“Hacktivists” and the Ukraine-Russia Conflict: Legal Considerations

“Hacktivists” and the Ukraine-Russia Conflict: Legal Considerations

Legal Sidebari

“Hacktivists” and the Ukraine-Russia
Conflict: Legal Considerations
May 13, 2022
Since Russia’s February 24, 2022, invasion of Ukraine, a growing number of nongovernmental hackers
motivated by social or political objectives—so-called “hacktivists”—have conducted offensive
cyberspace operations against Russia. Some of these groups and individuals may be responding to a
February 26 tweet by Mykhailo Fedorov, Ukraine’s Vice Prime Minister and Minister of Digital
Transformation, who called for the creation of a volunteer “IT Army.” One scholar has cited this
invitation as “the first time that states have openly called for citizens and volunteers to cyberattack
another state.”
Ukraine’s volunteer IT Army—which may include “hundreds of thousands of hackers” from within and
outside Ukraine—may be working on “operational tasks” identified by the Ukrainian government. This
volunteer organization joins the International Legion of Ukraine as a way for foreign volunteers to
participate in the conflict. However, just as participation in the International Legion might result in
adverse legal consequences for volunteers who are U.S. nationals, various federal statutes might be
implicated should U.S. persons join the IT Army or otherwise conduct cyberspace operations against
Russian assets.
This Sidebar considers potential civil and criminal liability under federal law for individuals within the
United States who hack foreign governmental or nongovernmental computers. It first discusses the
potential applicability of two federal statutes to alleged hostile or malicious cyber activities targeting
Russia by hacktivists residing in the United States: the Computer Fraud and Abuse Act (CFAA) and the
Neutrality Act. It then presents several considerations for Congress as this situation evolves. Although this
Sidebar generally discusses volunteers acting on Ukraine’s behalf, the analysis below would also likely
apply to U.S. persons acting on Russia’s behalf against Ukraine.
The CFAA
One law potentially applicable to U.S. individuals who hack foreign computers is the CFAA, which
prohibits a variety of computer-related conduct and imposes civil and criminal penalties for violations of
its provisions. As potentially relevant to U.S.-based hackers targeting foreign computers, the CFAA
prohibits, among other things,
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 intentionally accessing a computer without authorization or in excess of authorization and
obtaining certain information from a financial institution or a protected computer
(18 U.S.C. 1030(a)(2)(A)-(C));
 knowingly accessing a protected computer without authorization or in excess of
authorization with the intent to defraud, if “such conduct furthers the intended fraud and
[the violator] obtains anything of value” (18 U.S.C. § 1030(a)(4));
 intentionally damaging a protected computer by knowingly transmitting a program,
information, code, or command (18 U.S.C. § 1030(a)(5));
 knowingly, and with intent to defraud, trafficking in passwords or similar information
granting access to a computer where such trafficking affects foreign commerce
(18 U.S.C. § 1030(a)(6)); and
 threatening to cause damage or obtain information from protected computers with an
intent to extort money or another thing of value (18 U.S.C. § 1030(a)(7)).
For purposes of the CFAA, a computer is any “electronic, magnetic, optical, electrochemical, or other
high speed data processing device performing logical, arithmetic, or storage functions,” including “any
data storage facility or communications facility directly related to or operating in conjunction with such
device . . . .” Courts have interpreted this definition broadly to include “any device that makes use of a[n]
electronic data processor,” including personal computers, servers, cell phones, smart devices, and
infrastructure controllers.
The CFAA defines a protected computer as, among other things, computers “used in or affecting interstate
or foreign commerce or communication, including a computer located outside the United States that is
used in a manner that affects interstate or foreign commerce or communication of the United States.” As
with the CFAA’s definition of computer, courts have construed the meaning of protected computer
broadly to include “effectively any computer connected to the Internet.” In addition, at least one court has
explained that the CFAA applies to acts committed by individuals in the United States against protected
computers outside the United States, as unauthorized conduct “basically happens simultaneously at the
locations of the accessor and the accessed computer.” For more information about the CFAA, see CRS
Report R46536, Cybercrime and the Law: Computer Fraud and Abuse Act (CFAA) and the 116th
Congress, by Peter G. Berris.
The CFAA and the Ukraine-Russia Conflict
Given the expansive definitions of computer and protected computer, it appears that the CFAA could
apply to individuals in the United States who engage in prohibited activities with respect to foreign
computer systems outside the United States. This liability could conceivably arise in several ways. For
example, news reports indicate that Ukraine-backed hackers have planned attacks on Russian railways
and its electrical grid. To the extent that these elements of Russia’s infrastructure meet the CFAA’s
definition of protected computer, provisions such as § 1030(a)(5)(A)—prohibiting intentional damage of
a protected computer through the knowing transmission of a program, code, or command—could
potentially apply to attacks on Russian computers in the same way such attacks taking place entirely
within the United States would be subject to this provision. This could occur, for example, if a hacker
located in the United States (whether or not a U.S. citizen or national) knowingly transmitted a virus with
the intent of damaging Russian infrastructure, causing it to malfunction. Similarly, ransomware attacks
against Russian systems could potentially violate § 1030(a)(7), the CFAA’s prohibitions on damaging
protected computers or threatening to do so with intent to commit extortion.
Although the CFAA might apply as a matter of law to U.S. hackers’ attacks on Russian computers, it is
unclear, as a practical matter, whether the U.S. Department of Justice would choose to prosecute such

