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1. Unpacking US Cyber Sanctions

Author:
Allison Peters and Pierce MacConaghy
Publication Date:
01-2021
Content Type:
Commentary and Analysis
Institution:
Third Way
Abstract:
Malicious cyber activity poses one of the greatest threats to America’s national, economic, and personal security. Yet, the perpetrators of these crimes largely operate with pure impunity and face little consequences for their actions. This is particularly the case for cybercriminals who cost the US economy anywhere from $57 billion to $109 billion in 2016 alone.1 Since 2015, the United States has imposed targeted sanctions (e.g., asset freezes, travel bans) on over 300 individuals and entities in response to malicious cyber activity.2 Many of these sanctions were issued under the cyber-related sanctions program administered by the Department of Treasury and established by a series of Executive Orders under Presidents Obama and Trump and bills passed by Congress.3 Sanctions have largely been imposed on individuals with ties to Iran, Russia, and North Korea, and, in about half of these cases, sanctions have followed indictments. An overwhelming majority of these sanctions have targeted individuals with suspected links to government entities and, only recently, have cyber sanctions targeted cybercriminals.4 As targeted sanctions increasingly become a tool deployed by the US government to punish malicious cyber actors, it remains unclear whether they are having an impact in changing behavior. Research on the impact of sanctions more broadly indicates that sanctions can be an effective tool to impose consequences on bad actors and change their actions when employed multilaterally, as part of a coherent strategy, and effectively messaged.5 However, imposing sanctions on malicious cyber actors without continuously reassessing their impact and the expected reciprocal actions by the target(s), risks a number of potentially negative outcomes. While Congress introduced legislation in the 116th Congress to impose new or codify existing cyber-related sanctions into law,6 it has not exercised the necessary oversight over the Executive Branch’s strategy in issuing cyber-related sanctions and determining their efficacy. With other countries now following America’s lead in issuing these sanctions, the time is ripe for the new Congress to push for an inter-agency, holistic assessment of the impact of US cyber-related sanctions.7 And with cybercrime increasingly threatening all sectors of the US economy, Congress must call for an evaluation as to whether sanctions on non-state cybercriminals should increasingly be used.
Topic:
Science and Technology, Sanctions, Cyberspace, and Digitalization
Political Geography:
North America and United States of America

2. Taking Action on Cyber Enforcement: Assessing US Legislative Progress in the 116th Congress

Author:
Michael Garcia and Pat Shilo
Publication Date:
02-2021
Content Type:
Commentary and Analysis
Institution:
Third Way
Abstract:
The 116th Congress experienced events like no other in American history, including unprecedented levels of malicious cyber activity. Global estimates say that ransomware attacks have increased by 148% since February 2020, with many US hospitals and schools falling victim and having their operations suspended.1 Leading up to and during the pandemic, Members of the 116th Congress responded and drafted cybersecurity legislation, introducing 316 bills to tackle the issue—a 40% increase from the previous Congress. This memo presents a comprehensive analysis of the cybersecurity legislation introduced in the 116th Congress and is a successor to our memo assessing the cybersecurity legislation in the previous Congress. Unlike the 115th Congress, the two chambers of the 116th were each under the control of a different party. Still, more than half of the introduced bills were bipartisan, including 85% of the bills signed into law. However, only 11% of the introduced bills focused on imposing consequences for the human actors behind cyberattacks, such as imposing sanctions or strengthening laws to prosecute criminals to hold them accountable for their actions. Following the trend of past congresses, most of the bills focused on protecting data and securing critical infrastructure. But while defending data and infrastructure is important, the lack of legislation to address the challenges of imposing consequences on the human actor suggests that Congress should prioritize introducing and passing bipartisan legislation that reduces the impunity with which malicious cyber actors, particularly cybercriminals, act. Here are the main takeaways from the bills introduced last Congress: Cybersecurity-related legislation increased by 40% since the 115th Congress. Of the 316 bills introduced, 14 became law, with nine related to appropriations or agency authorizations legislation. However, only 36 of the 316 bills introduced in the 116th Congress, and just three of the 14 provisions signed into law, focused on imposing consequences on the human actors behind cyberattacks. Cybersecurity remains a largely bipartisan issue. Over 50% of all legislation and 85% of all bills signed into law had a bipartisan co-sponsor.
Topic:
Security, Science and Technology, Cybersecurity, Legislation, and Cyberspace
Political Geography:
North America and United States of America

