Any leverage Washington has over North Korea has been invested in stifling their nuclear program; so you might think the U.S. government has just two available responses to the Hollywood hack: Do nothing or declare war. But, happily, there’s a third option, and it’s firmly grounded in the Constitution.
Hacking from North Korea is a longstanding nuisance for South Korea; it’s a new problem for the United States, though it may become a more serious one. Over the last few years, North Korea has doubled its supply of military hackers. According to the Hewlett-Packard Security Research blog, it now has the largest cyberwarfare establishment outside the United States and Russia. But it’s not the most serious cyberthreat. As part of Russia’s Freudian efforts to compensate for its Cold War emasculation, Russo-hackers have damaged American utilities, stolen technical data, and absconded with private banking info. But the Russians aren’t the most serious threat, either. China is.
According to a 2011 report of the National Counterintelligence Executive, “Russia’s intelligence services are conducting a range of activities to collect economic information and technology from U.S. targets,” but “Chinese actors are the world’s most active and persistent perpetrators of economic espionage. U.S. private sector firms and cybersecurity specialists have reported an onslaught of computer network intrusions that have originated in China.”
The Chinese government denies being involved in hacking and says “such reports and comments are irresponsible and are not worth refuting.” Consequently, they haven’t been refuted. The problem persists. According to an American government official who spoke to Reuters, “China may have helped North Korea carry out the hacking attack on Sony.”
Unless America plans to give up mocking dictators, we can’t respond to the Sony hack by doing nothing. Since we’re not going to bomb Pyongyang, and we don’t want a cyberwar, or a trade war, or a real war with China, we have to reconsider the middle ground.
According to the National Counterintelligence Executive, “tens of billions of dollars of trade secrets, technology and intellectual property are being siphoned each year from the computer systems of U.S. government agencies, corporations and research institutions.” This month, tens of millions of dollars have been siphoned out of our film industry. According to the Chinese and North Korean governments, neither was involved in those hacks.
So Chinese and North Korean hackers (among others) are operating beyond national boundaries, floating around on the high seas of the Internet; if they are working, as their governments say, without government sanction, I say that makes them pirates. And as it happens, We the People are equipped to deal with pirates.
Article 1, Section 8 of the U.S. Constitution enumerates the powers of Congress, which include the power “to define and punish Piracies” and to “grant Letters of Marque and Reprisal.”
Letters of marque and reprisal are writs issued by governments for private parties to attack enemies, and to respond to attacks, without direct government oversight. They’re thought of as creating privateers. But strictly speaking, a letter of marque permits a merchant ship to arm and defend itself against attacks, from warships or pirates, and, in the process, to take prizes.
Congress should use its power to define piracy to define cyber-piracy, and issue letters of marque to hacked companies, licensing them to defend themselves. American programmers working for American or America-resident companies would then be able to follow hackers back to their servers of origin—and to sack and pillage whatever they could, using, sharing, or selling what they found. (They would be expected, of course, to be discreet in handling American intellectual property and trade secrets, in exchange for their letters of marque: quid pro quo.) I suspect there would be plenty of patriotic software engineers willing to do some hacking for sport, profit, and the national interest.
This is a rational response to theft and harassment. All we need to get going is an interested member of Congress. Last week, Rand Paul took the opening of Cuba as a chance to set himself up as nonmilitary non-isolationist. Letters of marque should be right up his alley, particularly if he wants to recover some of the ground he lost by picking the wrong side of an argument with Marco Rubio. Of course, that argument set Rubio up as the serious conservative’s alternative to Rand Paul (among the junior senator set). So this could be a good issue for Rubio, too.
It’s been a couple of hundred years since Congress availed itself of this particular power. If it means to take cyberthreats seriously, now would be a good time to revive it.
Joshua Gelernter is a frequent contributor to The Weekly Standard and writes weekly for National Review Online.
