The Obama administration last year with a great noise, adopted a new document that serves as a basis for the imposition of economic sanctions to punish and deter foreign hackers who cause damage to the economic and national security of the United States.
Including last year’s threats to use this tool helped to get the Chinese President’s promises, according to which his country will stop hacker attacks on American companies for the purpose of obtaining trade secrets to Chinese companies.
But this fall, the authorities came to the conclusion that this presidential decree can not be applied (in the form in which it was written), to death for committing the most serious recent cyberprivacy taken against the United States. That is, for hacking Russian hackers of the computer systems of democratic organizations, the attack on the state electoral system and interference in the presidential election.
Since time is not waiting, the White house, according to American officials, working on how to adapt the decree to punish the Russians. President Obama last week promised that Moscow’s intervention in U.S. elections will be answered.
One as unquestionable way of application of the existing decree against the Russian suspects would be to declare the electoral system part of the “critical infrastructure” of the United States. Or could be made in the Ordinance changes that allow to freely use it against the new threats of interference in elections.
Representatives of the administration would also make it harder for President, Donald trump how to cancel measures taken by them.
“The challenge here is partly to do everything possible to publicize as much as possible of the facts. Or pass the facts to Congress, and place it so that it was difficult to reverse, and undo it,” said one of the senior representatives of the administration, which (and others) agreed to discuss an internal debate on the condition of anonymity.
This presidential order Obama issued in April 2015, thereby creating a mechanism for the imposition of sanctions as a tool to prosecute people who cause harm to computer systems involved in performing such important tasks as the production of electricity or the transportation, or those who receive a competitive advantage at the expense of cyberformula trade secrets.
This presidential decree allows the authorities to freeze the United States assets of foreigners involved in the implementation of operations in cyberspace that threaten national security or financial stability of the United States. The sanctions also allow you to block trade deals with those responsible for such actions by individuals and prohibit their entry into the United States.
But only a year later, the Russian military intelligence, according to U.S. officials, broke into the mail server of the national Committee of the democratic party and stole a huge array of e-mails that a few months was published on the WikiLeaks website. Then followed the publication of other materials, including stolen by hackers e-mail correspondence of the head of the election headquarters of Hillary Clinton, John Podestà (John Podesta).
“In fact, it was technologically easy, but had a strong impact,” said an expert on sanctions and national security from the law School of new York University Zachary Goldman (Zachary Goldman). A presidential decree 2015 did not provide for sanctions against hackers who steal the correspondence and discarded it on WikiLeaks or trying to interfere in the election. “It was a guidance document published in a specific time to address specific complex problems,” he said.
Therefore, officials “it is necessary to take certain legal tricks to “fix” a precedent with hacker attack on the server of the Democrats under the existing presidential decree. Or they should write a new decree,” says Goldman.
Administration officials would like to Obama before leaving office has used this decree to demonstrate its practical value.
“When the President took office, had not so many tools that could be used as a response” to the malicious acts in cyberspace, says Ari Schwartz (Ari Schwartz), former senior Director for cybersecurity in the national security Council. “To have a tool for the imposition of sanctions is really important. It can be used to make very serious allegations — this method is not as radical as the bombing of the country, but more effective than sending a telegram from the state Department”.
The national security Council came to the conclusion that the use of a presidential decree against the Russian hackers is impossible, because of their malicious actions in cyberspace are not subject to its terms, which provide for the imposition of sanctions for damage to critical infrastructure or theft of trade secrets.
“You need to be able to say that a) the existing electoral infrastructure — such as public databases was critical infrastructure and that b) Russian actions have actually caused damage — said on condition of anonymity, the representative of the administration. Are two straps that need to be overcome
Although it is believed that associated with the Russian authorities, hackers have penetrated into the registration database voter data, at least one state, these data, they are not forged, officials said.
According to some analysts, the electoral system of States could be categorized as “public institutions”, which is one of the 16 sectors of critical infrastructure identified by the Ministry of internal security of the United States.
As another solution you can apply the presidential decree in relation to other Russian “defendants” (for example, the hackers who stole trade secrets), and then in a public or private message to make clear that the United States believes its electoral system is part of the critical infrastructure.
The idea is to not only punish, but also to have a deterrent effect.
“I was equally worried about what happened to us during the elections, and what will happen to us in the future, said another official. — I firmly believe that Russians, and others will say, “it All worked out perfect in 2016, so let’s keep doing it”. But in our country elections are held every two years.”
Deterrent can serve even the threat of sanctions. Officials and experts say the agreement reached last year between the President of China XI Jinping and Barack Obama that China stop commercial cyber-espionage. XI Jinping sat down at the negotiating table after last summer the news reported that the Obama administration is preparing to impose sanctions against Chinese companies.
The situation is complicated by the fact that transition team trump is not yet conducted with the White house serious long meetings on cybersecurity issues — including possible application of the presidential decree about introduction of sanctions for cyber attacks. This tightening process is causing confusion among officials, who fear that the success of the administration in the field of cyber security could unravel if the new administration will not be able to understand their meaning.
Sanctions are not a panacea. Obama noted that “we have already imposed against Russian set of sanctions” for their actions in Ukraine. So, according to some experts, there is no doubt that adding new sanctions will have a serious impact on the Kremlin to change its behavior. But in combination with other measures they can be effective.
As officials said, as one of the variants could be involved in the Russian criminal responsibility, but the FBI still have not collected enough evidence which could be presented as grounds for starting a criminal case. At some point Federal prosecutors and FBI agents in San Francisco addressed the issue of whether to charge the crime to the person (or people) who worked under the name Guccifer 2.0 allegedly involved in operations conducted by Russian influence, and whose identity has not been established.
Before the election, the administration has warned Russia, using diplomatic channels. Obama spoke with Russian President Vladimir Putin in September at the G20 summit in China. About a week before the election, the United States sent to Moscow a message in the format of “hot line”, using a special channel for communication in crisis situations, created in 2013 in the framework of the Centre for nuclear threat reduction at the state Department. According to officials, in this message, the administration, in particular, have asked Russia to stop hacker attacks on the voter registration system and election system of the States. It was the first use of this system. Russian, according to officials, it seems that wish has been fulfilled.