For the first time, we begin the podcast not with NSA on the defensive, but with breaking news of an American counterattack on Chinese cyberspying – the indictment of several PLA members for breaking into US computers to steal commercial information. Our guest for the day, Shane Harris, is ideally suited to analyze the

The vulnerability of computer networks to hacking grows more troubling every year. No network is safe, and hacking has evolved from an obscure hobby to a major national security concern. Cybercrime has cost consumers and banks billions of dollars. Yet few cyberspies or cybercriminals have been caught and punished. Law enforcement is overwhelmed both by the number of attacks and by the technical unfamiliarity of the crimes.

Can the victims of hacking take more action to protect themselves? Can they hack back and mete out their own justice? The Computer Fraud and Abuse Act (CFAA) has traditionally been seen as making most forms of counterhacking unlawful. But some lawyers have recently questioned this view. Some of the most interesting exchanges on the legality of hacking back have occurred as dueling posts on the Volokh Conspiracy. In the interest of making the exchanges conveniently available, they are collected here a single document.

The debaters are:

  • Stewart Baker, a former official at the National Security Agency and the Department of Homeland Security, a partner at Steptoe & Johnson with a large cybersecurity practice. Stewart Baker makes the policy case for counterhacking and challenges the traditional view of what remedies are authorized by the language of the CFAA.
  • Orin Kerr, Fred C. Stevenson Research Professor of Law at George Washington School of Law, a former computer crimes prosecutor, and one of the most respected computer crime scholars. Orin Kerr defends the traditional view of the Act against both Stewart Baker and Eugene Volokh.
  • Eugene Volokh, Gary T. Schwartz Professor of Law at UCLA School of Law, founder of the Volokh Conspiracy, and a sophisticated technology lawyer, presents a challenge grounded in common law understandings of trespass and tort.
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