[Senate Hearing 114-906]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 114-906

                   CYBER CRIME: MODERNIZING OUR LEGAL
                   FRAMEWORK FOR THE INFORMATION AGE

=======================================================================





                                HEARING

                               before the

                        SUBCOMMITTEE ON CRIME AND
                               TERRORISM

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION
                               __________

                              JULY 8, 2015
                               __________

                           Serial No. J-114-23
                               __________

         Printed for the use of the Committee on the Judiciary




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                        www.judiciary.senate.gov
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                   U.S. GOVERNMENT PUBLISHING OFFICE

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                       COMMITTEE ON THE JUDICIARY

                  CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont, Ranking 
JEFF SESSIONS, Alabama                 Member
LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

            Kolan L. Davis, Chief Counsel and Staff Director
      Kristine Lucius, Democratic Chief Counsel and Staff Director



                  SUBCOMMITTEE ON CRIME AND TERRORISM

              LINDSEY O. GRAHAM, South Carolina, Chairman
DAVID VITTER, Louisiana              SHELDON WHITEHOUSE, Rhode Island, 
JEFF SESSIONS, Louisiana               Ranking Member
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
                                     AL FRANKEN, Minnesota

                 David Glaccum, Majority Chief Counsel
                  Ayo Griffin, Minority Chief Counsel
































                  
                            C O N T E N T S

                              ----------                              

                           OPENING STATEMENTS

                                                                   Page

Graham, Hon. Lindsey O...........................................     1
Whitehouse, Hon. Sheldon.........................................     3

                               WITNESSES

Bitkower, David..................................................     4
    Prepared statement...........................................    28
    Questions submitted with no response returned................    66

Ellis, Jen.......................................................    17
    Prepared statement...........................................    53
    Responses to written questions...............................    68

Johnson, Doug....................................................    15
    Prepared statement...........................................    45

Wright, Bill.....................................................    18
    Prepared statement...........................................    56

                                APPENDIX

Items submitted for the record...................................    27


 
                   CYBER CRIME: MODERNIZING OUR LEGAL
                   FRAMEWORK FOR THE INFORMATION AGE

                              ----------                              

                        WEDNESDAY, JULY 8, 2015

                              United States Senate,
                                Committee on the Judiciary,
                       Subcommittee on Crime and Terrorism,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:21 p.m., in 
Room 226, Dirksen Senate Office Building, Hon. Lindsey O. 
Graham, Chairman of the Subcommittee, presiding.
    Present: Senators Graham [presiding], Cornyn, Whitehouse, 
Klobuchar, and Blumenthal.

          OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Chairman Graham. The Subcommittee will come to order. 
Senator Whitehouse is on his way, but I have been told I can go 
ahead and start.
    The title of this hearing is ``Cyber Crime: Modernizing our 
Legal Framework for the Information Age,'' and we have a very 
great panel, two panels, and I will go ahead and get started.
    Senator Whitehouse is probably the most informed person I 
have ever dealt with regarding all things cyber. I have enjoyed 
the relationship we have had as Chairman and when he was in 
charge. We had a good working relationship. He has been trying 
to push the Congress, the Senate in particular, to get more 
serious about the cyber threats we face.
    Today we are talking about the criminal aspects, espionage 
and theft. They tell me by 2029, that we can expect between 
espionage--cyber espionage and cyber theft, that could affect 
the world to about a trillion dollars. That is a stunning 
number to me, that as we look out into the future cyber 
espionage, stealing intellectual property, to get an advantage 
economically and literally stealing money out of an account 
could account for a trillion dollars worth of theft.
    Having a bank robber come into a bank and rob the bank and 
loot your account is one problem. When you compare the threats 
we face as a Nation to a cyber attack on a bank, they pale in 
comparison.
    The FBI and other organizations that I have been dealing 
with worry greatly about cyber attacks on our financial 
institutions. The legal framework we have in place is 20 years 
old, and technology has changed a great deal since then. The 
purpose of this hearing is to get ahead of what I think is 
going to be a major drain on our economy and, quite frankly, a 
threat to our way of life.
    Those of us who bank assume certain things; that when we 
put the money in the bank, it is going to be safely guarded and 
that we can rely upon our deposit being there when we need it. 
At the end of the day, our banking and financial services 
industry are under constant siege by criminal networks all over 
the world, many tied to terrorist organizations, constantly 
trying to break into their systems to steal money.
    On the commercial espionage front, nation-states like 
China, but other criminal enterprises, are constantly trying to 
short circuit the development of technology and steal 
intellectual property that has been developed in this country 
and other places through hard work and investment.
    I hope that the Congress will look at the draft that we 
have sent out from myself and Senator Whitehouse that Members 
of the Senate will look at it. We can get input and bipartisan 
support for what we are trying to do. Now, comes Senator 
Whitehouse. At the end of the day, I am very concerned about 
where the criminal enterprise in cyber is headed. We need to 
reform our laws and up our game and I would end on this.
    Under sequestration, the ability to defend this Nation 
against cyber threats is going down, not up. The FBI and other 
organizations at the Department of Justice tasked with 
defending us against cyber crime and espionage, their budget is 
going to be dramatically affected if sequestration is fully 
implemented.
    We often talk about the Department of Defense going down to 
420,000 personnel in the United States Army, the smallest Navy 
since 1915; one contingency Marine Corps and half the fighter 
squadrons in the Air force not being combat ready as a result 
of sequestration.
    We do not, in my view, talk enough about how our national 
security is affected on the nondefense side. How our way of 
life is very much at risk. The Department of Justice is on the 
front lines of many endeavors to protect this Nation, but you 
are the lead organization, the lead agency when it comes to 
dealing with cyber theft, cyber espionage and cyber crime.
    What we are doing in my view is short circuiting the 
ability to defend this Nation, requiring the Department of 
Justice to have to make draconian decisions between the growing 
threat of cyber crime and lone wolf attacks on our country. To 
those who say that we do not need to deal with sequestration on 
the nondefense side, I would argue that the Department of 
Justice, the FBI and other organizations are prime example of 
what we are losing in terms of capability if we continue to 
implement sequestration.
    We expect you to do more in the cyber arena. We expect you 
to do more in the lone wolf arena. We expect you to keep us 
safe, but our expectations are not realistic given what we are 
doing to your budgets, and it is just a matter of time before 
we pay a heavy price of short changing those who are defending 
this country.
    With that, I will turn it over to Senator Whitehouse.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Chairman. First of all, 
congratulations on your birthday, I think, tomorrow. Second, 
congratulations on the terrific leadership that you and our 
colleague, Senator Scott, showed in the wake of the tragedy in 
your home State, in Charleston. Thank you for the very strong 
bipartisan cooperation you have showed on cyber issues not just 
through this hearing, but back when we were trying to negotiate 
a comprehensive cyber bill and actually came pretty darn close.
    This hearing is important, and I am really grateful that 
you have allowed it to go forward and have been such a staunch 
advocate for these issues.
    The seriousness of the cyber threat is no longer a matter 
of debate. Recent events have made this very clear. Hackers 
have infiltrated sensitive State and Federal networks, they 
have stolen data on millions of Americans, terrorist groups 
around the world are expanding their efforts to wage cyber war 
against our critical infrastructure.
    American businesses continue to suffer relentless theft of 
their valuable intellectual property. Fighting this threat 
requires we have to do a better job of securing government 
networks, business and individual computers, we have to be 
better secured and really basic steps maintained by their 
private sector owners to protect their data and keep themselves 
from becoming victims.
    We need to increase the threat information that is shared 
between the private sector and the Government, but we cannot 
just play defense. Here in this Committee in particular we are 
interested to see that we go after cyber criminals and see to 
it that they are arrested and prosecuted wherever they may be 
found.
    I am encouraged that Federal law enforcement agencies and 
DOJ prosecutors are increasing their efforts to hold cyber 
criminals accountable.
    Just 2 weeks ago, one of the world's most wanted cyber 
criminals, Ercan, I am not sure I can pronounce this, 
Findikoglu, a man believed to be responsible for stealing more 
than $50 million from banks around the world was extradited to 
the United States where he now sits in an American jail 
awaiting trial.
    The leader of the international Blackshades criminal 
network, Alex Yucel, was recently sentenced to prison in an 
American courtroom for producing and selling a powerful form of 
malicious software that could be bought for less than $50 and 
was capable of taking complete control over victims' computers. 
Chinese military officers have been indicted by a U.S. grand 
jury. These are all very positive signs and I hope we see more 
action in the future.
    We have a responsibility in this Committee to make sure 
that our laws are up to date and many of our key cyber laws are 
as much as 30 years old. We could not then have anticipated the 
cyber universe we live in now and so we need to update things. 
I look forward to today's hearing. I hope our witnesses will 
share their thoughts about how we can update and strengthen our 
laws against cyber crime.
    I look forward to working with Chairman Graham in the days 
and weeks ahead to enact legislation that will give prosecutors 
and law enforcement agencies new and improved tools to go after 
criminal actors while protecting the legitimate activities 
millions of Americans engage in every day on the internet.
    If we take a balanced, thoughtful approach, I believe we 
can update our laws to strengthen our ability to stop hackers, 
to shut down botnets, to bring cyber criminals to justice, all 
while providing greater clarity for security researchers and 
ordinary internet users who should not have to fear Federal 
prosecution.
    I look forward to working with Chairman Graham toward that 
goal and I appreciate the witnesses being here today. Thank 
you, Mr. Chairman.
    Chairman Graham. Thank you. Could you please stand?
    [Witnesses are sworn in.]
    Senator Graham. Our first witness is Mr. David Bitkower. 
Did I get that right?
    Mr. Bitkower. You did, sir.
    Chairman Graham. Great. Deputy Assistant Attorney General, 
U.S. Department of Justice, Criminal Division and one of the 
leading experts on this area of the law. Welcome to the 
Committee.

