Trump Admin Cyber Strategy Centers Private Sector in Offensive Cyber Operations

On March 6, the Trump administration released its new National Cybersecurity Strategy. One notable proposal envisions an expanded role for private sector companies in offensive operations against “sophisticated military, intelligence, and criminal adversaries,” ransomware groups, and cyber criminals. Unlike defensive cyber operations that many entities engage in lawfully on their own networks, such as network monitoring and identifying and blocking malicious traffic, offensive cyber operations (sometimes referred to as “hack back” or “active defense”) typically involve an entity taking action on someone else’s network. The strategy’s proposal to authorize the private sector’s use of aggressive offensive operations raises longstanding legal and policy questions and concerns, without offering many new answers, and may present substantial legal and compliance risk that private sector companies will need to navigate with care.

The cyber strategy arrives amid a period of significant flux in federal cybersecurity policy. Private sector actors have had to muddle through multiple lapses and reauthorizations of the Cybersecurity Information Sharing Act of 2015 (CISA 2015), which industry has long relied upon for, among other things, liability protections for monitoring their networks for malicious threats and sharing cyber threat indicators with public and private partners. Meanwhile, the Trump administration has reduced the Cybersecurity and Infrastructure Security Agency’s (CISA) workforce by approximately one-third. At the same time, the administration procured $1 billion for offensive cyber operations through the One Big Beautiful Bill Act—even as it cut roughly $1.2 billion from civilian defensive cybersecurity budgets. Following on the heels of 2024’s Salt Typhoon, a reported hack of the Federal Bureau of Investigation’s wiretap and surveillance systems, does not build confidence in the country’s current defensive cybersecurity posture.

What follows is breakdown of this latest policy shift, a brief background on past proposals for private sector offensive operations, current hurdles to private sector participation in offensive cyber operations, past and pending legislative efforts in the space, private sector and international interest in private sector offensive operations, and practical steps companies should take to evaluate the impact of the strategy on their businesses.

Formulation of the Cyber Strategy

The cyber strategy is a slim, five-page document, far briefer than prior administrations’ strategies, organized around six “policy pillars”: (1) “Shape Adversary Behavior”; (2) “Promote Common Sense Regulation”; (3) “Modernize and Secure Federal Government Networks”; (4) “Secure Critical Infrastructure”; (5) “Sustain Superiority in Critical and Emerging Technologies”; and (6) “Build Talent and Capacity.”

The strategy’s tentpole proposal , the one for private sector participation in offensive cyber operations, is laid out in the first pillar “Shape Adversary Behavior.”

This pillar declares two key positions for the administration. First, the U.S. government will unleash the full suite of its cyber capabilities, including offensive cyber capabilities, to “detect, confront, and defeat cyber adversaries before they breach our networks and systems. ” And second, it will enlist the support of the private sector in its efforts by “creating incentives to identify and disrupt adversary networks and scale our national capabilities.” It goes on to assert that the U.S. government will use these capabilities— alongside other “instruments of national power” and in cooperation with its democratic allies— to disrupt adversaries in cyberspace, counter the spread of surveillance technologies used to repress citizens, and uproot cybercriminal infrastructure.

In connection with the cyber strategy , President Trump also issued on the same day an executive order directing federal agencies to coordinate efforts to rapidly respond to cybercrime, scam centers, and other cyber-enabled fraud and predatory schemes against Americans.

Despite commentary that the strategy would take an aggressive posture toward authorizing offensive cyber operations, the released proposal stops short of explicitly authorizing private companies to conduct cyber operations against foreign adversaries. Still, the offer of incentives to the private sector to “identify and disrupt adversary networks” is a substantial shift in federal policy and an endorsement of growing private sector adoption of active defense measures and use of private litigation to takedown cyber criminals.

While the strategy may offer limited insight into what “incentives” the government plans to offer, or the exact role the private sector will play in offensive cyber operations, commentary from government cyber officials ahead of the strategy’s release indicates that they envision companies taking an active part in defending the nation against nation-state actors, not just individual criminals or criminal groups. White House National Cyber Director Sean Cairncross, principal advisor to the president on cybersecurity policy and strategy, described the cyber strategy ’s central premise as moving beyond reactive defense toward proactive operations that focus on “on shaping adversary behavior, introducing costs and consequences.” Similarly, National Security Council Senior Director for Cyber Alexei Bulazel has stated that the administration is “unapologetic, unafraid to do offensive cyber.”

Prior to the strategy’s release the administration had been soliciting feedback from industry stakeholders, though it is unclear what, if any, of that feedback made it into the final document.

Related to this new strategy, the administration also reportedly plans to update the three foundational policy documents that govern the federal government’s cyber operational authorities: NSPM-13, the classified 2018 memorandum establishing the approval process for offensive cyber operations; PPD-41, which governs federal coordination when a major cyber incident occurs on U.S. soil; and NSM-22, which sets standards for critical infrastructure protection across sectors.