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conduct. It also seems doubtful that Russia would cooperate with prosecutors or even reveal whether such
cyberattacks had occurred, particularly in light of reports that it is trying to downplay and censor its
casualty numbers.
The Neutrality Act
Since 1794, the Neutrality Act and its precursors have prohibited U.S. nationals from taking certain
actions “against the territory or dominion of any foreign prince or state, or of any colony, district, or
people with whom the United States is at peace.” Among other conduct, the Neutrality Act prohibits U.S.
nationals from accepting a military commission or enlisting in a foreign military while within the
jurisdiction of the United States, with limited exceptions.
One provision of the Neutrality Act—18 U.S.C. § 960—prohibits individuals, while on U.S. soil, from
beginning, preparing the means for, furnishing the money for, or taking part in “any military or naval
expedition or enterprise” against a nation with whom the United States is at peace. While this section
seems to potentially encompass U.S. hackers targeting foreign computers, particularly if doing so would
aid another country engaged in hostilities with the target, it does not appear that § 960 has ever been
applied to individuals engaged in hacking or other cyber activities. On the contrary, more than a century
ago in Wiborg v. United States, the Supreme Court defined military expedition narrowly as “a journey or
voyage by a company or body of persons, having the position or character of soldiers, for a specific
warlike purpose.” The Court has not considered the scope of § 960 since 1896, and it is possible that a
court could revisit this issue. Several legal scholars have recognized this possibility, citing the growing
rise of cyber warfare and an evolving understanding of the types of conduct that constitute military action
to speculate that § 960 could potentially be applied to hacking or other cyberattacks. Under the current
definition of military expedition or enterprise, however, it seems unlikely that U.S. hackers could violate
§ 960 through purely cyber activities. One possible exception might be if the hackers’ activities
“provide[d] or prepare[d] a means for” a military expedition or enterprise, such as gathering intelligence
about Russian troop positions that was used by Ukraine to launch a conventional attack. For more
information about the Neutrality Act, see CRS In Focus IF12068, U.S. Nationals and Foreign Military
Service, by Jennifer K. Elsea, Jonathan M. Gaffney, and Alan Ott.
Considerations for Congress
It appears that U.S. hackers’ involvement in the Ukraine-Russia conflict could violate the CFAA and,
under certain circumstances, the Neutrality Act. Those laws, however, contain enough ambiguity that it is
unclear whether courts would find those laws applicable to such actions by a U.S.-based group or
individual. It is also unclear whether the Department of Justice would prosecute any such offenses or
whether Russia would cooperate with any investigations necessary to prosecute such conduct.
If Congress believes that current laws do not adequately prohibit U.S. hackers’ participation in foreign
conflicts, it may seek to clarify the scope of the CFAA or Neutrality Act to unambiguously proscribe
attacks on foreign governments’ computers. For example, Congress could define military expedition
under § 960 to include offensive cyberspace operations. If Congress were to do so, § 960 would likely
prohibit additional conduct, such as a foreign government’s cyberattack on another nation with the
participation of U.S. volunteers, or U.S. hackers supplying a foreign government with passwords or
information regarding vulnerabilities in another nation’s systems. Depending on how broadly Congress
statutorily defines military expedition, it might be possible for U.S. hackers acting independently from a
foreign government to violate § 960, just as the Supreme Court has recognized that “[a] few men deluded
with the belief of their ability to overturn an existing government or empire” may do so when launching a
conventional military expedition.

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Conversely, if Congress wanted to explicitly allow U.S. hackers’ assistance to Ukraine or other foreign
powers faced with unprovoked attacks, it might consider amending the CFAA and Neutrality Act to
exempt cyberspace operations against foreign governments in limited circumstances. Allowing this
exception, however, may have unintended domestic or foreign policy consequences, such as the target of
these cyberspace operations viewing them as sanctioned by the U.S. government. There has been a great
deal of debate regarding the advisability and legality of counterattacks against initial hacks—so-called
“hacking back”—and it seems likely that concerns raised with respect to this topic would be exacerbated
in the context of foreign relations if such provisions were adopted.
Absent congressional action, courts could potentially determine whether the CFAA or Neutrality Act
apply to U.S. hackers’ attacks on foreign computers. As discussed above, such judicial action could
possibly include revisiting the definition of military expedition or enterprise under § 960 in light of an
evolving understanding of that phrase. A court’s ability to reach these issues, however, would depend on
whether the Department of Justice prosecutes alleged violations of those acts and the degree to which a
foreign government cooperates with such prosecutions.

Author Information

Jonathan M. Gaffney

Legislative Attorney

Disclaimer
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