Diplomatic Analysis: The US attempt to leverage private cyber capabilities is hampered by legal ambiguity and inadequate incentives.
The recent White House memorandum seeking to expand capabilities to combat transnational cyber-enabled crime, coupled with Congressional proposals for “cyber letters of marque,” represents a novel – and potentially problematic – approach to addressing the escalating threat of cybercrime. While the intent to harness private sector expertise is sound, the current framework is plagued by legal uncertainties, lacks compelling financial incentives, and risks unintended escalation. This analysis examines the historical context, key actors, potential implications, and likely trajectory of this initiative, highlighting the challenges facing its implementation and its potential impact on the evolving landscape of international cybersecurity.
Historical Context
The notion of utilising private actors for quasi-governmental purposes dates back centuries, with “letters of marque and reprisal” historically issued to private vessels authorising them to seize enemy shipping during times of war. This practice, while established under international law (specifically Article I of the US Constitution), fell into disuse over the 20th century, particularly following the Declaration of Paris in 1856 which largely outlawed privateering among signatory nations. The current push to revisit this concept in the cyber domain represents a significant departure from established norms.
The impetus for this revival stems from a recognised capacity gap. Traditional law enforcement and intelligence agencies, such as the FBI, NSA, and US Cyber Command, are often constrained by priorities focused on nation-state threats and lack the resources to effectively combat the proliferation of transnational cybercrime perpetrated by criminal gangs and, increasingly, state-sponsored actors operating through proxies. The idea is that the private sector, possessing significant technical expertise and resources, could fill this void. However, these attempts are being made in a distinctly 21st-century context, where digital infrastructure is global, attribution is difficult, and legal boundaries are ill-defined.
Key Actors & Positions
The principal actors involved are the White House, the US Congress (specifically Senators Mike Lee and Representatives Tim Burchett), the Department of Justice, the Department of Homeland Security, and potentially, private cybersecurity firms like Microsoft and Google.
The White House, through the aforementioned memorandum, advocates for a contractor-based program leveraging private cyber capabilities under the authority of existing law enforcement exceptions within the Computer Fraud and Abuse Act (CFAA). The program aims for a measured approach, operating within a well-defined procurement and approval architecture.
Congress, particularly through Senator Lee’s proposed “Cyber Letters of Marque and Reprisal Act,” envisions a more direct parallel to historical privateering, with companies receiving a share of recovered funds (“prize”) for successful operations. This proposal has garnered little traction thus far.
Private sector firms are a crucial, yet hesitant, component. While firms like Microsoft and Google already possess significant cyber disruption capabilities, they are wary of assuming increased legal and operational risks without commensurate incentives. They have demonstrated ability to disrupt criminal activity through civil litigation but lack the authority to conduct more impactful cyber effects operations without potential legal repercussions.
Analysis
The proposed reliance on the CFAA’s law enforcement exception to justify private cyber operations presents a significant legal challenge. The interpretation of this exception regarding private actors acting as agents of the government has never been tested in court. This uncertainty creates considerable risk for participating companies. Furthermore, the White House framework lacks a clear financial incentive, potentially limiting participation to smaller firms willing to accept a higher risk profile or those already engaged in disruptive activities.
The exclusion of state-linked actors from the program’s targeting parameters is also problematic, as the line between criminal groups and state-sponsored entities is increasingly blurred. This limitation significantly restricts the program’s potential impact, as many of the most damaging cyberattacks originate from groups with at least tacit state support.
The potential for escalation is a further concern. While the article acknowledges evidence suggesting states have routinely escaped consequences for damages caused by their proxies, the prospect of kinetic retaliation against individuals or firms is a considerable risk of carrying out these operations. The fact that the program prioritises the protection of US persons while offering less consideration for non-US individuals or infrastructure presents ethical and legal complexities. The asymmetry between the protections offered to participating companies and the liability they face further complicates the equation.
The memorandum’s structure, mirroring existing offensive cyber operation approval processes, appears designed to satisfy the legal requirements of the CFAA rather than reflect optimal operational design. This indicates a prioritisation of legal compliance over effectiveness.
Outlook
The future of this initiative remains uncertain. The White House’s approach is likely to proceed, albeit slowly and with limited impact, pending further clarification of the legal framework. Without legislative amendments to the CFAA and the provision of robust financial incentives and liability protections, attracting significant private sector participation will be difficult.
Congress is unlikely to pass legislation granting “cyber letters of marque” in the near term. However, focused amendments to the CFAA offering legal clarity and indemnity to private firms operating under government supervision could pave the way for more effective public-private collaboration.
The success of this initiative will hinge on addressing the current ambiguities and disincentives, building trust between the government and the private sector, and establishing a clear legal and operational framework that balances the need for effective cyber defense with the protection of fundamental rights and the prevention of unintended escalation. Without these crucial elements, the current approach risks becoming a largely symbolic gesture with limited practical effect.
Sources:
* Hardy, Justin. “Missed the Marque: Cyber Privateers Wanted, Compensation to Be Determined.” War on the Rocks, 22 September 2026. [https://warontherocks.com/2026/09/missed-the-marque-cyber-privateers-wanted-compensation-to-be-determined/](https://warontherocks.com/2026/09/missed-the-marque-cyber-privateers-wanted-compensation-to-be-determined/)
* Uren, Tom. “A Measured Approach: The White House’s New Cyber Plan.” Lawfare, 26 September 2026.
* Shah, Nikita, and Emily Harding. “A Private Sector Cyberforce—and its Risks.” Council on Foreign Relations, 28 September 2026.
* Congressional Research Service. “Privateering” [CRS Report]. Washington D.C., 2020.
* Van Buren v. United States, 583 U.S. ___ (2021).
* Support Anti-terrorism by Fostering Effective Technologies Act of 2002.