Background on Past Proposals for Private Sector Offensive Operations

Proposals for private sector entities to take an offensive approach to cyber threat actors have been the subject of heated public debate for more than a decade. Calls to authorize private sector offensive operations hit a fever pitch in or around 2014, as public and private sector entities began to raise the alarm that state-sponsored and private theft of intellectual property through cyberattacks against private businesses had resulted in the “greatest transfer of wealth in history,” and likely had cost the U.S. economy “hundreds of billions of dollars annually,” millions of U.S. jobs, and significant private sector operational disruptions from loss of data and productivity.

The arguments against private sector offensive operations are well known. Alongside the hurdles for private sector entities, described below, a frequent concern with any proposal for private sector offensive operations has been the risk—the government will not be able to control the actions taken by private sector entities and, as a result, private entities could very easily cross a legal line (including by violating U.S. or a foreign country’s law or sovereignty), just as easily harm innocent third parties as the intended target, or even trigger undesirable escalation dynamics with a foreign adversary government. At the same time, opponents have been skeptical that more aggressive private sector offensive cyber operations will in fact have the intended effects on threat actors, given their demonstrated resilience to coordinated law enforcement takedowns and ability to hide behind false flags and exploit innocent third-party infrastructure for cyber operations.

The amorphous nature of offensive cyber operations, generally, and the unpredictable circumstances under which they would be authorized present a particular challenge in this ongoing debate. Techniques applied appropriately in one scenario could just as easily be unlawful if used in another. And these techniques could range from passive monitoring of adversary behavior (such as honeypots, sinkholes, and tarpits) to active cyber exploitation or disruption of third-party networks. Beyond this, the legality of a particular technique and its consequences can depend on where the measure is implemented—in other words , on the defender’s own network, a third-party network (including whether the third party has consented), or the adversary network.

Certain techniques can also blur the boundary between passive and active defense. For example, beacons are hidden commands embedded in files or programs that, once exfiltrated by an adversary, will signal their location to the defender. While the technique is implemented on the defender network, the code activates on the adversary (or third party) network and its transmission of data from that network back to the defender could be considered unauthorized, potentially in violation of federal and state law (though proponents might argue that the attacker consented to the beacon’s data transmission by misappropriating the files).

These ambiguities, and the accompanying legal and policy risks, have contributed to past failures to develop a successful policy proposal for private sector offensive operations.

Current Hurdles to Private Sector Offensive Operations

Despite the administration’s ambitions, there are significant obstacles to creating an effective private sector offensive operations strategy. For one, there is no existing federal legal framework that authorizes private companies to independently conduct offensive cyber operations. On the contrary, a number of laws prohibit this conduct. Meanwhile, there are significant potential collateral consequences for private sector actors that might disincentivize them from taking up the call and that they would need to navigate carefully should they choose to do so.

Federal, State, and Foreign Laws Criminalize Hacking

Most importantly, any private company that undertakes offensive measures against a cyber threat actor would likely face significant exposure under the Computer Fraud and Abuse Act (CFAA), often described as the federal anti-hacking statute.

The CFAA, codified at 18 U.S.C. § 1030, broadly criminalizes accessing a computer “without authorization” or “exceed[ing] authorized access.” Section 1030(a)(5)(A) specifically prohibits “knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer.” The statute’s definition of “protected computer” encompasses essentially any device connected to the internet. The law also provides for civil liability for the same conduct, which creates meaningful risk even if the U.S. government were to choose not to prosecute a violation.

Proponents of these kinds of initiatives often note that the CFAA does not prohibit any “lawfully authorized investigative, protective, or intelligence activity” of a U.S. law enforcement agency, U.S. intelligence agency, or state or political subdivision of a state. 18 U.S.C. 1030(f). But no court has addressed whether this exception provides any protection for private sector entities engaged to perform these activities on behalf of the U.S. government and, if so, under what circumstances. At the very least, it is unlikely that a court would interpret this provision to extend to private companies engaged in independent offensive operations, without government direction or involvement.

Additionally, most state laws similarly criminalize hacking. These laws include New York’s computer trespass law ( N.Y. Penal Law § 156.10), California’s unauthorized computer access and fraud law ( Cal. Penal Code § 502), and Virginia’s computer trespass law ( Va. Code § 18.2-152.4).

Companies could also run afoul of foreign hacking laws, such as the U.K.’s Computer Misuse Act 1990; Germany Criminal Code prohibitions of data espionage, interception, alteration, and sabotage; and China’s criminal invasion of computer systems law, among others.

