Bad Cyber Actors Don’t Fear the Law. We Can Change That.

Recently, a number of researchers have argued that malicious cyber actors, whether nation states or common criminals, aren’t much deterred by law enforcement actions. And statistics show that laws are much less likely to be enforced in cyber crime cases than in those dealing with traditional, offline crime. Yet individual success stories of international collaboration on cyber crime, such as Operation Shrouded Horizon or the Avalanche Network takedown, serve as proof of concept for law enforcement’s potential in establishing meaningful deterrence. 

The problem of deterrence in cyberspace has long bedeviled defenders. In 2018, Congress created the Cyberspace Solarium Commission to develop a strategy and recommendations to prevent cyber attacks against the United States. After close study, the Commission concluded that deterrence as a concept can be successful in this new domain — under a new approach dubbed layered cyber deterrence.

This new approach would combine all instruments of power and U.S. partnerships at home and abroad to: shape behavior in cyberspace through strengthened norms, deny the benefits of malign behavior by improving national resilience, and impose costs for rule-breaking. Its success would require a whole-of-nation approach, connecting federal and local governments, the private sector, academia, civil society, and all of American society. And it would need plans tailored to specific threats; actions that would deter China might not work for Russia or a criminal group. 

While scholars have observed that “bringing criminal charges against foreign hackers and online influence operators does not appear to impose enough costs on adversaries to convince them to cease from further malicious activity,” the Commission’s stance is that as a part of a larger panoply of efforts, law enforcement actions can drive up costs against adversaries, thus boosting deterrence. While the individual elements of state power in cyberspace may not have changed the past behavior of bad actors, in concert they can be an effective deterrent. With careful calibration, law enforcement tools are a crucial element within each of the three layers of this larger deterrence strategy. The United States must apply these tools more systematically as part of a national strategy in order to get there.

Layer One: Shaping Behavior

The first layer of the CSC’s strategy for deterrence aims to clarify and reinforce responsible behavior in cyberspace through the application of norms. Law enforcement plays an important role in strengthening and clarifying consequences for violating those norms. Joint actions by law enforcement agencies that provide demonstrable consequences—for example, the takedown of the GozNym cyber criminal network—do not stop only that particular criminal enterprise, but also serve as a signal to the wider world. We shall see whether such takedowns deter future criminals, but nation-states that might today turn a blind eye to such criminal enterprise are put on notice that violations of formally accepted norms will be met with consequences. 

Similarly, the behavior of malign actors can be shaped by the threat of extraditions that limit their travel, but in order to credibly make this threat, law enforcement depends on multinational cooperation. Although there are safe havens in places like Russia and China, the United States has bilateral extradition treaties with more than 100 other countries. Further, the negotiations of international law enforcement agreements, like the Budapest Convention, add greater clarity to the boundaries and consequences of norms. Thus law enforcement action serves to shape behavior by solidifying the definitions of norms while also building the credibility of enforcement. 

Layer Two: Denying Benefits

The second layer of CSC’s layered cyber deterrence strategy aims to prevent adversaries from exploiting American networks. Given the current cyber crime enforcement rate of less than one percent, cyber criminals can reasonably expect to reap the benefits of bad behavior with little fear of consequences. Improving law enforcement’s ability to deny benefits helps reduce this opportunity, even though criminal activity in cyberspace may not be blocked entirely, because “it can nevertheless threaten to make the costs too high.” For example, by strengthening the National Cyber Investigative Joint Task Force, the United States improves the technical capabilities of federal law enforcement entities to effectively analyze and investigate malicious cyber activities observed domestically, thus making cyber crime a riskier prospect. 

Beyond simply bolstering its own capabilities, however, law enforcement collaboration with outside partners can improve national resilience, and consequently, the layered cyber deterrence strategy as a whole. In non-profit sectors, trusted partners like ShadowServer can help to raise the bar on security by sharing indicators of compromise with the private sector, making it harder for bad actors to profit from their crime. Meanwhile, building law enforcement collaboration between public sector law enforcement entities in federal and state, local, tribal, and territorial governments helps raise the overall level of investigative ability regarding cybercrime across the nation. 

Layer Three: Imposing Costs

The final layer of layered cyber deterrence focuses on the ability and capacity to respond to malicious behavior in cyberspace. As in the other layers, there are opportunities here to expand existing law enforcement tools and initiate new activities to better enable the United States to punish malign behavior. These law enforcement tools could be more effective when combined with closer private-sector collaboration. Major tech companies, like Microsoft and Twitter, have taken down malicious botnets worldwide and remove content and accounts that are spreading disinformation. 

Similarly, improved collaboration with international partners offers an opportunity to improve the effectiveness of layered cyber deterrence overall. For example, increasing the number of FBI Cyber Assistant Legal Attachés will build closer, more collaborative relationships between the United States and our partners to improve the collective ability to impose consequences on bad actors. Additionally, expediting the Mutual Legal Assistance Treaties and Mutual Legal Assistance Agreements process by providing the Department of Justice, Office of International Affairs with administrative subpoena authority will streamline the prosecution of cybercriminals globally. 

At its core, layered cyber deterrence weaves together the many instruments of state power using a whole-of-nation approach. Military engagements, diplomatic efforts, economic actions, and the myriad of other tools are essential to deterrence, but they are more effective when employed alongside strengthened law enforcement actions. 

The opinions in this piece are the authors' and do not necessarily reflect the positions of the U.S. government.