Title: Active Cyber Defense Certainty Act
Policy area: Crime and Law Enforcement

Summary:
Active Cyber Defense Certainty Act
This bill amends the federal criminal code to limit the prosecution of computer fraud and abuse offenses where the conduct constituting an offense involves a response to, or defense against, a cyber intrusion.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4036 Introduced in House (IH)]

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115th CONGRESS
  1st Session
                                H. R. 4036

    To amend title 18, United States Code, to provide a defense to 
prosecution for fraud and related activity in connection with computers 
   for persons defending against unauthorized intrusions into their 
                   computers, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 12, 2017

   Mr. Graves of Georgia (for himself and Ms. Sinema) introduced the 
  following bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To amend title 18, United States Code, to provide a defense to 
prosecution for fraud and related activity in connection with computers 
   for persons defending against unauthorized intrusions into their 
                   computers, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Active Cyber Defense Certainty 
Act''.

SEC. 2. CONGRESSIONAL FINDINGS.

    Congress finds the following:
            (1) Cyber fraud and related cyber-enabled crimes pose a 
        severe threat to the national security and economic vitality of 
        the United States.
            (2) As a result of the unique nature of cybercrime, it is 
        very difficult for law enforcement to respond to and prosecute 
        cybercrime in a timely manner, leading to the existing low 
        level of deterrence and a rapidly growing threat. In 2015, the 
        Department of Justice prosecuted only 153 cases of computer 
        fraud. Congress determines that this status quo is unacceptable 
        and that if left unchecked, the trend in cybercrime will only 
        continue to deteriorate.
            (3) Cybercriminals have developed new tactics for 
        monetizing the proceeds of their criminal acts, making it 
        likely that the criminal activity will be further incentivized 
        in the absence of reforms to current law allowing for new cyber 
        tools and deterrence methods for defenders.
            (4) When a citizen or United States business is victimized 
        as the result of such crime, the first recourse should be to 
        report the crime to law enforcement and seek to improve 
        defensive measures.
            (5) Congress also acknowledges that many cyberattacks could 
        be prevented through improved cyber defensive practices, 
        including enhanced training, strong passwords, and routine 
        updating and patching to computer systems.
            (6) Congress determines that the use of active cyber 
        defense techniques, when properly applied, can also assist in 
        improving defenses and deterring cybercrimes.
            (7) Congress also acknowledges that many private entities 
        are increasingly concerned with stemming the growth of dark web 
        based cyber-enabled crimes. The Department of Justice should 
        attempt to clarify the proper protocol for entities who are 
        engaged in active cyber defense in the dark web so that these 
        defenders can return private property such as intellectual 
        property and financial records gathered inadvertently.
            (8) Congress also recognizes that while Federal agencies 
        will need to prioritize cyber incidents of national 
        significance, there is the potential to assist the private 
        sector by being more responsive to reports of crime through 
        different reporting mechanisms. Many reported cybercrimes are 
        not responded to in a timely manner creating significant 
        uncertainty for many businesses and individuals.
            (9) Computer defenders should also exercise extreme caution 
        to avoid violating the law of any other nation where an 
        attacker's computer may reside.
            (10) Congress holds that active cyber defense techniques 
        should only be used by qualified defenders with a high degree 
        of confidence in attribution, and that extreme caution should 
        be taken to avoid impacting intermediary computers or resulting 
        in an escalatory cycle of cyber activity.
            (11) It is the purpose of this Act to provide legal 
        certainty by clarifying the type of tools and techniques that 
        defenders can use that exceed the boundaries of their own 
        computer network.

SEC. 3. EXCEPTION FOR THE USE OF ATTRIBUTIONAL TECHNOLOGY.

