President Trump signed a national security memorandum on August 13 establishing a formal program that allows vetted private US cybersecurity companies to conduct offensive cyber operations against transnational criminal organizations under government direction and oversight. The program, managed by the National Coordination Center, covers both intelligence collection, described as Cyber Surveillance Operations, and active disruption of criminal infrastructure, described as Cyber Effects Operations. It’s the formal implementation of what the White House’s Cyber Strategy for America promised in March: unleashing the private sector as an offensive cyber instrument.
“The American private sector is the most innovative and technologically advanced in the world, and its scale, speed, and capacity secure a critical offensive cyber advantage for the United States. Yet, American businesses’ innovative capabilities have historically been underutilized in efforts to identify and disrupt criminal networks operating in cyberspace. Thus, it is the policy of the United States to use all instruments of national power, including the innovative capabilities of the private sector, to combat cybercrime.” states the memorandum.
“By partnering with vetted United States companies subject to the direction and oversight of the Federal Government, we will enhance our ability to counter TCO threats and combat transnational cybercrime, fraud, and other predatory schemes against American citizens.”
The program targets what the memo defines as Cyber-Enabled Transnational Criminal Organizations, any foreign group conducting cyber-enabled crime against US interests, explicitly excluding entities that are institutional parts of foreign governments or wholly operated under foreign government direction. That carve-out matters: this program is aimed at criminal networks, not nation-state adversaries. The line between the two is often blurry in practice, but the memo establishes the presumption that a group is not government-directed unless clear intelligence says otherwise.
““Cyber Effects Operation” means activity conducted in or through the interdependent network of information technology infrastructure that includes the Internet, telecommunications networks, computers, information systems, industrial control systems, networks, and embedded processors and controllers that results in the manipulation, disruption, denial, degradation, or destruction of information systems, networks, physical or virtual infrastructure controlled by information systems, or information resident thereon.” continues the memorandum.
Program executive directors from the Department of Justice and the Department of Homeland Security must co-approve every operation in writing before any action is taken. Operations that could produce those Critical Outcomes require additional authorization beyond the program executive directors, an explicit acknowledgment that some cyber actions cross into territory governed by the laws of armed conflict.
Companies wanting to participate must clear rigorous vetting, demonstrate technical capability, submit to annual evaluations, and maintain a bond or escrow of at least $1 million that is forfeited if they violate their contract terms. The operational procedures are to be finalized within 60 days, and the Justice Department will review any operation that touches a US person or raises domestic constitutional questions. The legal question hovering over the whole program is whether the CFAA exemption for lawfully authorized government investigative activities extends to private companies acting under government contracts, a question no US court has yet answered. Jenner & Block lawyers noted the exemption likely applies when companies operate under direct government direction, but wouldn’t cover independent offensive operations without that oversight. That’s precisely why the memo makes government control explicit at every step: every operation needs written approval before action, every unintended contact with a US person or system must trigger an immediate stop and notification, and the Justice Department stays in the loop throughout.
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(SecurityAffairs – hacking, Transnational Criminal Networks)