            STATEMENT OF HON. DAVID BITKOWER, DEPUTY
                ASSISTANT ATTORNEY GENERAL, U.S.
            DEPARTMENT OF JUSTICE, CRIMINAL DIVISION
                         WASHINGTON, DC

    Mr. Bitkower. Thank you and good afternoon, Chairman 
Graham, Ranking Member Whitehouse and Members of the 
Subcommittee. Thank you for the opportunity to be here today to 
discuss legislative proposals that will enhance our ability to 
combat cyber crime and protect the privacy and the security of 
the American people.
    In particular, I would like to thank the Chair and the 
Ranking Member for their continued leadership on these 
important issues and also to wish the Chair a happy birthday.
    As the Attorney General has emphasized, fighting cyber 
crime is one of our Justice Department's highest priorities. 
Every day our society becomes more reliant on computer networks 
and electronic devices in almost every aspect of our lives.
    At the same time, however, individual hackers, organized 
criminal groups and nation-states are becoming more 
sophisticated at using these networks and devices against us--
stealing from our bank accounts, compromising sensitive and 
private information and even spying on innocent citizens 
through their webcams.
    These invasions of privacy make us feel vulnerable and 
unsafe and rightly so. The effects of these crimes are only 
compounded when we realize that cyber criminals often sell the 
stolen data to other criminals or even use it to extort and 
terrorize their victims.
    The Department's prosecutors and our law enforcement 
partners strive to protect our citizens and businesses and 
vindicate their privacy rights, but our laws have not always 
kept pace with global realities and advances in technology. 
That is why earlier this year the President announced 
legislative proposals designed to protect the online privacy 
and security of American citizens and companies.
    Among these proposals were targeted updates to the criminal 
laws that govern cyber crime. I would like to specifically 
discuss two of those proposals today. The first one addresses 
the ``insider threat,'' the threat to privacy and security 
caused by computer users who are authorized to access computers 
and networks but exceed that authority.
    As you know, the Computer Fraud and Abuse Act, or CFAA, is 
the primary statute that we use to charge computer crime cases. 
It applies to hackers located on the other side of the world 
who have no right to access your data, but it is also the 
statute we use to prosecute individuals such as Government or 
corporate employees who knowingly abuse their access to 
misappropriate sensitive data.
    For example, we have used this provision of the CFAA to 
charge corrupt police officers who were entitled to access law 
enforcement databases for official police purposes but who 
instead obtained confidential information from databases for 
personal reasons, or so they could sell it for profit.
    The same provision would also apply to corporate employees 
whose employers grant them specialized access to valuable 
information so they can do their jobs, but who then access that 
information contrary to their authorization.
    Unfortunately, recent judicial decisions have imposed 
obstacles to the Government's ability to prosecute cases like 
this in large parts of the country. As a result, corrupt 
insiders may be effectively immune from prosecution under the 
CFAA, even when they intentionally exceed the bounds of their 
legitimate access and steal their employer's intellectual 
property or invade the privacy of the people whose data is 
improperly accessed.
    These judicial decisions stem from the concern that the 
relevant provision of the CFAA could potentially make 
relatively trivial conduct a Federal crime such as checking 
baseball scores during lunch in violation of an employer's 
internet use policy.
    The Department has no interest in prosecuting such harmless 
acts. That is why we have proposed amendments to the CFAA that 
would address this concern while also making sure the law 
applies to those who commit serious security violations and 
invasions of privacy.
    We look forward to discussing these proposals further with 
the Subcommittee. The second legislative proposal I would like 
to highlight now would enhance our ability to combat botnets.
    As you know, botnets are networks of victim computers 
surreptitiously infected with malware, and criminals can use 
botnets to steal personal information from the infected 
computers or even hold that information for ransom.
    Criminals can also use botnets to commit distributed denial 
of service attacks or to conceal their locations and identities 
while committing other crimes such as exploiting children 
online.
    One powerful tool that the Department has used to disrupt 
botnets and free victim computers is the civil injunction. For 
example, civil injunctions were instrumental in our successful 
operations against the Coreflood and Gameover Zeus botnets, 
which liberated hundreds of thousands of compromised computers 
from the criminals who controlled them.
    The problem is that current law only permits courts to 
consider injunctions for a limited category of crimes such as 
certain financial frauds. Botnets, however, can be used for 
other kinds of illegal conduct as well, and the administration 
has therefore proposed clarifying that injunctions are 
available for the full range of crimes that botnets are used to 
commit.
    In my written statement, I describe several other 
legislative proposals that address problems such as spyware and 
the sale of our financial information abroad. We look forward 
to working with this Committee to address all of these issues 
in order to effectively protect the privacy and security of our 
citizens and businesses.
    Our cyber crime laws must continue to evolve to counter 
these cyber threats. Thank you, and I look forward to answering 
any questions.
    [The prepared statement of Mr. Bitkower appears as a 
submission for the record.]
    Chairman Graham. Thank you, very much. Have you been 
provided our discussion draft between me and Senator Whitehouse 
about how we can improve the statutes in question?
    Mr. Bitkower. Yes, Senator.
    Chairman Graham. What is your general view of what we are 
trying to do?
    Mr. Bitkower. As a general matter, we think the discussion 
draft is an excellent start, and it has many proposals that 
will increase our ability to combat cyber crime.
    Chairman Graham. To the average American, how would you 
explain the gap we have between the laws we need and the laws 
we have when it comes to protecting against corporate 
espionage, against basic theft of your hard earned money if it 
is in a bank or some other financial institution? What is the 
gap?
    Mr. Bitkower. Senator, the proposals that we have made and 
the proposals that your discussion draft addresses are, I think 
it is fair to say, a targeted set of enhancements to the 
current laws that we have.
    We do have currently authorities and capabilities to 
address a vast array of cyber crime, but we have observed 
through the prosecutions and investigations we have done that 
there are gaps in very specific areas such as the ones I just 
discussed in my opening statement.
    When it comes to corporate espionage, I think the biggest 
statutory gap we have now is the problem with being able to 
address insider threats in those affected circuits.
    Chairman Graham. If we could pass something like the draft 
proposal, do you think we would substantially close those gaps?
    Mr. Bitkower. I think we would substantially close the 
statutory gaps, yes, sir.
    Chairman Graham. Okay. If we failed to do so, what does 
that mean?
    Mr. Bitkower. That means that there are certain categories 
of criminal cyber activity that we are seeing today which will 
continue to go unaddressed.
    Chairman Graham. Okay. From an average American's point of 
view, what is more likely to happen to your money, a cyber 
theft or a bank robbery?
    Mr. Bitkower. I think doubtlessly a loss of financial 
information from a cyber theft is much more likely to occur.
    Chairman Graham. Thank you. Senator Whitehouse.
    Senator Whitehouse. With your permission, Mr. Chairman, I 
would like to yield to Senator Blumenthal, whose schedule is 
pressing and who needs to move on, and if it is fine with you, 
I will let him take my time and I will take his.
    Senator Blumenthal. Thanks. Thank you very much, Mr. 