    Section 1030 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(k) Exception for the Use of Attributional Technology.--
            ``(1) This section shall not apply with respect to the use 
        of attributional technology in regard to a defender who uses a 
        program, code, or command for attributional purposes that 
        beacons or returns locational or attributional data in response 
        to a cyber intrusion in order to identify the source of an 
        intrusion; if--
                    ``(A) the program, code, or command originated on 
                the computer of the defender but is copied or removed 
                by an unauthorized user; and
                    ``(B) the program, code or command does not result 
                in the destruction of data or result in an impairment 
                of the essential operating functionality of the 
                attacker's computer system, or intentionally create a 
                backdoor enabling intrusive access into the attacker's 
                computer system.
            ``(2) Definition.--The term `attributional data' means any 
        digital information such as log files, text strings, time 
        stamps, malware samples, identifiers such as user names and 
        Internet Protocol addresses and metadata or other digital 
        artifacts gathered through forensic analysis.''.

SEC. 4. EXCLUSION FROM PROSECUTION FOR CERTAIN COMPUTER CRIMES FOR 
              THOSE TAKING ACTIVE CYBER DEFENSE MEASURES.

    Section 1030 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(l) Active Cyber Defense Measures Not a Violation.--
            ``(1) Generally.--It is a defense to a criminal prosecution 
        under this section that the conduct constituting the offense 
        was an active cyber defense measure.
            ``(2) Inapplicability to civil action.--the defense against 
        prosecution created by this section does not prevent a United 
        States person or entity who is targeted by an active defense 
        measure from seeking a civil remedy, including compensatory 
        damages or injunctive relief pursuant to subsection (g).
            ``(3) Definitions.--In this subsection--
                    ``(A) the term `defender' means a person or an 
                entity that is a victim of a persistent unauthorized 
                intrusion of the individual entity's computer;
                    ``(B) the term `active cyber defense measure'--
                            ``(i) means any measure--
                                    ``(I) undertaken by, or at the 
                                direction of, a defender; and
                                    ``(II) consisting of accessing 
                                without authorization the computer of 
                                the attacker to the defender's own 
                                network to gather information in order 
                                to--
                                            ``(aa) establish 
                                        attribution of criminal 
                                        activity to share with law 
                                        enforcement and other United 
                                        States Government agencies 
                                        responsible for cybersecurity;
                                            ``(bb) disrupt continued 
                                        unauthorized activity against 
                                        the defender's own network; or
                                            ``(cc) monitor the behavior 
                                        of an attacker to assist in 
                                        developing future intrusion 
                                        prevention or cyber defense 
                                        techniques; but
                            ``(ii) does not include conduct that--
                                    ``(I) intentionally destroys or 
                                renders inoperable information that 
                                does not belong to the victim that is 
                                stored on another person or entity's 
                                computer;
                                    ``(II) recklessly causes physical 
                                injury or financial loss as described 
                                under subsection (c)(4);
                                    ``(III) creates a threat to the 
                                public health or safety;
                                    ``(IV) intentionally exceeds the 
                                level of activity required to perform 
                                reconnaissance on an intermediary 
                                computer to allow for attribution of 
                                the origin of the persistent cyber 
                                intrusion;
                                    ``(V) intentionally results in 
                                intrusive or remote access into an 
                                intermediary's computer;
                                    ``(VI) intentionally results in the 
                                persistent disruption to a person or 
                                entities internet connectivity 
                                resulting in damages defined under 
                                subsection (c)(4); or
                                    ``(VII) impacts any computer 
                                described under subsection (a)(1) 
                                regarding access to national security 
                                information, subsection (a)(3) 
                                regarding government computers, or to 
                                subsection (c)(4)(A)(i)(V) regarding a 
                                computer system used by or for a 
                                Government entity for the furtherance 
                                of the administration of justice, 
                                national defense, or national security;
                    ``(C) the term `attacker' means a person or an 
                entity that is the source of the persistent 
                unauthorized intrusion into the victim's computer; and
                    ``(D) the term `intermediary computer' means a 
                person or entity's computer that is not under the 
                ownership or primary control of the attacker but has 
                been used to launch or obscure the origin of the 
                persistent cyber-attack.''.

SEC. 5. NOTIFICATION REQUIREMENT FOR THE USE OF ACTIVE CYBER DEFENSE 
              MEASURES.

