In the wake of the recent cyberattack on Colonial Pipeline, a retired army lawyer and major general makes the argument that the U.S. should reinstate letters of marque to deal with cyber piracy.
"After the Japanese attacked Pearl Harbor, the Goodyear blimp Resolute was put into service spotting enemy submarines. There’s a lesson for 21st-century cyberwarfare. The Constitution gives Congress the power to issue “letters of marque and reprisal”—essentially licenses authorizing private parties to wage war on the government’s behalf. Congress issued letters of marque liberally until the end of the War of 1812, and they were particularly useful during the First Barbary War (1801-05). The fledgling U.S.’s fleet of six frigates couldn’t stem piracy alone. Letters of marque enlisted U.S. merchantman as far away as the Mediterranean, where Barbary states often provided pirate ships with safe harbor. In the typical 19th-century use, Congress issued letters of marque to schooners and sloops, giving their operators the authority to sink or capture pirate ships by force. The Resolute was the first and only privately owned U.S. craft to operate under a letter of marque since then. The blimp was flown by a civilian crew out of Los Angeles. If letters of marque could be adapted for flying machines, why not computing machines? Recent destructive hacks have proved that federal action alone can’t protect the cyber infrastructure. The time has come to grant letters of marque to enlist and arm private corporations to defend their interests and America’s. Today’s pirates sail the cyber seas searching for loot, by ransom or theft. Like their 19th-century maritime counterparts, they respect no sovereignty and disrupt commerce and daily life. ... Like the Barbary pirates, hackers frequently receive haven or direct support from hostile states like Russia or China. ...
"Similarly, the best way to limit the damage of hacker breaches is for the target to share information quickly with the government—in this case, the NSA. That’s where letters of marque come in. Historically, such letters provided financial incentives to overcome fear and inaction in the face of dangerous outcomes and national need. On the high seas, they assured standing and rights in admiralty courts that awarded “prize money” when pirate ships were sunk or captured. Cyber letters of marque could establish incentives for timely information sharing and ensure that companies have the freedom to defend themselves. A company targeted by hackers would apply to Congress, which would grant a letter of marque providing limited immunity from regulatory action when breaches and activities are spotted early and shared expeditiously with U.S. agencies. And while corporations should take all measures necessary to make consumers whole when they are breached, Congress could also provide limited protection against punitive lawsuits against companies that meet accepted standards of cyber defense, provide early reporting, and take robust defensive measures against their hackers. We haven’t had a cyber Pearl Harbor, but today’s threat from hackers could become as dangerous as enemy submarines."
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