Chairman, and I appreciate your having this hearing on this 
very important topic.
    As you know, in the Nosal case, the 9th Circuit held if 
Congress wants to incorporate misappropriation liability into 
the CFAA, it must speak more clearly, and then the circuit 
court went on, as you also know, to say that its narrow 
interpretation of the statute is, quote, ``more sensible 
reading of the text and legislative history of a statute whose 
general purpose is to punish hacking the circumvent--
circumvention of technological access barriers, not 
misappropriation of trade secrets, a subject Congress has dealt 
with elsewhere,'' end of quote.
    The administration's recent proposal on cyber crime defines 
``exceeds authorized access'' in very broad terms simply as, 
and I am quoting, ``for the purpose that the accessor knows is 
not authorized by the computer owner,'' end of quote.
    In your view, will that kind of broad terminology actually 
provide prosecutors and courts with the clarity they need?
    Mr. Bitkower. Thank you for the question, Senator 
Blumenthal, and yes, we believe that the language in our 
proposal would provide courts with the clarity that they need 
to address this threat.
    In fact, of course we thought that was one intent of 
Congress in the first instance when it passed the CFAA, but I 
think at this point after the circuit court decision you 
described, it would be helpful to clarify that.
    Senator Blumenthal. It would be helpful to clarify it?
    Mr. Bitkower. Yes.
    Senator Blumenthal. Because if your intent is not to 
include trivial offenses such as minor violations of the 
website's use policy, there need to be mechanisms in place to 
provide protections for a person who may not know that their 
conduct violates the computer's authorization but believes that 
their conduct may be harmless, and the kind of clarity you are 
talking about, I think, is necessary with such an expansive 
terminology.
    Mr. Bitkower. Yes, Senator, and there are, in fact, two 
different protections there that would protect against 
prosecution for trivial conduct.
    The first is the one you have identified that the statute 
would clarify that the accessor would have to know that their 
access was not authorized by the computer owner and as a second 
matter, the Government has proposed adding requirements to this 
provision of the CFAA, which would in fact narrow the 
application of the statute overall and only apply it in certain 
categories where valuable or sensitive information was 
accessed.
    Senator Blumenthal. Then going to the $5,000 figure, how 
did you arrive at that figure? What is the rationale or 
justification for it?
    Mr. Bitkower. Senator, the $5,000 number is one that in our 
view sets an appropriate line that carves out trivial or very 
minor conduct that the Federal Government would not typically 
have an interest in prosecuting.
    It is a number that appears in other similar statutes 
involving the theft of stolen property and the possession of 
stolen property, so it is a number that already exists in the 
code. It also already exists in the CFAA as an aggravating 
factor to separate harmful hacks from less harmful hacks.
    Senator Blumenthal. I am aware that it is used elsewhere in 
the code where perhaps the loss is more easily quantifiable 
where the financial impact is more easily or readily 
measurable.
    I am wondering whether it might fail to capture some of the 
serious crimes that may not meet that threshold.
    Mr. Bitkower. I think it is certainly correct that when we 
set a financial threshold to apply to exceeds authorized access 
violations, there will be certain violations that might be 
culpable or harmful that will not be able to be prosecuted 
anymore.
    The goal that we were following in trying to set a 
financial threshold was to make clear that for the category of 
truly trivial or harmless violations, not only are we not 
interested in prosecuting those cases, we think that ensuring 
that the law clearly applies to the serious crimes that we are 
trying to prosecute, it is worth it to make clear that there is 
that line. It is true however that that is a compromise 
position that you are hearing from the Government.
    Senator Blumenthal. Thank you. I appreciate your helpful 
testimony today and I look forward to continuing this 
conversation. Thanks.
    Mr. Bitkower. Thank you.
    Chairman Graham. Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman. Mr. Bitkower, 
welcome. It recently came to light that the Saint Louis 
Cardinals are under investigation for hacking the proprietary 
database of the Houston Astros which happens to have the best 
record in the American League West.
    I am not sure if it is fear or jealousy, but it could be 
difficult for a dynasty to watch an upstart like the Astros. I 
think we would all agree that none of this would justify 
cheating, or as appears to be the case here, potential criminal 
activity, and I hope the FBI and DOJ will take the ongoing 
investigation into any criminal activity seriously and ensure 
that any wrongdoing is fully investigated and prosecuted.
    According to reports, Cardinal's employees used a list of 
passwords left behind by Jeff Luhnow when he moved from the 
Cardinals to the Astros to log into the Astro system. I would 
just like to ask you a few hypotheticals, recognizing that we 
do not have all the facts, and we trust a thorough 
investigation will take place.
    Assuming these facts are true, is there a potential 
violation of the Computer Fraud and Abuse Act's prohibition 
against accessing a protected computer without authorization?
    Mr. Bitkower. Thank you, Senator, and, of course, and as 
you note, I am not in a position to talk about any particular 
case or any ongoing investigation.
    As a general matter, accessing a protected computer without 
authorization would be a violation of the CFAA.
    Senator Cornyn. As a general matter, could accessing such 
information which would include trade secrets by the Astros, 
would that--does that give rise to a potential illegal economic 
espionage charge as well?
    Mr. Bitkower. Again, as a general matter, accessing trade 
secrets from a protected computer could potentially violate two 
different statutes, both the protection for the computer itself 
under the CFAA as well as the trade secret statute.
    Senator Cornyn. As a general matter, if the leadership were 
aware of that hacking, could that mean that in addition to its 
employees, the franchise included could be charged with a 
violation of CFAA or trade secret laws?
    Mr. Bitkower. Again, speaking generally the question now 
goes, I think, to accessorial liability for a particular 
violation and the doctrines and statutes that govern whether 
one individual can be liable for the conduct of another are 
very fact specific.
    Certainly if there was a common plan or agreement to 
violate the law, there could be liability there.
    Senator Cornyn. My last question along these lines, 
hypothetical, a general question. What sort of remedies could 
be available for such illegal access to computer systems, 
assuming this general set of facts prove to be true?
    Mr. Bitkower. Again, without regard to any particular set 
of facts or any particular case, the CFAA carries both criminal 
liability as well as civil liability.
    Senator Cornyn. Let me ask you about the OPM hack. 
According to reports, the personal information of up to 18 
million Americans was stolen from the Office of Personnel 
Management.
    Because the stolen information has not yet appeared for 
sale on the dark web and the hack reportedly bears the 
signatures of Chinese hackers, many experts are saying that the 
Chinese government is using the data breach to build a database 
of personal information on Federal employees and, of course, 
some of the reports are that the very security clearance 
application forms with extensive personal information would be 
included, which would of course allow the hackers to build a 
profile on people who have classifications or who hold 
classified clearances.
    If this is true, what sort of remedies might be available 
to deal with such actions?
    Mr. Bitkower. Senator, again to just point out that, of 
course, I cannot comment on any particular investigation. The 
FBI is, of course, hard at work in investigating the OPM hack 
and, of course, I have read the same reports that you have and 
that you refer to today.
    If we talk about criminal access to Government databases, 
