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Letters of marque and reprisal
The other day a friend and I were discussing foreign cyberattacks and probes that appeared to be, if not government-launched, at least made with government protection and immunity. Prominent among these being Russian and Chinese hacking.
My friend suggested an imaginative use of letters of marque and reprisal, as authorized by the Constitution. These were the basis of privateering, perhaps the ultimate in privatization. The government would authorize the captain of a civilian vessel to seize enemy shipping, and sell it for his own profit. The letters ensured that if he was captured, he would be treated as a POW rather than as a pirate. A factor in ending the War of 1812 was that, while the US Navy was far too small to have an impact, American privateers (far outnumbering the Royal Navy) were inflicting great pain upon British merchant shipping.
The idea could be implemented along these lines: the US announces that unless a given country stops the cyber-raiding, the US will proclaim that the country is fair game for all American hackers and crackers. Do whatever you want, with no worries about prosecution. If you get any economic benefit, it's yours. If you find any secrets, sell them (we get dibs on military and statecraft secrets, but you sell them to anyone else, too).
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The protections only extended to third parties...A Letter of Marque against Spain, say, would not protect anyone caught on a privateer by the Spanish..
And it only saved one from being treated, sui generis, as a pirate (i.e. summarily hanged).
But it's an interesting idea: Keep our geeks in the US and confidential and let them cry havoc! And let slip the scripts of war...
Also, IIRC the US never signed onto the international treaty that essentially outlawed LoMs
The US is at quite a disadvantage against China and Russia when it comes to Cyber-related attacks -- both offensive and defensive. Our refusal to pay market rates and hire anyone with a record, especially hacking related, means that the most talented people in this field stay in the private (or criminal) sector.
In this field, "combat" experience is often the result of illegal activity and our best trained people have often had a brush with the law. If we're not willing to look past that, our adversaries will continue to win. Russia already refuses to extradite hackers. In fact, Russia has even gone as far as to request extradition of their hackers from other countries to later release them shortly after.
This seems like a brilliant idea, and is pretty much what appears to be going on in other countries like Russia. Cyber crime is given a wink and a nod (and unknown amounts of support) by the host government. What a deal! Deniability, technical improvements, a revenue stream and intelligence information. I'd be surprised if it isn't already happening here, but as another bit of off the books corruption.
IIRC that there is a federal law to prevent people/companies from hacking back so that might be a minor hindrance but I am sure could be worked out.
That law has to change....
Letters of Marque have to be authorized by Congress. What are the chances you could assemble a majority of both Houses to authorize 'em without cutting themselves in on a part of the loot?
I would be interested in knowing who your friend is......that is a fantastic idea.