Congress should issue letters of marque and reprisal to U.S. companies at risk of being hacked.
Governments spy on each other (c’est la vie), but polite governments don’t engage in industrial espionage. Nonetheless, according to The Economist, an American security firm has observed Chinese Army unit 61398 hacking “at least 141 companies spanning 20 major industries.” Speaking of American spying, former National Intelligence director Michael McConnell told Politico, “We don’t break into an economic competitor and take their business plans. For the Chinese, that’s their primary focus.” According to CNN, analysts credit “illicit acquisition of technology” with having allowed China to “modernize quickly, bypassing problems that would otherwise require years of research and development.”
The Chinese aren’t the only culprits. Over the last few years, North Korea has reportedly doubled its supply of military hackers, and according to a National Counterintelligence Executive report, “Russia’s intelligence services are conducting a range of activities to collect economic information and technology from U.S. targets.” But according to the same report, “Chinese actors are the world’s most active and persistent perpetrators of economic espionage. U.S. private sector firms and cybersecurity specialists have reported an onslaught of computer network intrusions that have originated in China.”
The Chinese government denies being involved in hacking, and says “such reports and comments are irresponsible and are not worth refuting.” Consequently, they haven’t been refuted. The problem persists.
In May, the U.S. indicted five Chinese military hackers, but they probably won’t be traveling stateside to face trial. America doesn’t want a trade war, or a cyber war, or a real war. So where does that leave us?
According to the National Counterintelligence Executive, “tens of billions of dollars of trade secrets, technology and intellectual property are being siphoned each year from the computer systems of U.S. government agencies, corporations and research institutions.” According to the Chinese government, the Chinese government isn’t involved. The Chinese hackers are operating beyond national boundaries, floating around on the high seas of the Internet. If they are working, as China says, without government sanction, I say that makes them pirates. We, the people, are equipped to deal with pirates.
Article 1, Section 8 of the U.S. Constitution enumerates the powers of Congress, which include the powers “to define and punish Piracies” and to “grant Letters of Marque and Reprisal.”
Letters of marque and reprisal are writs issued by governments for private organizations to attack enemies, and to respond to attacks, without direct government oversight. They’re thought of as creating privateers — government-sanctioned pirates. But strictly, a letter of marque permits a merchant ship to arm and defend itself against attacks from warships, privateers, and pirates. And in the process, take prizes.
Congress should use its power “to define piracy” to define cyber-piracy and issue letters of marque to hacked companies, licensing them to defend themselves. Private American programmers working for private American companies should be allowed to follow hackers back to the hackers’ servers of origin — and to sack and pillage whatever they can, using, sharing, or selling what they find. (They would be expected, of course, to be discreet in handling American IP and trade secrets in exchange for their letters of marque: quid pro quo.) I suspect there will be plenty of American software engineers willing to do some hacking for sport and profit.
This is a rational response to robbery. Plus, according to the Chinese foreign ministry, “China firmly opposes cyber-hacking. This is what we say and what we have been doing.” So, I imagine they’ll welcome the idea with open arms.
— Josh Gelernter is a writer in Connecticut.