again the CFAA could well be implicated if there is 
unauthorized access to those databases. In fact, putting aside 
hacking by outsiders or hacking by foreign nation-states, one 
of the purposes of our targeted update proposals today is to 
make sure we can prosecute those cases even if it is an insider 
who is involved in a particular attack.
    When we pull back and look at the larger spectrum of cyber 
threats that include those from nation-states, criminal 
prosecution definitely can be part of our set of responses, but 
it certainly is not going to be a complete response, and the 
administration has taken a holistic approach that includes both 
criminal prosecution, diplomatic trade policy and other 
responses.
    Senator Cornyn. Refresh my memory, if the Chairman will 
indulge me. It seems to me the U.S. Government indicted four 
Chinese individuals for computer hacking in the not too distant 
past, but that is mainly a symbolic gesture because without 
ability to extradite those people for prosecution, that 
prosecution is not likely to occur. Do you agree?
    Mr. Bitkower. Senator, first of all we did indict five 
individuals last year. That prosecution is being handled by our 
National Security Division and the U.S. Attorney's Office in 
Pittsburgh.
    As a general matter, again without reference to this 
particular case, we do often indict foreign actors operating 
from abroad and they do often find themselves in American 
courtrooms to face justice. We would not rule out that justice 
could be achieved in any particular case.
    Senator Cornyn. They find themselves in American 
courtrooms?
    Mr. Bitkower. Yes, sir.
    Senator Cornyn. That is what I thought you said. Thank you.
    Chairman Graham. Let it be said that the Astros have no 
bigger fan or supporter than John Cornyn.
    [Laughter.]
    Senator Whitehouse. We will stipulate to that.
    Chairman Graham. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. I appreciate this. 
Thank you, Mr. Bitkower, for being here and also for your 
service to our country in a very complicated and fast moving 
area.
    The bill that we have been talking with you about focuses 
on foreign actors in a number of different ways. It clarifies 
that U.S. economic espionage statutes cover acts that are 
committed on behalf of a foreign government. It clarifies that 
foreign individuals who possess or traffic in American credit 
card numbers can be prosecuted even if they are not in the 
United States doing their criminal act.
    It improved the capacity for service on foreign defendants. 
In the spirit of those elements, could you just tell us a 
little bit about, in your experience, what is the role in the 
significance of foreign actors in cyber crime?
    Mr. Bitkower. Thank you, Senator, and thank you for the 
opportunity to answer that question. There is no doubt that in 
just about every complex cyber crime matter we handle here at 
the Department of Justice there is some foreign element of one 
kind or another. Whether it is individuals acting from abroad 
to target Americans or even individuals acting from the United 
States but using criminal infrastructure that can be located 
abroad in whole or part, and even individuals acting here where 
evidence winds up being abroad and in order to successfully 
investigate and prosecute the crime, we need access to that 
evidence.
    When we talk about foreign actors in particular, we have 
certainly seen foreign actors around the globe targeting 
American systems because of the valuable and sensitive 
information that is contained there. One of the greatest 
challenges we have in investigating and prosecuting these 
crimes is not only being able to prove what happened, but also 
attempting as Senator Cornyn referred to, to get them into our 
courtrooms to face justice.
    Senator Whitehouse. Fair to say that the internet has 
knocked down geographic borders that has made American victims 
much more vulneable to people who have never even set foot in 
the country but have access to a keyboard in Russia and Latvia 
and a great number of places around the world?
    Mr. Bitkower. That is exactly right.
    Senator Whitehouse. The legislation would make certain 
conduct a money laundering predicate or a RICO predicate. Could 
you tell us what the value is in making an offense a money 
laundering predicate or a RICO predicate?
    Mr. Bitkower. Certainly, Senator. One of the things we have 
observed in cyber crime in recent years is that organized 
criminal groups follow the money and they have observed that 
the internet is an excellent way to victimize Americans and 
American businesses. Therefore, complex cyber crime cases are 
often committed by organizations and they may even have an 
assembly line type of structure where one individual may 
develop the software to commit an intrusion, another individual 
may execute that intrusion and exfiltrate data. A third 
individual or set of individuals may then monetize that data by 
creating fake ATM cards or through other means.
    When we encounter criminal organizations, we find it is 
very effective to use the RICO statute. When they are, of 
course, using money to further their crimes or to conceal their 
profits, we like to use our money laundering statutes as well 
to make sure we hit them in the pocketbook.
    Adding the hacking statute as a predicate for money 
laundering or RICO would allow us in certain cases where we are 
targeting a criminal organization to do a more effective job of 
making sure that the charges capture the full range of activity 
and the sentence reflects the appropriate range of conduct.
    Senator Whitehouse. The size of these foreign criminal 
activities can be?
    Mr. Bitkower. They can be millions, tens of millions, 
hundreds of millions of dollars. We have an ongoing of actors 
involved in a carding forum.
    We have charged over 50 individuals. We have now convicted 
over 25 and the conduct in that case caused tens of millions of 
dollars in losses.
    Senator Whitehouse. Mr. Bitkower, I have admired the 
Department of Justice's civil efforts to go after botnets, 
starting with Coreflood and then onto Gameover Zeus and others. 
That is not traditionally part of the criminal law brief of the 
Criminal Division or the Division, but purging the net of these 
botnets really damages the criminal potential that they have 
for criminal actors.
    How has the integration been between the civil folks who 
are doing these botnet take downs and the criminal side? 
Sometimes there is a bit of tension between criminal and civil 
actors in the Department.
    I gather that has been cured, but I would just like to hear 
your assessment of how well integrated the civil process on 
botnets is and to your overall criminal pursuit of these 
malefactors.
    Mr. Bitkower. Thank you, Senator. As you point out, when we 
attack the botnet threat, occasionally we use our traditional 
criminal tools such as arrest warrants or search warrants to 
seize and take down infrastructure, but occasionally we do have 
to use civil authority to do a more technical remediation of 
the harm caused by a botnet.
    We have a little more practice with it now than we did 
earlier and the expertise that has been developed over time in 
the Department, particularly in the last 5 years is still 
retained and centralized within our Computer Crime and 
Intellectual Property Section in the Criminal Division.
    Senator Whitehouse. It has been institutionalized.
    Mr. Bitkower. It has, sir.
    Senator Whitehouse. Very well. Great. I appreciate you 
being here and I thank you for your testimony and for your work 
and I thank you particularly for your support of the way in 
which we have narrowed the Computer Fraud and Abuse Statute.
    It is not often that prosecutors like to see statutes 
narrowed, but I think it is pretty clear that this will be a 
good step in terms of going after the real criminals without 
risking concerns that innocent actors might get swept up or 
trivial, to use your phrase, acts might get swept up in it. 
Thank you for that.
    Mr. Bitkower. Thank you. We share that goal.
    Senator Whitehouse. Mr. Chairman.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you so much, Mr. Bitkower, for being here and for your work.
    In your opinion, what are the two or three gravest threats 
to our national security when it comes to computer fraud?
    Mr. Bitkower. Senator, that is a difficult question because 
many of the gravest threats are ones that thankfully are still 
in our heads. Certainly, we look to protect our national 
