Co-author: Devin Rauchwerger 

The Active Cyber Defense Certainty Act is a new bill that is gaining positive bipartisan support and significant interest from business communities, lawmakers and academics. The proposed bill amends the Computer Fraud and Abuse Act which does not provide adequate deterrence for criminal hacking. The new bill is aimed at helping businesses that are falling prey to cyber criminals defend themselves online by giving victims of computer intrusions unprecedented rights.

Previously, under the Computer Fraud and Abuse Act, a company was either required to enlist local law enforcement after the fact or risk facing prosecution for hacking back. The new bill affords a victim with a number of defensive measures. Specifically, under the bill, a victim of a cyber-attack can access without authorization the attacker’s computer to gather information in order to establish attribution of criminal activity, including sharing information with law enforcement and stopping unauthorized activity against the victim’s network. However, a victim can not destroy information on the hacker’s computer, cause physical injury to another person, or create a threat to the public health or safety.

There are several concerns, however, about the proposed bill that have sparked debate. Giving companies the ability to hack back may not be the best approach to defend against cyber attacks. Instead, it may be more effective and prudent for companies to engage the assistance of law enforcement, government agencies and internet service providers. Also, giving companies the ability to attack the computers of suspected hackers can lead to potential national security concerns; if, for instance, the hacker is a foreign country. There are also ethical considerations that must be considered with hacking-back, such as causing harm to innocent parties.

Under the bill, the fact that the protection afforded the victim disappears if the victim “destroys the information stored on a computer of another” is also potentially problematic. The statute does not currently differentiate between purposeful destruction of information compared to accidental destruction. Companies may be weary to act if they lose the protection by accidentally destroying information in their attempt to stop the cyber-attack. The current language also suggests that a company cannot destroy whatever partial information the cyber-attacker illegally obtained from the victim.

Notably, there are also drafting issues with the bill. Several terms in the act are vague and open the door to a variety of problems. For example, the term “victim” is defined as “an entity that is a victim of a persistent unauthorized intrusion of the individual entity’s computer.” The term “persistent” is difficult to define: Is persistent measured in terms of the number of separate cyber-attacks that a company falls victim to or is it the duration of one particular cyber-attack that matters? Theoretically under the current language, a victim of a cyber-attack lasting only 30 seconds may not be afforded the protection of this Act.   For all these reasons, the bill will likely need significant revisions before it will pass.

While there are still several kinks that need to be worked out, this is clearly a positive step towards companies being able to defend themselves from cyber-attacks without facing legal repercussions.