Risk of Harm to Innocent Parties and Resulting Consequences

While technical attribution of cyber adversaries has improved significantly since the “hack back” debate first began, misidentification of an attacker or the attacker’s infrastructure, or a failure to identify potential collateral consequences posed by an offensive measure, could result in significant harm to innocent parties, both domestic and foreign. And that kind of harm presents clear litigation risk, as noted above, including retaliatory litigation under the civil provisions of the CFAA or tort law, or even potential criminal prosecution. Meanwhile, harm to foreign entities could pose similar litigation and prosecution risks, alongside the additional risk of diplomatic incidents. Companies with personnel or assets overseas would need to be particularly attentive to such risks.

Even if an offensive cyber measure is effective at responding to an adversary, a retaliatory operation could still provoke escalation from any state-sponsored entities involved. This could result in the company being targeted by an even more sophisticated actor with greater resources and place the company at the center of an escalating geopolitical situation between the United States government and the foreign government.

Risk of Business Harms

A company’s involvement in offensive cyber operations could also pose risks to its business based on how these operations affect its market position and business relationships. For example, serious reputational risk may flow from potential harm to innocent third parties.

Customers and investors may also be concerned about potential risks to the company’s business, ultimately harming share price. Indeed, one potential concern for public companies will be whether involvement in a covert offensive cyber operation is a material event that must be disclosed to investors; and alternatively, whether non-disclosure creates additional risk. For emerging companies seeking funding, these risks could discourage future investments if not adequately addressed by compliance processes.

Just as important, engaging in offensive cyber operations could also potentially impact existing insurance agreements and may ultimately lead the company to lose certain protections or coverage under an existing insurance policy.

Current Legislative Proposals on Private Sector Offensive Operations

While private sector offensive operations have long been a topic of heated debate in the policy community, limited legislative proposals have been offered.

Earlier legislative efforts include the Active Cyber Defense Certainty Act (ACDC), first introduced in 2017 by then-Rep. Tom Graves (R-Ga. ). The ACDC would have, among other changes, amended the CFAA to create a defense from prosecution for private sector use of certain offensive measures against attackers. At the time, key government officials, including those at the National Security Agency and Department of Justice, exercised some skepticism regarding the value of involving private actors in offensive operations.

Earlier in this congress, Rep David Schweikert (R-Ariz. ) has introduced the Scam Farms Marque and Reprisal Authorization Act of 2025 (H.R. 4988), which would delegate to the president the authority to issue “letters of marque and reprisal,” a power granted to Congress under Article I, Section 8, and would support the commission of:

privately armed and equipped persons . . . to seize outside the geographic boundaries of the United States and its territories the person and property of any individual or foreign government, as applicable, who the President determines is a member of a criminal enterprise or any conspirator associated with an enterprise involved in cybercrime who is responsible for an act of aggression against the United States.

H.R. 4988 has been referred to the House Committee on Foreign Affairs.

Private Sector Implications

Companies across the technology, defense, critical infrastructure, and cybersecurity sectors, and other industries frequently targeted by foreign threat actors, should expect to be most impacted by the administration’s entreaties for an active private sector role in offensive cyber operations. Companies in these spaces will need to evaluate the legal, operational, and reputational implications of this policy shift, and closely weigh (and take opportunities to shape) new legal frameworks—either executive orders or legislation—that purport to authorize forms of private sector offensive activity currently prohibited under federal and state law.

To assess legal exposure companies approached by the federal government to participate in offensive cyber operations should conduct a thorough legal risk assessment before engaging. Until Congress enacts legislation creating affirmative legal authority and liability protections for private offensive cyber activity, the CFAA and state computer crime statutes remain in force, notwithstanding any executive order to the contrary. Companies should also not rely on informal government assurances that violations of federal law will not be prosecuted (nor would such agreements moot concerns regarding violations of state or foreign laws).

In addition to legal exposure, companies should also consider potential impacts to their business relationships, insurance coverage, and disclosure requirements prior to engaging.

Even if a company believes legal risks are minimal, they should carefully consider the reputational, customer relations, and investor relations implications of participating in offensive cyber operations. Depending on the company and its corporate mission, involvement in offensive cyber operations may face market pressure from customers and investors wary of the company’s involvement in activities with the U.S. military or intelligence agencies.

For those companies still interested in participating in these operations, they should move quickly to communicate their concerns and needs to the administration, in advance of expected, future implementing executive order(s). There will also likely be additional opportunities for private sector input during any subsequent administrative and legislative processes related to issues like liability protections, preemption of state law, operational oversight, and legal obligations.

Formal government sanction of private sector involvement in offensive cyber operations represents a significant—and potentially lucrative—business opportunity for private sector companies to hit back against cyber threat actors. But much depends on how the government implements its new approach—both in addressing the legal constraints that may apply, laying the groundwork internationally for this policy shift, and in the details of its engagements with those it is encouraging to take action.  And unless those companies do their diligence, and figure out how far they want to go, conducting offensive cyber operations could expose them to significant risks that far outweigh any potential reward.