security information from breach and being obtained by foreign 
actors.
    Obviously we look to protect our critical infrastructure 
that is essential to the way our country operates. It goes 
without saying, I think that the valuable trade secrets, 
intellectual property of American businesses is vital to our 
national security and to our future success.
    Senator Klobuchar. Good answers. This morning we actually 
had an interesting hearing on encryption, and I do not think 
anyone has asked you about that yet and your view on that.
    I mean, I thought that the Deputy Attorney General and that 
the Director of the FBI made a pretty good case for why they 
are concerned about this, that you would no longer have access 
when tracking down criminal cases.
    Could you talk about your perspective on that from a sort 
of a computer fraud, that type of perspective?
    Mr. Bitkower. Thank you, Senator, and certainly the Deputy 
Attorney General and the Director of the FBI speak for the 
Department on these issues, so, I certainly second whatever it 
is they said this morning, which I did not have the opportunity 
to hear.
    I would note from a cyber perspective we definitely do see 
encryption being used as a tool to further crime. In 
particular, in some of our botnet cases, we have seen criminal 
actors using encryption as a means of protecting their criminal 
network to ensure that it can continue to victimize Americans.
    Senator Klobuchar. Very good. I think a lot of the focus we 
had there was how law enforcement will be able to continue 
their work where they are trying to track people down if they 
are encrypted, and I would think that you would have that same 
concern. That is what you are talking about?
    Mr. Bitkower. Yes, Senator, and it goes beyond mere 
encryption of data. The access to electronic evidence in a 
variety of contexts is essential to investigating and 
prosecuting these cases.
    Senator Klobuchar. Very good. As you discussed in your 
testimony, the President has announced new legislative 
proposals to update the Computer Fraud and Abuse Act, including 
making it clear that an insider who uses data inappropriately 
violates the CFAA and that those who sell financial data 
overseas are covered by the Act.
    You described these proposals are targeted and previous 
reforms to the legislation is modest. Given the growth and 
sophistication and frequency of cyber crime, how much will 
these reforms help? In a perfect world, what would you like to 
see us pass? Two different questions.
    Mr. Bitkower. Yes, Senator, but two questions I am very 
happy to answer. As you have seen, the administration's 
proposals, I do think they are targeted. I do not think we are 
under the illusion they are going to solve the cyber crime 
problem that we face today, but they will solve the problems 
that we have seen in sets of investigations that we are 
currently facing.
    Every one of these proposals, I believe, came out of actual 
case experience that our prosecutors have seen in cases where 
we either could not achieve the appropriate result or almost 
could not achieve the appropriate result because of these 
particular fact patterns.
    We are trying to advance the ball, but we recognize that 
there are other things that we have to do as a Nation to make 
ourselves more secure.
    Senator Klobuchar. Again, if you could wave a wand, what 
tools would you really like to see that you think would be 
helpful? Are there any other additional tools? I would think 
you would say resources, other things.
    Mr. Bitkower. Certainly, other than the proposals we have 
set forth in the President's legislative proposals, certainly 
resources are a major concern for us. Just to give a sense of 
scale, the Gameover Zeus botnet that the Department was able to 
take down last year was responsible for over $100 million in 
losses to our Nation's businesses, particularly small- and mid-
size businesses, and that number alone is over 10 times the 
budget of our Computer Crime and Intellectual Property Section 
for a year.
    Senator Klobuchar. Yes. We had a vote recently, there is a 
bill that has come through, a bipartisan bill actually through 
the Intelligence Committee. You focused when you mentioned your 
three biggest national security threats, one of them was 
business information and intellectual property.
    That bill, which I hope we vote on again, would make it 
easier for businesses to share information with the Government 
and report breaches and things like that. Having come from the 
State which had a company, I do not ever want to bring them 
down into the ground because they were victims of this, that 
had one of these major hacking incidences. Do you think this 
would be helpful in terms of sharing information of these 
breaches?
    Mr. Bitkower. Yes, Senator. The administration believes 
that legislation absolutely is necessary to promote better 
cybersecurity information sharing between the Government and 
the private sector and also to encourage information sharing 
among the private sector.
    Senator Klobuchar. I have had interesting debates on that 
with some of my colleagues. Most people are for that bill, as 
you know, both Democrats and Republicans, despite the vote 
which I guess was for other reasons.
    There are some people who are against it and they think 
that that will open us up somehow to more data breaches if 
somehow the sharing is done. I have tried to explain that 
explicitly in the bill as the provision that the personal data 
is not shared, just generally, and how do you respond to that 
argument?
    Because my perspective on this is if we just keep going the 
way we are and do not come up with more sophisticated ways to 
go after the crooks, they are just going to become more 
sophisticated about stealing our data and pretty soon we are 
going to be protecting no one's privacy because they are going 
to be able to hack into it.
    Mr. Bitkower. Senator, certainly we agree with you in a 
principle. We are still reviewing the particular text of the 
Senate Intelligence Committee's bill that I believe you are 
referring to and we are aware that some have expressed concerns 
about privacy protections in the bill, but we look forward to 
working with this Committee and other committees to improve the 
bill and make sure it can pass.
    Senator Klobuchar. Thank you very much. I appreciate it.
    Chairman Graham. Any other questions? One final question. 
In terms of the terrorist world, how much are they being 
enriched by these cyber crimes? Is there a connection between 
terrorist organizations and the thefts we are talking about?
    Mr. Bitkower. Senator, terrorist access to our networks 
would obviously be a nightmare scenario, and I think that is 
information that we could probably get to you in another 
setting.
    Chairman Graham. Okay. Thank you.
    Mr. Bitkower. Thank you.
    Senator Whitehouse. Mr. Chairman, as Mr. Bitkower leaves, I 
just want to note that he has a really exemplary academic 
record, record of judicial clerkships. He has been awarded the 
Attorney General's Award for Exceptional Service, which is an 
extraordinarily high honor within the Department of Justice, as 
well as the Henry Stimson Medal, which is given by the New York 
City Bar to the folks, U.S. attorneys in the New York City 
area, and that represents the kind of people that Department of 
Justice can draw into service to your point that if we are not 
kicking the Department of Justice in the face with 
sequestration, we can continue to attract people like Mr. 
Bitkower and have them feel rewarded at least in some ways even 
if they are never going to be rewarded in the ways that big 
corporate law firms can reward them. I heartily endorse your 
earlier comments about sequestration.
    Chairman Graham. Thank you very much, Mr. Bitkower.
    Mr. Bitkower. Thank you.
    Chairman Graham. Next panel, please.
    [Pause.]
    Chairman Graham. Thank you all for coming. Please stand.
    [Witnesses are sworn in.]
    Chairman Graham. Our second panel is Mr. Doug Johnson, 
senior vice president and chief advisor, payments and 
cybersecurity policy, American Bankers Association; Ms. Jen 
Ellis, senior director of community and public affairs, Rapid7; 
and Mr. Bill Wright, director, government affairs global 
cybersecurity partnerships, Symantec.
    All of you are experts in your area. Thank you very much 
for taking time to come to the Committee, and we will start 
with Mr. Johnson and go to my right.

