Hacking Back Is Ethical in the Cyber Frontier

Publication Type: 
Other Writing
Publication Date: 
September 26, 2016

When cyberattacks come from abroad, there’s special panic. We often imagine them to be the opening volleys of a cyberwar that could escalate into a kinetic war. For that reason, hacking back—or cyber-counterattacking—is presumed to be too dangerous to allow.

The legal case against hacking back is that the use of force is a power reserved only for governments, not private individuals and companies. The moral case is that it invites retaliations that can strain political and economic relationships or worse.

But this is too quick. A deeper ethical analysis reveals reasons why hacking back may not be as problematic as believed.

Consider this analogy: Imagine that state-sponsored parties—maybe explorers or military reconnaissance—from two adversarial nations cross paths in unclaimed or contested territory, such as the Arctic region. Nationalism runs high, words are said, and shots are exchanged. Some people are killed. Is this the beginning of a war?

On the face of it, this would seem to violate international laws of armed conflict. As declared by the United Nations Charter, article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

And it is within the natural rights of the attacked nation to defend itself. As declared by the UN Charter, article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

Firing back, of course, may exacerbate the conflict and draw the two nations into war, and this is a worst-case scenario that we would be right to guard against. But does hacking back really create a risk like this?

Like the Arctic, cyberspace is a borderland of sorts, too. Cyberspace is an ephemeral, unfamiliar domain that slips between a purely informational world and the physical world. If so, then it’s unclear that a cyberconflict threatens territorial integrity that requires armed defense, because the borders of cyberspace are hard to locate in the first place, even if it has clear physical roots.

Read the full piece at the Council on Foreign Relations