Cybersecurity in a Time of Political Crisis: Open Courts to Punish State-Sponsored Foreign Hackers

Across America, there is a sense of unease, as millions watch radical, political violence go  mainstream. Buoyed by fawning coverage in the mainstream media, hard-left groups like Antifa and BLM set Democrat cities ablaze. Governors and mayors—largely sympathetic to the rioters’ political platform—remain unwilling to enforce the law or prosecute the lawbreakers, preferring instead to launch social media broadsides against those who demand law and order. 

There is a natural nagging feeling on the part of many Americans that something is wrong: a sense that some in government no longer have the will to protect their citizens from crime and violence. Instead, this violence, since it comes from ideological allies, is contextualized, or even justified. This is a new consideration for many in this country who had never imagined their elected leaders could ever lack the will—rather than the capability—to enforce basic laws meant to keep them safe. 

It’s perhaps unavoidable to think, then: If a government can’t keep the streets safe from Molotov cocktails—and even allows Antifa to indulge in political assassinations, like we saw in Portland—how much trust should we put in its willingness to protect us from foreign threats? The government might have the ability to deal with a foreign threat, but it might not have the will.

As this country barrels toward a monumental election in less than a month—amid riots, a pandemic, talk of coups and even more unrest—it’s not surprising that much of the oxygen has been sucked out of the world’s news cycles. Even peace in the Middle East, elusive for decades if not centuries, disappears from the headlines in a matter of days. The last thing many Americans are thinking about is danger from abroad. This might be understandable, but it’s a mistake.

Chinese efforts to undermine the United States haven’t stopped during this chaos. 

The size of China’s economic and military might intimidates much of the U.S. national security establishment, leading it to ignore military buildups, aggressive moves in the South China Sea, and even the enslavement of millions of Uighur Muslims. For many in the “smart set,” the ascendance of China has long been seen as inevitable or even desirable. 

In particularly egregious cases, the government has stepped in. In late July, a federal grand jury in Spokane, Washington, indicted two Chinese nationals working with that country’s Ministry of State Security for being behind a decade-long hacking for profit scheme that had targeted “hundreds of victim companies, governments, non-governmental organizations, and individual dissidents, clergy, and democratic and human rights activists in the United States and abroad, including Hong Kong and China.” 

Chinese hackers have targeted infrastructure, but they’re also known for going after individuals. “In at least one instance,” the Justice Department announced, “the hackers sought to extort cryptocurrency from a victim entity, by threatening to release the victim’s stolen source code on the Internet.”

The Trump Administration is doing what it can—but will a more China-friendly Biden Administration crack down as comprehensively on Chinese intellectual property theft and cyber crime? Even if they would, there are far more of these crimes than can be prosecuted by any Justice Department. 

Even as the number of cyber crimes against American citizens and institutions has multiplied exponentially, the government’s ability to deal with them has not. More likely than not, however, due to the Foreign Sovereign Immunity Act (FSIA)—which currently prevents American citizens and institutions from suing the state sponsors of cyber-espionage campaigns—these hackers go unpunished. Their victims deserve restitution and their day in court. 

The bipartisan Homeland and Cyber Threat (HACT) Act is a good step towards solving this problem, as it would give American companies, universities and individuals the ability to sue foreign, state-sponsored hackers for damages. The HACT Act would modify the FSIA, would allow victims to sue for compensation in American courts—much like the 2016 change to FSIA allowed terror victims and their families to sue state sponsors of terrorism.

The continued breakdown of trust and civility across party lines is inevitable. Democrats and Republicans are mutually acrimonious, and no longer agree on the most basic principles or values on which the political regime is based. Both parties now recognize that, like everything else, foreign policy has become partisan. 

And, possibly recognizing that neither party fully trusts the executive branch of government to address all but the most high-profile hacking crimes, a rare bipartisan consensus exists on the HACT Act. Since it was introduced in August 2019, the legislation has amassed 67 co-sponsors—running an ideological gamut from Ted Lieu (D-Hawaii) to Matt Gaetz (R-Fla.), and many others in between.  

As Chairman of the Senate’s Judiciary Committee, Lindsay Graham (R-S.C.) is in a position to move the HACT Act forward once it gets through the House. Graham needs to get behind this legislation, but so far he’s been tight-lipped about it. What makes the HACT Act especially valuable, in a time of turmoil and collapsing institutional focus, is that it requires very little of government. Give the victims their day in court—allowing them to sue foreign state-sponsored hackers and get U.S.-based assets—and leave the most politically-charged and gridlocked parts of government out of it. The solution to so much partisanship is said to be “more federalism.” The HACT Act is a small step in that direction.

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About David Reaboi

David Reaboi is a strategic communications consultant and national security and political warfare expert. He has written extensively on the Middle East, the Arabian Gulf, and Sunni Islamist movements. He lives in Miami Beach. He is a Claremont Institute fellow, and his work appears at The Federalist, Claremont Review of Books and PJMedia.

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