Fighting cyber espionage, legally

Instead of trying to tackle foreign governments or hack-proof their own systems, Americans could use the force of the law to neuter cyber espionage by eliminating much of the incentive to hack.

Stewart Baker

Attorney and former Department of Homeland Security official Stewart Baker argues that a digital rule of law could be surprisingly effective.

Attorney and former Department of Homeland Security official Stewart Baker thinks so. The world might be friendlier to a digital rule of law than is commonly supposed, Baker asserted at a Dec. 4 breakfast sponsored by the American Bar Association. He pointed to Chinese President Xi Jinping's willingness to agree to international cyber accords and anti-hacking crackdowns within the People's Liberation Army as recent examples

Instead of going after the Chinese government, American companies and agencies could instead look to foreign firms.

"[Suing the Chinese government] is probably not your best bet anyway because the Chinese government will just, you know, stay offshore and thumb its nose at you," Baker said. "You're trying to dry up the market for cyber espionage rather than stop the cyber espionage directly, which is, that's what deterrence is all about."

Lawsuits, in other words, could help kill the cyber espionage market.

Baker said the Computer Fraud and Abuse Act, the Uniform Trade Secrets Act and Section 337 of the Smoot-Hawley Tariff Act all contain provisions related to stolen trade secrets that American firms could use to block foreign goods from the American marketplace.

Foreign firms are interested in stolen intellectual property so they can sell goods based on it, Baker noted. If they can't sell those goods in the world's biggest economy, they'll be a lot less keen on IP theft.

"These are potentially enormously valuable tools in the hands of the private sector," Baker said, predicting a major goods-blocking lawsuit from an American company against a foreign firm within the next five years.

The feds have a role to play, too, he said, calling on intelligence agencies to help scout foreign networks for stolen data. Targeted sanctions through the Office of Foreign Asset Control at Treasury also can help punish and dissuade hackers, Baker added.

What of the problems of attribution, and the threat of retaliation?

We have "remarkable" attribution capabilities by this point, Baker said, echoing the claims of those peeved in the private sector who want a more aggressive hack-back approach.

Retaliation, at least as concerns China, may not be a serious threat, he noted, as President Xi is "selling out" Chinese hackers in the interest of cementing internal control and assuaging world concerns.

Earlier this month, China claimed to have arrested the hackers responsible for the Office of Personnel Management breach, an intrusion Americans long suspected was state-sponsored, but which the Chinese government is now blaming on criminals.

Baker asserted that, all things considered, robust international legal action is the preferred way forward on cyber threats. The current de facto cyber defense model, emphasizing protecting networks rather than punishing and dis-incentivizing hackers, runs counter to the very principles of the law and civilized society, he noted.

It's as if the world was a town plagued by muggers, he said, and instead of arresting the criminals, the town's police chief told pedestrians to wear body armor to protect themselves.

"That chief of police wouldn't last a day with a plan like that," Baker said.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.