The Dangerous Digital Frontier: Privatizing Cyberwarfare and Threatening Democratic Accountability

Executive Summary

The Trump administration’s consideration of dramatically expanding private sector involvement in offensive cyberwarfare represents one of the most consequential national security policy shifts in recent memory. This proposal, outlined in drafts of the forthcoming National Cybersecurity Strategy, would fundamentally transform how America conducts digital warfare by potentially authorizing private companies to execute offensive cyberattacks on behalf of the government. While proponents argue this expansion is necessary to counter growing threats from nation-state adversaries, the implications for democratic accountability, constitutional oversight, and international stability demand rigorous public scrutiny and congressional debate.

The Proposed Policy Shift: Facts and Context

According to former senior U.S. officials familiar with the administration’s thinking, the proposed changes would represent a substantial departure from current practice. While private companies already contract with the government to develop elements of cyberoperations, the new initiative would drastically expand their role into direct offensive actions. This expansion raises immediate questions about legality, practicality, and the fundamental nature of military operations in the digital age.

The legal framework currently prohibits private companies from conducting offensive campaigns online, ranging from disruptive breaches to persistent assaults targeting adversaries. Changing this prohibition would require congressional approval, though previous legislative proposals have surfaced on Capitol Hill. Some lawmakers have advocated for allowing companies to “hack back” when attacked, while others have suggested adapting historical concepts like Letters of Marque - constitutional provisions last authorized during the Civil War that allowed private citizens to seize enemy ships - for cyberspace.

This policy consideration comes as President Trump’s nominee to lead United States Cyber Command and the National Security Agency, Lieutenant General Joshua M. Rudd, faces confirmation hearings. The timing suggests this aggressive approach may become central to America’s cyberstrategy moving forward.

Expert Perspectives and Potential Complications

Retired Lieutenant General Charles L. Moore Jr., former deputy commander of U.S. Cyber Command, co-authored a recent report with Brett Goldstein, a cybersecurity expert who held senior Defense Department positions, exploring private companies’ potential role in U.S. cyberoperations. Their analysis, published by Vanderbilt University’s Institute of National Security, highlights significant risks.

General Moore explicitly warns that without Cyber Command overseeing all operations, “you’re going to have actions that take place by private companies against nation-states that believe that was the formal position of the United States, and now you see escalation, and potentially even kinetic conflict come of that. You’re going to see chaos.” This chilling assessment underscores how quickly digital conflicts could spiral into real-world military confrontations when private actors operate without strict governmental control.

The authors propose potential safeguards, including embedding uniformed cyberoperators within private companies to execute attacks or having companies develop code under virtual oversight before handing it to Cyber Command. However, even with these precautions, the fundamental shift remains concerning.

The Case for Expansion: Capacity and Expertise

Proponents argue that turning to the private sector is necessary to meet growing cyberthreats. General Moore and Mr. Goldstein contend that “the demand signal is too large, the threat landscape too dynamic and the technical talent pool too competitive for the department to meet future requirements with government personnel alone.” This perspective suggests that traditional government approaches cannot keep pace with sophisticated adversaries like China and Russia.

Joe Lin, a former Navy Reserve officer who runs cyberwarfare startup Twenty, echoes this sentiment, arguing that the United States needs to be “much more proactive and pre-emptive in disrupting our adversaries, in going after our adversaries, in imposing costs on our adversaries.” Mr. Lin suggests that offensive cyberoperations may be “less escalatory than people previously believed,” representing a shifting consensus within national security circles.

The Democracy Imperative: Why This Proposal Demands Scrutiny

As a firm believer in constitutional governance and democratic accountability, I find this proposed expansion deeply troubling on multiple levels. The privatization of warfare represents a dangerous departure from foundational American principles that military power should remain firmly under civilian democratic control. While private sector expertise undoubtedly has value in addressing complex cyberthreats, outsourcing offensive operations crosses a critical line that could undermine the very democratic institutions we seek to protect.

The constitutional framework established by our founders carefully balanced war powers between the executive and legislative branches for precisely this reason - to prevent the unchecked use of military force. By potentially authorizing private companies to conduct offensive cyberoperations, we risk creating a shadow military apparatus operating outside traditional chains of command and accountability. This isn’t merely a technical or tactical consideration; it’s a fundamental question about who controls the use of force in our democracy.

