There are few, if any, cybercrime acts that would fall outside the scope of the CFAA. The problem standing in the way of prosecutions is that cyber criminals are often outside the reach of U.S. law enforcement. Many of them reside in foreign countries that are not party to an extradition treaty with the U.S. The law enforcement void often leaves companies on their own in defending their networks and systems, again and again, against the same criminal gangs. As a result, some experts have suggested that U.S. companies should have the ability to take more aggressive actions against criminal hackers. That is, not just defend their networks but have the ability to launch invasive counterattacks against the criminals to identify the criminal, monitor their behavior, and destroy stolen files, among other things. These proposals often go by the monikers “hacking back” and “active defense.” Supporters of these measures have argued that the CFAA should be modified to enable companies to take such actions. Are these proposals a good idea? What could go wrong? If the CFAA is revised to authorize these measures, what provisions could be included to mitigate some of the problems that might arise?
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