Obama Authorizes Penalties For Foreign Cyber Attackers

An anonymous reader writes President Barack Obama has today signed an executive order extending the U.S. administration's power to respond to malicious cyberattacks and espionage campaigns. The order enforces financial sanctions on foreign hackers who action attacks against American businesses, institutions and citizens. It will enable the secretary of the Treasury, along with the attorney general and secretary of State, to inflict penalties on cyber criminals behind hacking attacks which "create a significant threat to U.S. national security, foreign policy or economic health or financial stability of the United States," Obama said. Sanctions could include freezing of assets or a total ban on commercial trade.

Comments

Hypocracy at its best

[Anonymous Coward]

And what about the non-stop attacks from the US government against... everyone else?

Please, no more!

[Anonymous Coward]

I'm tired of these April Fool's articles!

Re:Please, no more!

[El_Oscuro]

This is apparantely not a joke. I would never actually read the article but I did carefully hover over the link and it is from the whitehouse.gov website. If it had been from, whitehouse.com that would be an entirely different story...

Re:Please, no more!

[ScentCone]

This is apparantely not a joke ... it is from the whitehouse.gov website

Well which is it?

How can foreigners be charged under US law?

[Anonymous Coward]

This is ridiculous. Law is part of the agreement between citizens and their government. Citizens get certain benefits like public education and healthcare, and in return must pay the government taxes and obey their laws. If the citizen disagrees with this, he can resign his citizenship, but by doing so loses the benefits of citizenship as well.

Foreigners, on the other hand, have no such agreement, and therefore it's ridiculous to charge them. What's next, Saudi Arabia charges me for having a beer tonight? North Korea charges me for criticizing their regime? Should I serious have to look up every single country's law before I do something, just to make sure I'm not breaking some obscure country's law?

Re:How can foreigners be charged under US law?

[Etherwalk]

Foreigners, on the other hand, have no such agreement, and therefore it's ridiculous to charge them. What's next, Saudi Arabia charges me for having a beer tonight? North Korea charges me for criticizing their regime? Should I serious have to look up every single country's law before I do something, just to make sure I'm not breaking some obscure country's law?

North Korea may not be able to arrest you, but they sure as hell can block your IP and wire transfers into and out of North Korea.

Re:How can foreigners be charged under US law?

[Dutch Gun]

Should I serious have to look up every single country's law before I do something, just to make sure I'm not breaking some obscure country's law?

Yeah, you should probably check a country's laws before you electronically infiltrate their corporations, banking system, or military computers. This isn't about citizens in other countries simply minding their own business. For those that are wondering how foreigners can be charged with US law, look up "extradition treaty". For those with whom we haven't signed such a treaty, look up "financial sanctions" or "asset forfeiture".

How purposefully obtuse do you have to be not to get this?

Re:How can foreigners be charged under US law?

[NicBenjamin]

This is ridiculous. Law is part of the agreement between citizens and their government. Citizens get certain benefits like public education and healthcare, and in return must pay the government taxes and obey their laws. If the citizen disagrees with this, he can resign his citizenship, but by doing so loses the benefits of citizenship as well.

Foreigners, on the other hand, have no such agreement, and therefore it's ridiculous to charge them. What's next, Saudi Arabia charges me for having a beer tonight? North Korea charges me for criticizing their regime? Should I serious have to look up every single country's law before I do something, just to make sure I'm not breaking some obscure country's law?

He's not charging them. He's not arresting them. He's got multiple sets of powers, and he isn't using the law enforcement one here because there is no actual statute passed by Congress to deal with the problem.

He's using his military powers, which are incredibly broad because the Founders really did not want Congress and the Supreme Court to stop expeditions against Tecumseh-types on any basis whatsoever. He has an enemy that is partly military (China's cyber-ops unit is in the military), so he's probably good as long as he doesn't start abusing the law.

Re:How can foreigners be charged under US law?

[Applehu Akbar]

Yes, I'm aware that "asset forfeiture" is the catchall reason our government can use to steal private assets when it knows there is no law on its side, but trying to use this power internationally is going to elicit - I hope to hell, anyway - an armed response.

Re:How can foreigners be charged under US law?

[American Patent Guy]

You seem to be confused there. If he's issuing "sanctions" (as per the announcement), then there is some kind of judicial or administrative procedure. If he's waging war, then he can use the War Powers Act. (BTW: Obama declaring this to be a "national emergency" doesn't make it one sufficient to engage that Act.) That Act doesn't authorize a president to do whatever-the-hell-he-wants.

Re:How can foreigners be charged under US law?

[msobkow]

Funny. The Russians seem to have your backs to the wall over the Ukraine...

