Florian Egloff warns against legalizing cyber privateering in LawFare:
Think of Corporation A in a country being authorized to investigate Corporation X in another country. Corporation A may just find it convenient to profit from information found about Corporation Y during the investigation authorized against Corporation X. Will the strict controls applied to privateers hold? Maybe in societies with a strong separation of powers and a tradition of checks and balances. But in other countries, where power is not kept as much in check, probably not.
Even if we assume, for the sake of argument, that the U.S. private sector could perform cyber operations with the same level of care as governmental agencies (assuming that these agencies are careful) and stipulate that their corporate sponsors weigh the potential blowback carefully against their business interests, in such case privateers still constitute a means of engaging in conflict and potentially warfare. Which countries should the United States be willing to issue privateering licenses against? We can be sure that such licensing will be seen as a hostile act.
To my mind, privateering was a pragmatic requirement when Governmental military resources were scarce; it was never an ideal decision because of the conflict of interests problem – the government exists and is optimized to protect its subjects from the depredations of foreign powers and pirates. A private party has no such motivating force; instead, it may be motivated by profit, whimsy, unknowable motivations, others, or a combination of same – none of which render it a trustworthy force to a Government which may have to enable the privateer in some way, through resources or, at the least, a legal maneuver of some sort. Once free to engage in privateering, the private party may be difficult to control, engage in maneuvers outside of its writ, and other behaviors less likely (but never impossible, of course) by the Government agents – as its motivations demand and justify. A private party’s motivations dictate the optimization of its methods, and those motivations and resultant methods may not be compatible with the goals of the Government – a lesson we’re learning the hard way in such areas as private prisons. Let’s not repeat that error in cyberwarfare.