    Section 1030 of title 18, United States Code, is amended by adding 
the following:
    ``(m) Notification Requirement for the Use of Active Cyber Defense 
Measures.--
            ``(1) Generally.--A defender who uses an active cyber 
        defense measure under the preceding section must notify the FBI 
        National Cyber Investigative Joint Task Force and receive a 
        response from the FBI acknowledging receipt of the notification 
        prior to using the measure.
            ``(2) Required information.--Notification must include the 
        type of cyber breach that the person or entity was a victim of, 
        the intended target of the active cyber defense measure, the 
        steps the defender plans to take to preserve evidence of the 
        attacker's criminal cyber intrusion, as well as the steps they 
        plan to prevent damage to intermediary computers not under the 
        ownership of the attacker and other information requested by 
        the FBI to assist with oversight.''.

SEC. 6. VOLUNTARY PREEMPTIVE REVIEW OF ACTIVE CYBER DEFENSE MEASURES.

    (a) Pilot Program.--The Federal Bureau of Investigation 
(hereinafter in this section referred to as the ``FBI''), in 
coordination with other Federal agencies, shall create a pilot program 
to last for 2 years after the date of enactment of this Act, to allow 
for a voluntary preemptive review of active defense measures.
    (b) Advance Review.--A defender who intends to prepare an active 
defense measure under section 4 may submit their notification to the 
FBI National Cyber Investigative Joint Task Force in advance of its use 
so that the FBI and other agencies can review the notification and 
provide its assessment on how the proposed active defense measure may 
be amended to better conform to Federal law, the terms of section 4, 
and improve the technical operation of the measure.
    (c) Prioritization of Requests.--The FBI may decide how to 
prioritize the issuance of such guidance to defenders based on the 
availability of resources.

SEC. 7. ANNUAL REPORT ON THE FEDERAL GOVERNMENT'S PROGRESS IN DETERRING 
              CYBER FRAUD AND CYBER-ENABLED CRIMES.

    The Department of Justice, after consultation with the Department 
of Homeland Security and other relevant Federal agencies, shall deliver 
an annual report to Congress not later than March 31 of each year, 
detailing the results of law enforcement activities pertaining to 
cybercriminal deterrence for the previous calendar year. The report 
shall include--
            (1) the number of computer fraud cases reported by United 
        States citizens and United States businesses to FBI Field 
        Offices, the Secret Service Electronic Crimes Task Force, the 
        Internet Crimes Complaint Center (IC3) website, and other 
        Federal law enforcement agencies;
            (2) the number of investigations opened as a result of 
        public reporting of computer fraud crimes, and the number of 
        investigations open independently of any specific crimes being 
        reported;
            (3) the number of cyber fraud cases prosecuted under 
        section 1030 of title 18, United States Code, and other related 
        statutes involving cybercrime, including the resolution of the 
        cases;
            (4) the number of computer fraud crimes determined to have 
        originated from United States suspects and the number 
        determined to have originated from foreign suspects, and 
        details of the country of origin of the suspected foreign 
        suspects;
            (5) the number of dark web cybercriminal marketplaces and 
        cybercriminal networks disabled by law enforcement activities;
            (6) an estimate of the total financial damages suffered by 
        United States citizens and businesses resulting from ransomware 
        and other fraudulent cyberattacks;
            (7) the number of law enforcement personnel assigned to 
        investigate and prosecute cybercrimes; and
            (8) the number of active cyber defense notifications filed 
        as required by this Act and a comprehensive evaluation of the 
        notification process and voluntary preemptive review pilot 
        program.

SEC. 8. REQUIREMENT FOR THE DEPARTMENT OF JUSTICE TO UPDATE THE MANUAL 
              ON THE PROSECUTION OF CYBER CRIMES.

    (a) The Department of Justice shall update the ``Prosecuting 
Computer Crimes Manual'' to reflect the changes made by this 
legislation.
    (b) The Department of Justice is encouraged to seek additional 
opportunities to clarify the manual and other guidance to the public to 
reflect evolving defensive techniques and cyber technology that can be 
used in manner that does not violate section 1030 of title 18, United 
States Code, or other Federal law and international treaties.

SEC. 9. SUNSET.

    The exclusion from prosecution created by this Act shall expire 2 
years after the date of enactment of this Act.
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