The online theft of U.S. intellectual property (IP) by other nation states continues to be a big problem, a panel of experts agreed this week at the RSA conference in a session titled, “Responses to state-sponsored economic espionage.”
That much is obvious – awareness of economic cyber espionage has reached the mainstream, with CBS-TV’s newsmagazine “60 Minutes” even doing a segment on it last month, labeling it, “the great brain robbery of America.”
What to do about it is also a big problem. The panel agreed that the most tempting and instinctive response of “active defense” – more commonly known as “hacking back” – is not a good one.
The debate over hacking back remains fierce overall in the security community, with a number of prominent advocates in favor of it, including Stewart Baker (also an RSA presenter), now a partner at Steptoe & Johnson but with a high-level government history as a former assistant secretary for policy in the Department of Homeland Security (DHS) and former general counsel at the National Security Agency.
But there wasn’t much debate on this panel.
“Hacking back doesn’t get your IP back,” said Christopher Painter, coordinator for cyber issues at the State Department, adding that attribution – determining who actually committed the theft – can be very difficult.
“It can be a bit like you trying to punch somebody, but they duck and you punch somebody else,” he said. “You don’t get the benefit and it can cause legal and international harm. It just doesn’t work very well.”
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Mark Weatherford, chief cybersecurity strategist at vArmour agreed, noting that given the difficulties of attribution, a victim could be “punching an opponent you cannot see – and it might be a nation state.”
That, he said, could result in “unintended consequences,” including retribution from a much more powerful adversary, not to mention legal problems.
Christopher Painter, coordinator for cyber issues at the State Department
The only partial dissent was from Paul Rosenzweig, founder of Red Branch Law & Consulting and a former deputy assistant secretary for policy at the DHS. He said hacking back can work effectively sometimes.
But he agreed on the “legally complicated” part. He told of an unnamed corporate client that had retaliated against a hack and was then looking for legal help against the attacker from both the U.S. government and the government of the country where the attacker was located.
The problem, Rosenzweig said, was that the firm, “had committed crimes in both countries, so they were in a legal box they couldn’t get out of.”
“We basically agreed that they should just fix the hole and then never speak of it again,” he said.
That leaves less volatile responses – diplomacy, threats and agreements like the one between President Obama and Chinese President Xi Jinping announced with much fanfare last September. But while they are less risky, they also have not been very effective so far.
Painter said he thought some good has already come from the U.S.-China agreement. He said in the past China had not acknowledged any distinction between economic and political espionage, and now it has.
Also, while he said it will “take time to see if it works, it does set a standard of accountability – one that other G20 countries have agreed with.”
But Rosenzweig was less optimistic, saying the entire topic “makes me grumpy.”
That, he said, is because he believes economic espionage is “a policy problem, not a legal problem.”
Most countries have “robust” laws against the theft of IP, he noted, “but there is little enforcement.”
Besides that, those from other countries who steal from U.S. companies are frequently beyond the reach of the American justice system. “When, if ever, would we see extradition to the U.S.? The chances are pretty thin,” he said.
“So the law is inadequate – it has almost no utility unless you can bring people to justice.”
That, he said, leaves diplomatic avenues, including sanctions, “but the sanctions policy has yet to be used,” he said. “We’re in the middle of that story.”
Jessica Malekos Smith, law student at UC Davis School of Law, was also dubious about the effectiveness of available responses, again citing the difficulty of enforcing an agreement without foolproof attribution. She cited a Wall Street Journal article that she said called the U.S.-China agreement, “full of promise with no enforcement.”
The panelists agreed that more and better sharing of threat information might help, but Rosenzweig said most private sector firms, “don’t see the benefit as worth the cost – they see it creating more regulation and costing too much to put together the information.”