Should US companies hack back? It's complicated, says DHS chief

The Department of Homeland Security wants to make sure private companies are prepared for the next major cyberattack, but it's unclear whether "hacking back" adversaries should be part of it.

During a Senate Judiciary Committee oversight hearing Jan. 16, Sen. Orrin Hatch (R-Utah) asked DHS Secretary Kirstjen Nielsen if active defense was part of the agency's strategy to help protect private companies from cyberattacks. Nielsen said it was, but she steered clear of endorsing "hacking back."

"There is wide disagreement with respect to what [active defense or hacking back] means," Nielsen said. "What we mean is we want to provide the tools and resources to the private sector to protect their systems."

Nielsen noted that DHS this year has "gone to great lengths" to work with the intelligence community to declassify information on malware, botnets and other threats to share with the private sector "so that they can proactively defend themselves before they are in fact attacked."

When asked whether there were legislative barriers preventing the private sector from employing active defense techniques, Nielsen replied,  "It's rather complicated," citing liability and insurance concerns.

"We do need to continue to work with the private sector to understand if there are any barriers that would prevent them from taking measures to protect themselves and the American people," she said.

The hearing stretched over four hours and was dominated by senators questioning the veracity of Nielsen's memory of remarks at a White House meeting at which President Donald Trump, according to multiple participants, complained about immigration from "shithole countries."

The back-and-forth left little room for substantive cybersecurity discussions, but Nielsen did touch on the lack of failsafe mechanisms that could have prevented Hawaii's false ballistic missile alert and DHS priorities for securing election systems.

Sen. Mazie Hirono (D-Hawaii) told Nielsen that the Hawaii emergency management agency's false alarm over the weekend signaling an impending missile attack signified human, system and communication failures. Hirono complained that DHS' lack of direct oversight over state emergency systems has "catastrophic" potential.

Nielsen said DHS only "provides a backbone" through the Federal Emergency Management Agency -- called the integrated public alert and warning system -- that allows for geotargeting and that it's the state's decision to use it.

Nielsen said the January incident in Hawaii has already provided a few lessons, namely better information vetting processes.

"Initial lessons learned: We would work with the states particularly with this threat to ensure they're connected to those who can quickly verify whether that threat is real or not. In that case, that would be the Department of Defense. So we are in active conversations with them to ensure that they can improve their system," she said.

Nielsen also said she was unaware that Hawaii's emergency management agency's alert system didn't have a failsafe mechanism in place to prevent or retract false alerts. She assured Hirono that DHS would work to make sure all states have such mechanisms and that it would work alongside the Defense Department and the Federal Communication Commission to better clarify respective roles for such events.

Senate Judiciary Committee members also grilled Nielsen on DHS' role on election security and protecting against Russian interference.

Nielsen said she believed "Russia in general will continue to try to test our systems, and where they can extract information and perhaps disrupt, they will." She also said DHS would continue working with interagency partners on broader propaganda influence such as social media disinformation campaigns, as well as investigating and preventing breaches of physical IT systems. Nielsen confirmed Russian tampering in the 2016 election but said "no votes were changed" to her knowledge, and 2018 elections will likely see "a variety of actors test our systems."