3. Follow the Money: Few Federal Grants are Used to Fight Cybercrime

Author:
Michael Garcia
Publication Date:
02-2021
Content Type:
Special Report
Institution:
Third Way
Abstract:
Like traditional crime, not all cybercrime rises to the level that requires a federal response. And like other crimes, victims will call upon state and local law enforcement to respond.1 They are unprepared. The 18,000 law enforcement agencies in the United States lack the tools, personnel, and resources to respond to cybercrime effectively. State and locals have turned to federal funding to fill these gaps, but federal government grants do not prioritize combatting cybercrime. The Justice Department (DOJ) has never identified cybercrime as an “Area of Emphasis” for their main criminal justice grant that awards state and local criminal justice agencies $400-$550 million annually.2 And while DOJ and the Department of Homeland Security (DHS) provided nearly $2 billion that state and local officials could use for cyber enforcement purposes in Fiscal Year (FY) 2019, data from DHS implies that very little is used for cybercrime. Only 2% of all DHS preparedness grant programs were used for all cybersecurity needs in FY 2019.3 Moreover, just three grants in FY 2019 were solely dedicated to cybercrime with a total budget of $12.7 million.4 As a result, only 45% of local law enforcement agencies have access to adequate digital evidence resources, according to one survey. This leads to a backlog of un-analyzed evidence needed to investigate cybercrime and a sense of futility about law enforcement’s ability to close cases.5 While Members of Congress have introduced several bills to create dedicated cybersecurity grant programs for state and local entities, these proposals tend to not include cyber enforcement needs as an eligible expense.6 Moving forward, Congress should: Call on DOJ and DHS to prioritize combatting cybercrime as a main law enforcement issue within their grants. Require prioritization of cyber enforcement needs in grant programs administered by DOJ and DHS in annual appropriations bills; and List cyber enforcement spending as an eligible expense in any bills creating new cybersecurity grant programs for state and local governments.
Topic:
Crime, Law Enforcement, Cybersecurity, Police, Justice, and Cyberspace
Political Geography:
North America and United States of America

4. The Militarization of Cyberspace? Cyber-Related Provisions in the National Defense Authorization Act

Author:
Michael Garcia
Publication Date:
04-2021
Content Type:
Commentary and Analysis
Institution:
Third Way
Abstract:
With Congress struggling to pass stand-alone cybersecurity legislation, the National Defense Authorization Act (NDAA) is now the primary vehicle to pass all matters of cybersecurity legislation. Because the annual defense bill typically requires provisions to have a tie to national security, other cyber issues, like those pertaining to criminal justice, tend to be excluded. As a result, the authorities and resources awarded to Department of Defense (DoD) cyber mission far outpace those provided to civilian agencies responsible for partnering with state, local, private, and international partners. With ransomware and cyber incidents at an all-time high, Congress should either include a new title in future Defense bills to bolster US cyber enforcement and civilian agencies’ capabilities or pass a cyber-omnibus bill to fix policy gaps and provide commensurate funds to federal and local agencies to combat malicious cyber activity. In this paper, we analyzed the last five NDAAs (2017-2021) to chronicle Washington’s reliance on the NDAA to shepherd through a wide swath of cybersecurity legislation. We found that: Members of Congress included 290 cyber-related provisions in the past five NDAAs, with the past two NDAAs accounting for 60% of those provisions. In fact, the FY 2021 NDAA contained 380% more cyber-related provisions than the FY 2017 NDAA. The 179 cyber-provisions included in the past two NDAAs far outpace the 14 cybersecurity bills that the 116th Congress passed (two of which were those NDAAs). Across 13 categories, three of the top four were aimed at the DOD core cyber missions, such as changing organizational processes and structures, protecting DoD assets, and engaging with foreign partners while deterring nation-state adversaries. In FY 2020, the number of non-DoD-related cyber provisions began increasing, such as supply-chain security and industrial policy, critical infrastructure protection, and election security. The provisions in these NDAAs helped improve US offensive cyber capabilities, implement measures to deter cyber adversaries, and shore up our cybersecurity defenses, all of which are needed. But because cybersecurity is a multifaceted issue that expands beyond national security and touches on criminal justice, workforce development, private-sector collaboration, and privacy issues, Congress must ensure it takes a holistic approach when creating cybersecurity laws.
Topic:
Defense Policy, Science and Technology, Military Strategy, Legislation, and Cyberspace
Political Geography:
North America and United States of America