General Moore’s warning about potential chaos cannot be overstated. When private actors conduct offensive operations, the risk of miscalculation, misattribution, and escalation increases exponentially. Nation-states interpreting corporate cyberattacks as official U.S. actions could respond with conventional military force, potentially triggering conflicts that spiral out of control. The thin line between cyber operations and kinetic warfare becomes dangerously blurred when profit-driven entities enter the battlefield.

Historical Parallels and Uncharted Territory

The proposal to adapt Letters of Marque for cyberspace deserves particular scrutiny. While this constitutional provision has historical precedent, applying eighteenth-century privateering concepts to twenty-first-century digital warfare represents a profound misunderstanding of both technological reality and democratic governance. What constituted acceptable private military action in the age of sailing ships bears little relevance to the complex, interconnected digital landscape where attacks can instantly cross borders and affect millions of innocent civilians.

Moreover, the comparison to privateering overlooks how dramatically warfare and international norms have evolved. The modern framework of international law, developed over centuries, establishes clear boundaries between state and non-state military action for good reason. Undermining these norms in cyberspace could have cascading effects across all domains of conflict.

The Slippery Slope of Privatized Conflict

Perhaps most concerning is how this proposal fits into broader trends toward privatizing military functions. While private military contractors have played roles in conventional conflicts for decades, authorizing offensive cyberoperations represents a qualitative leap into new territory. Unlike physical battlefield operations, cyberattacks can be conducted remotely, with ambiguous attribution, and with potentially catastrophic consequences for critical infrastructure.

The profit motive inherent in corporate operations creates inevitable conflicts of interest when applied to national security. Companies incentivized by contracts and shareholder returns may prioritize activities that generate revenue over those that serve genuine security needs. This dynamic could lead to mission creep, where cyberoperations expand beyond their original scope without proper democratic oversight.

Constitutional Safeguards and Democratic Oversight

Any consideration of expanding private sector involvement in offensive cyberoperations must begin with rigorous congressional debate and clear legal frameworks. The Constitution’s careful separation of powers exists precisely to prevent exactly this kind of potentially reckless expansion of executive military authority. Congress must reassert its war powers authority and establish unambiguous boundaries before any policy changes move forward.

The American people deserve transparency about how their government conducts warfare in their name. Secretive arrangements with private companies undermine public accountability and democratic control. We cannot allow vital national security decisions to be made behind closed doors, with corporate interests potentially influencing policy for financial gain rather than national interest.

A Balanced Approach: Leveraging Expertise Without Sacrificing Principles

This is not to argue that the private sector has no role in national cybersecurity. The expertise, innovation, and agility found in technology companies represent valuable resources that government should appropriately leverage. However, there are ways to harness these capabilities without surrendering core democratic principles.

Enhanced collaboration, information sharing, and defensive partnerships between government and industry can strengthen our cybersecurity posture without crossing the dangerous threshold into privatized offensive operations. Research and development partnerships, talent exchange programs, and coordinated defense initiatives can build capacity while maintaining proper civilian control and accountability.

Conclusion: Protecting Democracy in the Digital Age

The proposal to expand private sector involvement in offensive cyberwarfare represents a pivotal moment for American democracy. While the cyberthreat landscape undoubtedly demands innovative responses, we must not sacrifice foundational principles of democratic accountability and constitutional governance in the name of security. The framers of our Constitution established careful checks and balances on military power for enduring reasons that remain just as relevant in the digital age as they were in the eighteenth century.

As we confront complex twenty-first-century threats, we must remember that preserving our democratic institutions is ultimately what we’re defending. We cannot protect freedom by undermining the very systems designed to secure it. The Trump administration, Congress, and the American public must engage in thorough, transparent debate about these proposals before embarking on a path that could fundamentally alter the relationship between military power, private enterprise, and democratic accountability.

The stakes could not be higher. Getting this wrong could mean unleashing uncontrollable digital conflicts, eroding constitutional safeguards, and creating a dangerous precedent that future administrations might expand in unpredictable ways. We must approach these questions with the seriousness they deserve, ensuring that any policy changes strengthen rather than undermine the democratic principles that make America worth defending.