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June 19, 2013 6:49 pm
The US is weighing whether to prosecute foreign officials for the cyber theft of American commercial and government information in an effort to raise the potential cost of such attacks.
The justice department’s national security division has been studying whether to bring cases against foreign officials since at least 2012 and training prosecutors on how to proceed with such indictments.
Any such decision would mark a substantial escalation in the US response to what it has said is an escalating number of attacks by foreign hackers on US business and government computer networks. The main source of those attacks in recent years has been China and groups that have been linked to the Chinese military.
Such actions would also be diplomatically awkward following recent revelations regarding the US’s own large-scale cyber espionage, led by the National Security Agency, the electronic eavesdropping body.
John Carlin, the acting assistant attorney-general for national security, said in an interview with Defense News, an industry publication, in late 2012, that “you’ll see cases brought” in this area.
“Whether it is a state-owned enterprise or a state-supported enterprise in China, if you can figure out and prove that they’ve committed the crime, charging the company means they can’t do business in the US, or in Europe,” he said.
A spokesman for the justice department said there were “no updates” to Mr Carlin’s 2012 comments and declined further comment. White House policy in general supports such prosecutions.
The administration has toughened its rhetoric on cyber theft in recent months, with the White House saying resolving the issue was “at the centre” of relations with China after the June summit between Barack Obama and Xi Jinping.
The US and China have agreed to have direct talks on cyber issues, with the first meeting of a new working group set for July, a process that for the moment is likely to put off any action by the justice department.
Christopher Johnson, of the Center for Strategic and International Studies in Washington, said “the Chinese were quite dismissive” of US warnings on cyber theft at the Palm Springs summit.
“It’s unclear whether they fully grasped the implicit US warning that failure to make quick, demonstrable progress in the new cyber talks risks prompting the employment of the tougher elements in the US toolkit,” said Mr Johnson, a former senior China analyst for the Central Intelligence Agency.
The White House has been keen to stress the justice department’s independence in its recent pursuit of alleged leakers of classified information.
But in cases involving national security, the department’s guidelines allow much greater contact with the executive branch, giving any decision to prosecute a political dimension.
“If there is a national security interest involving a foreign state, then the nature of the conversation within the executive branch will be different,” said Paul Tiao, a former cybersecurity adviser to the Federal Bureau of Investigation director.
When large scale organisations, whether they are nation states or organised crime groups, launch attacks over time with similar trade craft, it is very difficult for them to remain anonymous.
- Steve Chabinsky, former chief of the cyber intelligence section at the FBI
“The fact that the Department of Justice has made public statements about the possible prosecution of state-sponsored hackers suggests the administration was already aware of DoJ’s intentions.”
The possible involvement of the justice department in the administration’s efforts to combat what it says has been a huge theft of US intellectual property has been driven by a number of factors, say analysts.
The first is the need to find ways to push back against the number of attacks and their brazenness. Tracking the culprits has become technically easier.
Steve Chabinsky, the former chief of the cyber intelligence section at the FBI, and now at CrowdStrike, a cyber security firm, said hackers had became easier to identify.
“When large-scale organisations, whether they are nation states or organised crime groups, launch attacks over time with similar trade craft, it is very difficult for them to remain anonymous,” he said.
Although he had no direct knowledge of pending prosecutions, Mr Chabinsky said such indictments could make “perfect sense.”
“Any number of Chinese nationals are prosecuted in the US for espionage,” he said. “So I think it is consistent with the kinds of prosecutions you would see if such activities were conducted physically as opposed to virtually.”
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