The May 7 indictment of a Chinese national and unnamed conspirator for hacking and stealing data from nearly 80 million customers of the health care company Anthem in 2015, which researchers previously linked to Chinese state-sponsored actors, is the latest iteration of a four-year U.S. government trend of publicly charging state-backed hackers. The use of criminal charges as an instrument of foreign policy is striking in its recent prominence and in the complex equities it implicates for policymakers.
Two camps have emerged in the debate on the deterrent power of charging foreign hackers. Some argue that charging hackers lacks serious impact. For example, Jack Goldsmith and Robert Williams have argued in Lawfare that the strategy of charging Chinese hackers for theft of U.S. trade secrets has failed to deter such activity, citing the public charges against Chinese state-affiliated hackers in 2017 and 2018 as reason to believe Chinese cyber theft of American intellectual property had not ceased. Others consider such charges an effective tool for deterring malicious cyber activity. John Carlin, who oversaw the early charging of foreign hackers as assistant attorney general for national security from 2014 to 2016, has written about charging foreign hackers more broadly as part of a package of tools that the U.S. government can use to disrupt and deter state-sponsored hacking.