Congress, Worried About Cyber? Fill a Key DOJ Position

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Congress, Worried About Cyber? Fill a Key DOJ Position
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Political inaction threatens to undermine our country’s cyber agenda at time of unrelenting threats. President Trump is not going to identify a White House point person for cyber, so federal agencies may define U.S. leadership. But a key player, the U.S. Department of Justice, is missing a Senate-confirmed head of its Criminal Division. This sharply limits the potential for the DOJ to make cyberspace safer and go after bad actors. 

The DOJ needs to show the world that the United States will make good on its promise to increase the costs of attack to hackers. If the Senate wants to promote cybersecurity, it should quickly confirm nominee Brian Benczkowski to be the assistant attorney general for the Criminal Division.

DOJ’s Criminal Division Is a Key Cyber Warrior

The Justice Department is bringing important cybersecurity prosecutions, indicting cybercriminals working for the Islamic Revolutionary Guard Corps and other global criminals who harm the United States. It is quarterbacking takedowns, such as the shutdown of AlphaBay, and disrupting the Kelihos botnet. The DOJ has unique tools to address cybercrime, and the Criminal Division is critical to expanding those efforts. 

The DOJ should be at the center of work to secure cyberspace. The president’s National Security Telecommunications Advisory Committee says the department “should increase takedown efforts that have successfully mitigated the impact of botnets. The U.S. Government should increase incentives, particularly within DOJ, to make preventing cybercrime and disrupting botnets a higher priority.”

Attorney General Jeff Sessions created a Cyber-Digital Task Force. This should highlight the Criminal Division, which does more than bring cyber cases. It houses the Office of International Affairs, which manages cooperation between the United States and other countries on electronic evidence collection, data transfers, and the arrest and extradition of cybercriminals. This is critical to effective global law enforcement, but is most effective when the division has a leader to engage directly with non-U.S. counterparts. 

The Computer Crime and Intellectual Property Section brings cases and advises the 94 U.S. attorney offices on anti-hacking and surveillance law. Its 40 attorneys work on cutting-edge issues that underpin cybersecurity efforts across the government. CCIPS also provides guidance to the private sector on coordinated cyber vulnerability disclosure programs, information sharing, and antitrust issues. This section’s vital work should innovate and be leveraged across the government by Criminal Division leadership.

Calls abound for more cyber investigations and prosecutions, as well as creative measures like botnet takedowns. The Department of Homeland Security wants to “work closely with … the law enforcement community, to reduce threats by aggressively investigating, disrupting, and defeating criminal actors and organizations that use cyberspace to carry out their illicit activities.” DOJ leadership can advocate for resources to address cyber work. Likewise, leadership is key to international coordination, which is critical to address inherently global cyber challenges; this is precisely what Criminal Division leadership does.

A Leadership Vacuum at DOJ Is a Missed Opportunity

A well-qualified nominee to lead the Criminal Division has been pending for almost a year, during which time an acting assistant attorney general has been at the helm. While this keeps daily business moving, it deprives the DOJ of an appointee with the political authority to engage international counterparts. This delay does a major disservice to the United States and like-minded countries that are looking for aggressive law enforcement partners to help develop norms, disrupt criminal activities, and bring prosecutions. Congressional leaders on both sides of the aisle have called for increased attention to cyber risks of all kinds – from election system vulnerabilities to critical infrastructure threats to data breaches. A fully empowered Criminal Division can move ahead on those and other threats. 

Cyberspace is a complex and high-stakes environment, full of international safe havens for criminals, nation-state attackers, and complicated relationships. Our allies should have a fully empowered law enforcement partner. And, without bold U.S. leadership, we risk ceding our influence and moral authority as other countries move ahead on cyber. 

Confirm Mr. Benczkowski. 

Megan Brown served as counsel to two U.S. attorneys general and worked with senior Department of Justice leadership. She is a partner at Wiley Rein LLP, leading its cybersecurity work for global clients, a member of the U.S. Chamber of Commerce Cybersecurity Leadership Council and a visiting fellow at the National Security Institute at George Mason’s Antonin Scalia Law School.



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