DOJ sees a path to legal hacking

A senior Department of Justice official said a framework to clarify how private companies can conduct information security research without running afoul of the Computer Fraud and Abuse Act is gaining traction, but that the government is content for now to keep the guidance broad and allow “natural momentum” from the private sector to determine specific policies.

Speaking Oct. 18 at a CyberScoop conference in Washington, D.C., Leonard Bailey, DOJ's senior counsel for the National Security, Computer Crime and Intellectual Property Section, provided an update on the vulnerabilities disclosure program for online systems that was unveiled in July 2017. Bailey said the government’s goal for the program was to provide enough direction to decrease "opportunities for disagreement that may result in litigation" without prescribing a particular set of policies.

"The model of going out and addressing people and urging them individually to adopt a program doesn't scale very well," said Bailey. "The goal is to get out guidance, have people consume it, and have what seems to be a natural momentum for people to look at these, decide whether it fits for their type of organization, adopt them and maybe garner greater comfort as these programs proliferate and are done successfully without… large incidents."

Timothy Edgar, former White House director of privacy and civil liberties under the Obama administration, told FCW that the DOJ framework was a helpful starting point in terms of acknowledging the legal uncertainties caused by fuzzy language in the CFAA.

Under the current language of the law, it is illegal to access a computer without authorization or "in excess of authorization," a clause that has generated uncertainty about what constitutes legal or criminal forms of hacking.

Edgar, a senior fellow at Brown University's Watson Institute for International and Public Affairs, said information security researchers ultimately need clearer statutory reforms, not just guidance, to avoid breaking the law.

The framework "is a good first step but it doesn't really define criminal conduct narrowly enough to give a real binding effect in the way that revising the law would," said Edgar.

Bailey said DOJ is considering a recent bill to allow private companies to "hack back" when their networks are breached.

The Active Cyber Defense Certainty Act, introduced by Rep. Tom Graves (R-Ga.), would amend that clause to permit organizations to conduct certain forms of active or cyber defense, or retaliatory attacks, against groups hacking into their systems.

"I think the discussion we’ll see around [the bill] is what the difficulty is in laying out this sort of authority alongside potential harms that could result, and I look forward to kind of thinking about that and trying to figure out with others what that balance looks like," said Bailey.

One of those potential harms could take the form of companies misidentifying their attacker and causing collateral damage. The current version of the bill requires companies to notify the FBI and receive confirmation before engaging offensive cyber measures, but it is not uncommon for many hackers to mimic the tactics and methods of other organizations or nation-states in order to mask themselves and throw forensic investigators off their scent.

Tom Gann, chief public policy officer for McAfee, said Graves' bill has gone through several revisions to address previous loopholes and he expects the language to change further to clarify what kind of guidance a company would need from the government. While he is still evaluating the legislation, Gann said solving the problem of how to accurately identify and attribute cyber attacks is one of main questions hovering over the bill in its current form.

"If you get the attribution wrong and you end up hacking back on a nation state, that could have serious consequences down the road," said Gann.

Correction: This piece was updated Oct. 19 to clarify that McAfee's Tom Gann is still evaluating the Active Cyber Defense Certainty Act and does not have a position on the legislation.