merchant whose ship was stolen) to legally seek retribution and recover their losses by seizing assets from the aggressor nation or its citizens.
The Modern Proposal: Hacking Back with a License
The new cybersecurity proposal aims to apply this centuries-old concept to the digital realm. Under this framework, the U.S. government could issue a cyber letter of marque to a qualified individual or company that has been the victim of a significant cyberattack originating from a foreign country.
Key elements of the proposal include:
- Government Authorization: This would not be a free-for-all. Companies couldn’t just decide to launch retaliatory attacks. They would need to apply for and receive explicit permission from the U.S. government.
- Strict Vetting: Applicants would undergo a rigorous review process to ensure they have the technical capability and ethical framework to conduct such operations responsibly.
- Focus on State-Sponsored Actors: The primary targets would be foreign hackers and cybercriminals operating with the knowledge or support of their governments, particularly from nations that refuse to cooperate with U.S. law enforcement.
- Retaliatory Actions: Authorized actions could range from simply identifying attackers and retrieving stolen data to actively disabling the infrastructure used in the original attack.
The Argument For: A New Deterrent in Cyber Warfare
Proponents argue that authorizing cyber privateers could fundamentally change the dynamics of cybersecurity. The primary benefits could include:
- Creating a Powerful Deterrent: Adversaries who believe they can act with impunity might think twice if they face a real threat of direct, swift retaliation from a highly-skilled private sector.
- Leveraging Private Sector Talent: The U.S. is home to the world’s most advanced cybersecurity experts. This proposal would unleash that talent, which currently operates with one hand tied behind its back, for national defense.
- Shifting the Cost to Attackers: Currently, victims bear the entire cost of a cyberattack. Hacking back would impose a direct cost on the attackers, disrupting their operations and making cybercrime less profitable.
The Argument Against: Risks of Escalation and a Digital Wild West
Despite the potential benefits, critics warn of severe and unpredictable consequences. The risks are substantial and cannot be easily dismissed.
- The Problem of Attribution: In cyberspace, it is notoriously difficult to be 100% certain who is behind an attack. A retaliatory strike based on faulty intelligence could target the wrong entity, an innocent third party, or even a friendly nation, leading to a major diplomatic crisis.
- Risk of Escalation: A “hack back” operation could easily spiral out of control. A foreign state could interpret a private-sector counterattack as an act of war by the U.S. government, triggering a broader conflict that extends beyond the digital realm.
- Collateral Damage: Offensive cyber operations can have unintended consequences, potentially damaging critical infrastructure like power grids, financial systems, or healthcare facilities, affecting innocent civilians.
- Lack of Control: Once a private entity is authorized to conduct an offensive operation, it becomes difficult for the government to maintain full control over its actions, tools, and targets.
Actionable Security Tips for Businesses Today
While the debate over cyber privateers continues in policy circles, it is not a strategy that any company can or should consider today. Conducting your own “hack back” operation is currently illegal and could expose your organization to severe legal and financial penalties.
Instead of considering offensive measures, businesses must focus on building a robust defensive posture. The best way to win the fight is to not be a victim in the first place.
- Strengthen Your Defenses: Implement multi-factor authentication (MFA) across all systems, maintain a rigorous patch management program, and deploy advanced endpoint detection and response (EDR) tools.
- Develop an Incident Response Plan: Know exactly what to do when an attack occurs. Your plan should include steps for containment, eradication, and recovery, as well as clear protocols for communicating with law enforcement, customers, and stakeholders.
- Train Your Employees: Your staff is your first line of defense. Conduct regular cybersecurity awareness training to help them recognize phishing attempts, social engineering, and other common threats.
- Work with Law Enforcement: If you are the victim of an attack, immediately contact the appropriate law enforcement agencies, such as the FBI. They have the resources and legal authority to investigate and pursue cybercriminals.
The proposal for cyber letters of marque highlights the growing frustration with the current state of cybersecurity. While it remains a deeply controversial idea, the conversation itself underscores a critical reality: defending against sophisticated cyber threats will require innovative, whole-of-nation solutions that bridge the public and private sectors. For now, however, the focus must remain on strengthening defenses and adhering to the rule of law.
Source: https://go.theregister.com/feed/www.theregister.com/2025/08/21/congressman_proposes_bringing_back_letters/