               STATEMENT OF DOUG JOHNSON, SENIOR
               VICE PRESIDENT AND CHIEF ADVISOR,
               PAYMENTS AND CYBERSECURITY POLICY,
                  AMERICAN BANKERS ASSOCIATION
                         WASHINGTON, DC

    Mr. Johnson. Thank you, sir. Chairman Graham, Ranking 
Member Whitehouse and Members of the Subcommittee, my name is 
Doug Johnson. I am senior vice president of payments in 
cybersecurity policy for the American Bankers Association.
    I also have the privilege of serving as the vice chairman 
of the Financial Services Sector Coordinating Council, and I am 
also on the board of the Financial Services Information Sharing 
and Analysis Center as well, and I certainly do appreciate the 
opportunity today to speak to you and discuss the importance of 
modernizing our legal framework in the current cyber crime 
environment.
    As the 114th Congress engages in public debate on the 
important issue of cybersecurity and cyber crime, we share your 
concerns about the need to modernize our laws, to meet the 
cybersecurity challenges our Nation faces. Cyber threats to the 
U.S. national and economic security are increasing in 
frequency, scale, sophistication and severity of impact.
    Attacks that once were singular in focus, be it a denial of 
service attack on a financial institution, an attack on a 
merchant point of sale, or an attempt to destroy or wipe data 
from an energy company, it may now contain a variety of such 
attack vectors; many such multifaceted attacks create 
particular challenges for the victimized company or companies, 
necessitating the simultaneous maintenance of availability, 
integrity and confidentiality of data where formally a cyber 
attack might have impacted only one of these vital data 
security components.
    The significant and purportedly nation-state-based denial 
of service attacks that were experienced by our financial 
sector, I think, demonstrated our capacity to, through the FS-
ISAC, act collectively to respond to major attacks and minimize 
their capacity to essentially cascade through our financial 
sector.
    Our sector has also initiated civil legal action in 
conjunction with the FS-ISAC and Microsoft. I think that we 
actually, 5 years ago, were the first to really attempt botnet 
takedowns and did it essentially as a private sector, and we 
very much welcome the fact that now it is a partnership between 
the private and the public sector, and I think that the fact 
that we have a recent very successful case of an international 
botnet takedown when we are talking about the Beebone botnet, I 
think that is a very good sign of really what is to come, 
because essentially that was a court authorized seizure of over 
1,000 domains and those infected PC's no longer report to a 
criminal. They report to Europole's European Cyber Crime 
Center.
    For at least a moment in time, they are safe and they are 
being cleansed as individual PC's, and I think while we always 
have to continually refresh that process, I think this is an 
impressive level of international law enforcement cooperation 
and should serve as our model going forward.
    We also support the administration's Executive order on 
sanctions. We do believe that attackers are becoming 
increasingly adept at defeating cybersecurity practices and 
mitigating measures point to the need for industry and 
Government to develop and deploy enhanced measures with ongoing 
speed.
    While threat detection information sharing and incident 
response capabilities within our sector leave us well 
positioned to withstand such attacks, we also must increase the 
potential for our attackers to feel real consequences 
associated with these attacks.
    The nation-states that generally attack us deny attribution 
or even if they take credit for the attacks, they currently do 
not fear the consequences. While the Department of Justice and 
the FBI have had increasing success in indicting and in some 
cases extraditing members of overseas criminal networks and 
partnering with the private sector to disrupt botnets and other 
malicious activity, generally these organizations perpetrating 
these acts are not fearful of attribution, extradition or 
prosecution to the degree that impacts their risk/reward 
calculation and that currently must stop, and I think Congress 
can certainly assist in that by passing legislation to fill 
important gaps that do exist as we have just heard within 
current law or executive action that cannot be filled that way 
under existing law.
    As such, we endorse the Committee's efforts through the 
proposed International Crime Prevention Act of 2015, and we 
thank you for holding this important hearing. We look forward 
to working with Congress and this Committee and the 
administration as we strive to improve the legal and the 
operational tools necessary to address this threat. Thank you 
very much.
    [The prepared statement of Doug Johnson appears as a 
submission for the record.]

