White House Authorizes Private Cyber Ops Against Bad Guys

The White House issued a presidential memorandum mandating that the National Coordination Center ("NCC"), under co-directors from the DOJ and the Department of Homeland Security ("DHS"), establish a program authorizing vetted U.S. companies to conduct offensive and surveillance cyber operations against foreign cyber-enabled transnational criminal organizations.

The directive built on Executive Order 14390 ("Combating Cybercrime, Fraud, and Predatory Schemes Against American Citizens") to fight cybercrime and fraud by leveraging private-sector capabilities under federal oversight (see prior coverage).

The memorandum authorized participating companies to enter contracts with the DOJ or the DHS to conduct cyber surveillance and "cyber effects" operations. It required two co-executive directors, one from each department, to jointly approve any operation, and prohibited them from approving actions likely to result in "critical outcomes," defined as loss of life, serious injury, or actions rising to the level of use of force or armed attack under international law.

The directive permitted participating companies to enter commercial agreements with other private entities and government agencies to receive threat information and propose responsive operations. It required companies to disclose these relationships to the NCC and allowed the agencies to mandate a bond or escrow of at least $1 million, forfeitable for non-compliance.

The memorandum gave the program's executive directors 60 days to establish operating procedures. It required the procedures to cover eligibility standards, operational deconfliction with other federal agencies, and review processes for any activity implicating U.S. persons. The directors were required to submit a status report to the White House within 180 days and annually thereafter.