The Right to Strike Back

pic3-640x400As published on Norse on June 26, 2015.

Last week, at the HiP Conference in Paris, there was a debate on whether or not it should be allowed to strike back when you are being hacked. Currently, criminal law in most countries does not allow it. But is this tenable in today’s’ highly digitized society rife with cybercrime?

My position in this matter is that we should create a legal recognition of the fact that we are in a social gray area where it concerns the Internet, even if it is only a temporary recognition, and allow for somecapability to strike back at cyber criminals. As I’ve said before, humanity is only now scratching the surface of what it means, socially and culturally, to have (largely) unrestricted access to the collective knowledge of Man at our fingertips, (almost) everywhere and (almost) anytime we desire.

In virtually every aspect of the human experience, it has made its’ impact felt. The number of human lives that remain completely unchanged through some kind of information technology is rapidly dwindling to zero as technology advances, and our adoption of them continues to rise.

Under the umbrella-term “Cyber”, that is similarly revered and reviled, we are inching our way through the various aspects of our daily lives to adapt our old notions of how we ‘did things’ to incorporate the new realities we face in the Information Age. Crime, international politics and armed conflicts are among the most hotly debated topics in this regard. What I am getting at, is that in a social and cultural sense, Cyberspace can (and in my opinion should) be considered terrain in the early stages of colonization. Think of it as the New Frontier or the Wild West, if you will.

We recognize that there is this huge new area that can be explored, colonized and exploited, but exactlybecause it is new and untamed, there should be only a limited expectation of Law and Order. Certainly, in most countries the national laws have been revised to incorporate the new realities of Cyberspace. But often these amendments or new laws are only rough first drafts because very few (if any) people understand exactly what Cyberspace means (culturally and socially).

What doesn’t help is the fact that as our technology continues to advance, our uses –and in turn the consequences- are changing with it. In other words: even if we manage to define proper laws for the circumstances right now, there is a good chance that they will be outdated due to technological advances in short order. But that is not really the core issue. Having properly defined, applicable and reasonable laws is only the first step. You have to be able to enforce a law if you expect people to follow it, otherwise it just becomes little more than an advisory note. A cute bauble that the criminally inclined can have a chuckle over while they continue making money off of these exact crimes you’re trying to prevent. And that, unfortunately, is largely where we are now.

Despite being a horrible analogy in every other sense, Cyberspace is the Wild West. Law and Order is reasonably established in some areas, but for the most part you can only depend on the occasional sheriff or Ranger. As was the case in the early years of the Wild West, there –on the whole- isn’t a whole lot of coordination between law enforcement, the government and the citizenry. This can be easily verified by looking at the figures. The number of successfully prosecuted cybercrime cases is very small indeed, when compared to the number of reported incidents. Also consider that we don’t see every incident, and even when incidentsare discovered, they are not always reported. Please don’t misunderstand what I am trying to say: This is not intended as a snipe against law enforcement or the government. They are trying to get a handle on these cases. But the fact of the matter is that we have a serious lack of expertise and experience across the board. There just aren’t enough people skilled and experienced enough to make a serious dent in the numbers. Or, for that matter, to faster develop an underlying framework that makes law enforcement of cybercrime any easier.

Frameworks containing (and hinging on) effective international agreements, laws and political policy to address cybercrime are also still being developed. The often-heard argument to forbid people from striking back at cyber criminals is that to do so is anoffensive act, and not a defensive one. In other words, striking back should be considered a weapon and not a shield. In the strictest sense of the definition this is indeed correct. However, just looking at the success rate of cyber-attacks alone will dissuade anyone from the notion that a “good defense” is enough to stave off a cyber-attacker.

Even the US military, with the highest defense budget in the world, can’t prevent some attacks from being successful. In very practical terms this tells us that we cannot count on being secure when we are only allowed to defend ourselves; something is clearly missing. Perhaps that missing element is the right to strike back. To stick to the earlier analogy of the Wild West, we are unarmed and criminals are not. Essentially we are telling people not to act when they are being attacked. To trust the Police to protect us against predators. To sit still and pray that the criminals don’t find the valuables we’ve buried in the proverbial shed. But clearly the Police are not capable of doing so right now, as can be easily deduced from the figures mentioned earlier.

In my opinion this is untenable, and quite frankly I find it unconscionable to leave the average citizen as such an easy prey. During the debate I therefore argued for at least a temporary recognition that allows for striking back at our assailants, with the express goal of halting an attack. It will be interesting to see how the other panelists view it, and I look forward to hearing if perhaps there is another solution to the problems we face today.