Re:How can foreigners be charged under US law?

[NicBenjamin]

Ever been in the military? Nothing involves more administrative procedures then military action. Even during our Civil War there were formal procedures to determine precisely what you were allowed to do to that dude on the gray coat.

As for your claims about statutory basis, I fully understand that Americans have this broad-based-delusion that Congress has a significant say over what the military actually does beyond a) the budget, and b) officer promotions; but there is simply no Constitutional basis for that claim. There's statutory basis, but the basis is generally "Congress pitched a huge hissy fit when President Jefferson used his powers to unilaterally invade the Barbary Pirates so he went along with it when they proposed a retroactive statute to authorize the operation." Then you get case law based on the resulting hissy-fit statutes, but here's the key thing:
Nobody ever claimed that anybody had the legal Power to Order the Fleet back into port after Jefferson sent them to Libya solely on his say-so. Nobody tried to make the legal case Nixon couldn't bomb Cambodia stand up in Court. The hissy-fit statutes like the War Powers Act are legitimate to the extent they are used by Congress to explain what, precisely, it intends to fund when it funds the military. They are clearly not legitimate to the extent that they could actually be used against a President in a Court of Law.

What's going on in this case is simple: it's established that Commanders-in-Chief can freeze the bank accounts of enemies of the US. This did require a statute, the PATRIOT Act, because it would not have been in the toolbox of an 18th-century monarch or George Washington. But now that it's established, and it's widely considered to have been a useful military tool against Al Qaeda, the administration can use it against anyone it thinks is a military opponent. Congress will bitch, because they always bitch.

But that doesn't mean PLA Col. Wu's attempt to get his bank account bank will actually work.

Re:How can foreigners be charged under US law?

[Dutch Gun]

I agree that asset forfeiture against citizens isn't warranted unless those assets are the direct gains of illegal activity. There are already punitive laws in place. This practice seemed to emerge with the "war on drugs", and continued with the war on terror.

I think a case could be made for asset seizure against foreign criminals, as there's no other way to punish them for crimes committed. I don't see why an "armed response" would be warranted if there's criminal activity involved. Of course, the big gotcha in all of this is that it's incredibly difficult to actually *prove* who's behind a cyber attack unless you can seize the person's personal computer.

Honestly, I think this is mostly saber-rattling aimed at NK and China, telling them that the US is willing to impose some financial hardships on anyone who attacks any US interests via the internet.

Re:How can foreigners be charged under US law?

[American Patent Guy]

Wow. I'm glad that you educated me. I had always thought that the Constitution granted the power to declare war to Congress alone.

I always thought, too, that there were civilian administrative procedures. I'm sure glad you let me know that that lady working in the drivers license division was drawing military hazard pay. And judges and courts ... all part of the military machine, eh?

... and that mystical power of the President to command the executives of banks in foreign countries ... I had no idea about that either. If you tell me Bigfoot is real, I'll believe that too.

Re:How can foreigners be charged under US law?

[IamTheRealMike]

For those that are wondering how foreigners can be charged with US law, look up "extradition treaty". For those with whom we haven't signed such a treaty, look up "financial sanctions" or "asset forfeiture".

Neither of those things involve charges. That's why they're effective - if they had to be backed by actual charges that went through an actual judicial system, the targets could win cases and get the sanctions dismissed. An arbitrary blacklist is a lot better from the viewpoint of the POTUS and his minions because what are you going to do about it? File an appeal?

This isn't about citizens in other countries simply minding their own business

Pretty staggeringly stupid position. Lots of countries have extradition treaties with the USA, including Germany. If you are OK with the head of the NSA being extradited, charged, found guilty of espionage and imprisoned in Europe or China then go right ahead and say such things ...

Re:How can foreigners be charged under US law?

[NicBenjamin]

How can the power to declare war be relevant to how the US responds to attacks on military infrastructure by foreign military units? Assuming it actually applies to cyber-attacks, pirate raids, or any other number of military attacks that don't involve full scale national mobilization, the war was already started by them.

I never said there weren't civilian administrative procedures. That's a strawman you're creating, apparently because the last time you actually thought about the President's military powers was the Sixth Grade. Every institution, civilian, military, educational, whatever has administrative procedures. The unique thing about military ones is that they start with the death sentence and go down, whereas civilian ones tend to start at nominal fines or being yelled at via paperwork and go up.

As for his power to command foreign banks, yes under US Law he has the power to command anyone to do anything within US Law. They don't necessarily have to obey, and the question as to whether the Courts would allow him to sanction the Royal Bank of Scotland for not freezing Col. Wu's account would actually be fairly interesting and involve statutory law; but if your argument is Obama does not have the right to send a nasty letter to RBC asking them to freeze a bank account and threatening DOOM if they disobey you're sadly mistaken.

