Strike Back At Hackers? Get A Lawyer

As security pros in business and government shore up their cyber defenses and contemplate striking back at hackers, they may find themselves on uncertain legal ground. To avoid costly mistakes, it's important to get legal advice before taking action.

That was the message from Robert Clark, an operations lawyer with the U.S. Army Cyber Command, in an address titled "Legal Aspects of Cyberspace Operations," on Thursday at the Black Hat conference in Las Vegas.

"Get a good lawyer. Get them involved early and often. They can be a valued team member," Clark said in an interview with InformationWeek after his presentation.

A key theme at Black Hat was the trend toward incorporating an offensive component into cybersecurity strategies, what Clark referred to as "hack back." But the use of security "beacons," disinformation, and other offensive techniques may have legal implications, he said. Clark said he was speaking in his personal capacity as a legal expert and not as a government official.

[ Consider these 5 Black Hat Security Lessons For CIOs. ]

The role of the lawyer is to ask detailed questions about what steps security teams want to take "so the people who make the decision are fully informed of the risks," Clark said.

Earlier in the week at Black Hat, former FBI cybersecurity expert Shawn Henry, now president of CrowdStrike Services, said proactive cybersecurity strategies include creating a "hostile environment" for would-be hackers and even causing them "pain." He pointed to the use of corrupt packets and disinformation as potential ways of doing that.

Clark said there's a "large area to be explored" when it comes to new techniques for defending an organization's information and IT assets. The Computer Fraud and Abuse Act of 1986, which specifies a range of computer-access offenses, sets legal parameters that continue to apply. "No lawyer's going to say, 'violate the law,'" said Clark.

Operations lawyers can and should help IT security teams finds ways to accomplish their objectives within the boundaries of the law. "No lawyer should say, 'you can't do that,'" said Clark. "They should say, 'if we do it this way,'" then the strategy is legally viable.

Computer security basics continue to be important. Clark said operations lawyers must assess the steps taken prior to engaging in more proactive defenses, such as "air gapping" sensitive information, so that it's harder to access electronically, and encrypting data at rest.