                 STATEMENT OF JEN ELLIS, SENIOR
        DIRECTOR OF COMMUNITY AND PUBLIC AFFAIRS, RAPID7
                   SAN FRANCISCO, CALIFORNIA

    Ms. Ellis. Mr. Chairman, Senators, thank you for the 
opportunity to contribute to this hearing. I am the senior 
director of community and public affairs at Rapid7, a security 
data and analytics company trusted by more than 3,900 
organizations.
    We work extensively with security researchers around the 
world. According to the open source vulnerability database, 
researchers discovered and disclosed more than 13,500 
technology vulnerabilities in 2014, including Heartbleed.
    We also saw research reveal a bug in 5,300 gas tank gauges 
across the United States, exposing them to remote attack. These 
findings come from testing computer systems to discover 
technical flaws and configuration issues that make them 
vulnerable to attack.
    Once vulnerabilities are found, technology providers and 
users are alerted so they can mitigate the threat. Some 
researchers work for the companies that build and deploy the 
systems, but many more operate independently.
    As independent testers, validators, and problem solvers, 
they are the antibodies of the digital immune system. Yet while 
this research is essential to our safety, it is at risk from 
both current and future legislation.
    The Computer Fraud and Abuse Act and similar State laws do 
not differentiate between well-intentioned research and genuine 
bad actors. Though they are primarily used to address cyber 
crime, these laws also deter security research.
    In the 30 years since the CFAA was first enacted, 
technology has changed a great deal and the vagueness of the 
language has become an increasing problem. Today, we see the 
statute being applied inconsistently by the courts and 
unpredictably by prosecutors.
    The lack of clear definitions and boundaries creates 
uncertainty over whether well-meaning research efforts will 
violate the law. This unfortunate effect is exacerbated because 
the law contains both criminal and civil penalties. Technology 
providers fear for the reputational fallout from a 
vulnerability disclosure and uses the threat of a lawsuit as a 
stick to scare researchers away.
    This is a worryingly common occurrence and many technology 
providers focus on the short term impact to their business and 
view independent researchers as troublemakers.
    For example, when a researcher found that a flaw in this 
interactive toy could let an attacker talk to a child without 
their parent's knowledge and provide the child's name, age and 
location, the toy maker threatened legal action. This is not a 
standalone example, I have many others.
    In one, a State prosecutor investigated a researcher 
despite the FBI having determined that his work was bonafide 
and valuable. Yet for all the discussion around cybersecurity 
legislation, this is not a problem being discussed.
    Most discussions around updating CFAA focus on extending 
its application and making penalties more stringent. Penalties 
are certainly an important part of deterring crime, but they 
are less likely to be impactful internationally when you 
consider how hard it is to prosecute foreign actors.
    Studies suggest that people determine whether to commit a 
crime based primarily on the likelihood of being caught, not 
the severity of the punishment. This is probably even more the 
case with large organized crime groups such as the Russian 
Business network or state-sponsored hacking groups such as 
China's Deep Panda.
    This brings me to the Committee's proposed legislation, the 
International Cyber Crime Prevention Act of 2015. I would like 
to thank the Committee for giving us the chance to comment on 
the draft proposal. We applaud your emphasis on the prevention 
of cyber crime and think the bill does a number of things well.
    In particular, we support the idea that law enforcement 
should be able to shut down botnets within the checks and 
balances of a legal framework. We also commend the bill's focus 
on protecting critical infrastructure and making the 
requirements stringent.
    However, we are concerned that the bill does not address 
the issues affecting security researchers. In fact, it could 
make the situation worse for them. We understand that creating 
a carve-out is challenging, as often researchers' efforts 
mirror those of cyber criminals, but we strongly urge the 
Committee to consider this problem, perhaps as a way to create 
an exemption for research based on intent or hurtful outcomes.
    Clarifying and updating some of the language of the bill 
would also help by giving researchers more confidence over what 
is or is not permissible. For example, the statute revolves 
around the concept of authorization, but this term is not well-
defined.
    Likewise, notions of protected computers and obtaining 
information are drastically out-of-date and do not consider the 
role that technology providers and owners may play in exposing 
data.
    Without clarifying the CFAA and creating greater 
consistency in the way it is prosecuted and litigated, we 
diminish the value of security research and make it harder for 
U.S. organizations and consumers to protect themselves.
    The reality is that technical systems are complex by nature 
and they will never be perfect. We will always have bugs that 
provide opportunities for attackers. The only way to mitigate 
this is to support a culture where these issues can be 
proactively identified, disclosed and addressed.
    It is not the imperfection of systems that should define 
us. It is how we respond to the knowledge that they will not be 
perfect.
    Once again, I would like to thank you for the opportunity 
of testifying today. I welcome your questions and comments and 
wish the Chairman a happy birthday for tomorrow.
    [The prepared statement of Jen Ellis appears as a 
submission for the record.]

              STATEMENT OF BILL WRIGHT, DIRECTOR,
                   GOVERNMENT AFFAIRS, GLOBAL
              CYBERSECURITY PARTNERSHIPS, SYMANTEC
                         WASHINGTON, DC

