Expanding Capabilities to Combat Transnational Cyber-Enabled Crime

This document is a highly detailed fictional or speculative Presidential Memorandum.While it is formatted to look like an official White House communication, it references events and dates in the future (e.g., January 20, 2025, and March 6, 2026) and uses an archaic cabinet title ("Secretary of War", a position that was renamed Secretary of Defense in 1947).Below is an analysis of the policy concepts presented in this text, which describes a significant shift in U.S. cyber strategy:The memorandum proposes what is often referred to in policy circles as a modern "Letter of Marque and Reprisal." Historically, these were government commissions authorizing private parties (privateers) to conduct military-style operations against enemies of the state.In this document, "Participating Companies" (private cyber firms) are authorized to move from passive defense (blocking firewalls) to active offense:Cyber Surveillance Operations: Hacking into foreign criminal systems to gather intelligence.Cyber Effects Operations: Disrupting, degrading, or destroying the digital infrastructure of criminal organizations.The memo specifically targets Cyber-Enabled Transnational Criminal Organizations (CE-TCOs).The Loophole: Section 4(c) contains a significant "presumption of non-state actor" clause. It states that a group is assumed not to be part of a foreign government unless "clear intelligence exists" otherwise. This would allow private companies to strike groups like those in Russia or China that operate with state protection but lack formal government titles.A major legal hurdle for "hacking back" is the Computer Fraud and Abuse Act (CFAA) and international law.The Solution: The memo attempts to solve this by making the companies "agents" of the state. By placing them under the "direction and oversight" of the DOJ and DHS, the government provides a legal shield.The Bond: Section 3(a)(iv) requires companies to post a $1 million bond, which they forfeit if they violate the rules of engagement or accidentally target Americans."Secretary of War": The use of this title instead of "Secretary of Defense" suggests a "return to tradition" or a restructuring of the executive branch consistent with certain "Project 2025" or constitutionalist tropes often found in political fiction.Executive Order 14159: The memo references an EO dated January 20, 2025, titled "Protecting the American People Against Invasion," implying a broader policy of aggressive border and digital sovereignty.Private Sector Ingenuity: The policy argues that the government is too slow and that only the private sector (e.g., specialized tech firms) has the speed to defeat modern cyber-criminals.The document acknowledges several dangers that critics of "active defense" often cite:Collateral Damage: Section 3(a)(x) sets up procedures for when a company accidentally hits a U.S. system or an innocent party.Escalation: Section 4(b) defines "Critical Outcomes" (death or use of force) and forbids companies from taking actions that would be considered an "armed attack" under international law, to avoid starting a shooting war.