Active Cyber Defense

With little fanfare and less public notice, Congress and the executive branch have cooperated effectively over the past decade to build a legal architecture for military cyber operations.

In May 2008, the U.S. Department of Defense and the German Ministry of Defence signed a memorandum of understanding concerning “Cooperation on Information Assurance and Computer Network Defense.” Computer network defense (CND) refers to actions taken on computer networks to monitor and protect those networks. It is not the only memorandum the U.S. Department of Defense has signed with allies on cyber defense.

In February 2018, the German government’s network was attacked. Germany did not specify what kind of information was accessed by the foreign hackers, but it is publicly known that the hackers successfully attacked the IT system of the Ministry of Foreign Affairs.

The recent WannaCry and NotPetya global cyber incidents have fueled the debate already raging over the role of and limits on corporate self-defense in cyberspace. The emerging international practice of “active cyber defense” (ACD) moves this debate beyond the merely theoretical realm. Private sector active defense potentially shifts the balance in favor of defenders and would improve companies’ ability to complicate and disrupt attacks and mitigate damages.