US Banks are probably screwed. Just as Obama can enforce a quarantine via commander-in-chief in pretty much any way he wants (as long as he can convince the courts there's a commander-in-chief-style need for a quarantine), freezing Col. Wu's bank account is a perfectly reasonable to Colonel Wu fucking with Americans, so CitiBank better do that shit.

Re:How can foreigners be charged under US law?

[rioki]

Although I will concede that jurisdiction is a muddled concept with IT systems, but the following is true: They attack and/or penetrate IT systems that are located on US soil. Under international conventions, this is a crime. This is no different that when I throw a rock across the US/Canada border and damage your car, did the crime happen in the US or Canada? But even in China and North Korea there are laws against damaging IT systems and I am quite sure that they don't have exclusions for US IT systems. Now either they are private citizens and thus it is a criminal act and they are criminals or this is a government sanctioned act and they are soldiers and this is an act of war (i.e. not a crime).

Another puff of hot air from our Obama-in-chief

[American Patent Guy]

Obama has no authority to impose sanctions on anybody for these acts, unless (1) Congress passes a law that says he does or (2) a foreign country says he does, creating jurisdiction. Neither has happened.

Obama said "From now on, we have the power to freeze their assets, make it harder for them to do business with U.S. companies, and limit their ability to profit from their misdeeds" in the making (apparently) of an executive order. If the power existed, it existed prior to Mr. Obama's order because it was authorized by 1 or 2 above. Mr. Obama's declarations of power are worthy of the bottom of my birdcage.

This idiot of a reporter at The Stack dot com thinks that an executive order is "legislation". Someone should inform her that legislation almost always appears in the U.S. Code, not in some press release on the White House Blog. I can't wait for this administration to try to enforce these sanctions: they're going to get tossed out of court on their rear ends if they try.

Re:Another puff of hot air from our Obama-in-chief

[American Patent Guy]

So he's got the power to unilaterally rule a US Citizen in Yemen is an enemy of the US, and blow up said citizen with a drone (incidentally killing several others), but he can't freeze the US bank account of a Chinese military officer whose busily hacking Americans?

Until Congress changes it, yep. That's how it is, no matter how illogical it might seem.

When normal lawyers deal with the Commander-in-Chief clause, which has very few limits (the biggest is that it doesn't apply that often), they really get into trouble fast.

Nope. Look it up for yourself: http://en.wikipedia.org/wiki/W...

Re:Another puff of hot air from our Obama-in-chief

[NicBenjamin]

That is the least relevant statute on the books.

Why?

Because the Founders clearly didn't want Congress to have any say over day-to-day military operations. They explicitly designed the President's powers to totally pre-empt any Congressional claim to such control. Their reasoning was quite simple: in 1789 there was no telegraph, so a message to Congress asking for authorization to deal with a Spanish Governor who was trying to eat a little bit of Georgia would not be dealt with by Congress until everyone was already dead. The local garrison commander had to have the ability to order his forces into combat without Congressional authorization. Since he gets his legal authority from the President, that means the President also has to have the authority to authorize small-scale military operations without asking Congress.

Congress's checks on the local Army commander's authority were the facts that a) Congress could eliminate his regiment in the next budget, which would fire him, and b) since all military officer-level jobs are Congressionally confirmed they could also refuse to let him have another job.

The Declaration of War clause doesn't actually justify give Congress much power over anything but a Total War we start, and couldn't apply here because if the Chinese are attacking us we get to attack them back. They have started the War.

The "Necessary and proper" clause, combined with the changes in technology that have made Congressional control possible, would a good enough rationalization for a sane Supreme Court. But we do not live in a world where the Supreme Court is sane. We live in a world where the Supreme Court is dominated by textual Federalists who think the solution to this problem is to go through the Amendment process.

Re:so... no trial... no proof... no justice.

[TheReaperD]

Plus, you have the problem such as the hacking command center in Canada, ran by the US NSA, that launches attacks on the US with the intent on pointing the finger at other countries. How can anybody be sure it isn't a false flag attack as long as the NSA runs something like this?

Oh, and I'm pretty sure an order very similar to this would have happened if we had President Romney too. I'm not forgiving Obama for it but, the name in office matters very little any more nor does the party affiliation. The same corporations pull the strings. All the party hate serves is that people are watching Republicans or Democrats when they should be watching Northrop Grumman, Goldman Sachs, Bank of America, Monsanto, etc.