    Mr. Wright. Thank you. Chairman Graham, Senator Whitehouse 
and Members of the Subcommittee, thank you for the opportunity 
to testify today. I am especially pleased that you are again 
focusing attention on cyber crime and how industry and 
Government partnering can help deter it.
    As the largest software company, Symantec protects much of 
the world's data infrastructure. Our mission is to help 
consumers, businesses and governments secure and manage their 
information and identities.
    The cyber threat we face today is growing in both numbers 
and sophistication. Over the last 3 years, we have seen more 
than 1 billion identities exposed through breaches. Sensitive 
trade secrets and intellectual property are being pilfered at 
an unprecedented rate.
    The use of malware is growing and becoming more 
sophisticated with more than 1 million new malware variance 
released into the wild each day in 2014. Attackers are also 
continuing to evolve their criminal tools to avoid detection. 
These attackers include highly organized criminal enterprises, 
disgruntled insiders, so-called hactivists with a political 
agenda, and of course, nation-states.
    The damage to the economies and the security of governments 
and businesses around the globe is unrelenting. Even the most 
unskilled attackers can buy cyber crime tools or hire skilled 
hackers to do their dirty work. In fact, today we released a 
report on a previously unknown cyber crime group known as 
Morpho.
    What sets this group apart is that they perform corporate 
espionage with a laser focus on operational security. Over the 
past 3 years, they have stolen confidential information and 
intellectual property from companies such as Twitter, Facebook, 
Apple, and Microsoft, who have all publicly acknowledged being 
victims.
    Numerous pharmaceutical companies, technology firms, law 
practices, and oil and precious metal mining organizations also 
were victims. Morpho is a timely reminder that as well as 
defending against nation-state sponsored attacks, we must also 
be vigilant against corporate espionage, where attacks are 
performed at the behest of competitors or by criminals looking 
to monetize stolen information.
    Botnets remain at the heart of the cyber criminal 
ecosystem. Their uses are only constrained by the imagination 
of the botmaster. From DDoS attacks to Bitcoin mining to 
harvesting personal information from infected computers, 
similar to hackers for hire, botmasters can rent out their 
botnets as well as use them for stealing passwords, credit card 
data, intellectual property which is then sold on the black 
market to other criminals.
    Taking down cyber crime networks can be complex. It 
requires a high level of expertise and coordination. Despite 
these obstacles, law enforcement and private sector working 
together have made progress in the past year. We have seen a 
string of successful arrests and prosecutions of some of the 
most notorious cyber criminals in the world.
    These include the sentencing of the creator of Blackshades 
trojan to 5 years in prison and the arrest and extradition an 
orchestrator of one of the biggest bank heists in history of 
more than $55 million.
    We have also seen a number of successful takedowns of 
financial fraud botnets. Last year, law enforcement mounted 
major operations against Gameover Zeus botnet and the 
ransomware network Cryptolocker, as well as against the Shylock 
botnet, and earlier this year the servers and infrastructure of 
the Ramnit botnet were seized.
    These law enforcement operations and others have helped 
lead to an 18-percent decline in botnet infections in the year 
2014. Unfortunately, cyber criminals are quick to adapt and 
these successes are often followed by the emergence of new 
threats such as the Dyre group. The Dyre financial fraud botnet 
has emerged as one of the most dangerous financial trojans in 
the world, capable of defrauding customers from financial 
institutions in multiple countries.
    Despite an impressive year of law enforcement actions, 
there is always a new threat ready to fill the void. In 
combating botnets and cyber crime, cooperation is key. In the 
private sector, we need to know that we can work with 
Government and industry partners to disrupt botnets without 
undue legal barriers.
    Modernizing cyber crime laws is a crucial element. We need 
to amend such--amend laws such as the Computer Fraud and Abuse 
Act to enhance judicial authority to disrupt botnets and allow 
prosecutors to go after not just those who profit directly from 
the botnets, but also those who provide access and traffic in 
botnets.
    Similarly, we need to ensure that we can prosecute overseas 
criminals that possess or traffic in stolen credentials and 
financial information, regardless of whether that individual 
was the one who actually had stolen the information in the 
first place.
    As this Subcommittee knows well, we face significant 
challenges dismantling cyber crime networks. However, the work 
that industry and Government are doing together is paramount to 
future success. At Symantec, we are committed to improving 
online security across the globe, and we will continue to work 
collaboratively with our customers, industry and governments on 
ways to do so.
    Thank you again for the opportunity to testify and I will 
be happy to answer any questions. Thank you.
    [The prepared statement of Bill Wright appears as a 
submission for the record.]
    Chairman Graham. Thank you. I will yield my time to Senator 
Cornyn and ask questions later. Thank you.
    Senator Cornyn. Thank you, Mr. Chairman. It seems like it 
is the wild, wild west all over again. This time it looks like 
the bad guys are winning and operating with a lot of impunity.
    Tell me if you think I am wrong, but my impression is that 
the private sector is much farther along in protecting its 
networks than the Government is. We all know that we are 
dealing with a rising level of state actors and sophisticated 
criminal organizations that have very little to lose because 
the chances of actually getting caught and being hauled into 
court and serving time are very, very small.
    I know both Senator Graham and Senator Whitehouse have been 
working on this issue a long time, and I am hopeful that we 
will take up a cybersecurity bill this month before we leave. I 
would just like to hear from each of you given your experiences 
in the private sector with cyber research and also with 
Symantec.
    What can the United States do to better equip itself to 
deter and respond to these threats? In other words, what sort 
of legislation do you think we need to make sure is included? 
What are the elements of that legislation?
    It strikes me--things like information sharing, liability 
protection are a couple of them, but I would just like to hear 
your response starting with you, Mr. Johnson.
    Mr. Johnson. Thank you, Senator, and I appreciate the 
question, and I would like to address the information sharing 
component of that question because I mentioned cascading 
effects within my testimony.
    I think one of the things that we have experienced within 
the FS-ISAC environment is an ability to share information at a 
level of velocity that keeps events from cascading more than 
they actually potentially could cascade through other financial 
institutions.
    I think as we debate the nature of an information sharing 
bill that we need to think very carefully about that particular 
issue to the extent that we do not in the process of, for 
instance by example, putting a civilian agency in the middle of 
the information sharing process impede the velocity, the manner 
in which the information is shared so that we can actually stop 
the event from reaching other institutions and other 
institutions, because the faster that information flows from 
one institution to the other, the quicker we will be able to 
essentially stop the threat and also have the recognition that 
the vast, if not all, the information that is being shared in 
that environment is not personally identifiable and so 
therefore should be treated as such as we think about what sort 
of impediments we put associated with that information sharing.
    Senator Cornyn. Ms. Ellis, I understand your enterprise has 
a significant Austin presence. Thank you for that.
    Ms. Ellis. Thank you.
    Senator Cornyn. I would be delighted to hear your response.
    Ms. Ellis. Thanks. I am obviously a little biased toward 
security research. I think that we have to look at the way that 
we are creating opportunities for these attackers, and we have 
to think about how we can reduce the opportunities and also how 
we can raise the barriers to entry for them. Much of what I 
talk about around security research is really geared toward 
doing that.
    We are trying to identify the opportunities that are 
created for attackers in our technical systems that we rely on, 
and we are trying to mitigate those opportunities so that we 
make it more technically complex for them to be able to 
perpetrate attacks.
    Legislatively, I think we need to look at how the 
legislation we already have impacts research and likewise the 
legislation that we are thinking about introducing. I think 
there are a couple of other things as well, though. There was a 
bill that was introduced in the lame duck, I believe, on the 
House side that basically aimed to make sure that Government 
entities when they were using technology would be mindful of 
the third-party components being used and would use the most 
up-to-date versions, and ensure that they were patching and 
that they were transparent about the systems being used so that 
again, where you have systems that are so complex and so 
interconnected and so reliant on different pieces of 
technology, some of those pieces of technology are already out-
of-date and you need to make sure that you're not using the 
stuff that we already know is out-of-date that we know has 
issues in it. I would recommend you look at that bill.
    Senator Cornyn. My experience has been that Government and 
technology do not mix very well. To your point, even if the 
technology exists, it may not be being used.
    Mr. Wright, your company is in the business of protecting 
computers and networks. What does the Federal Government need 
to do to protect not only the 18 million files of those who 
were hacked at the OPM recently, but the American people more 
generally?
    Mr. Wright. Yes, so I would like to add on to what Mr. 
Johnson said there. Information sharing is certainly a very 
important piece, a very important element to all of this. 
However, it is not a panacea.
    There is also a lot of information sharing going on right 
now between public sector and private sector and private sector 
and private sector. New organizations are popping up every day 
and this information is flowing.
    I would say to the extent that it--that information sharing 
legislation could help facilitate that exchange, then it would 
be very important. Parts that we would like to see certainly 
are privacy protections that are part of that information 
sharing, data minimization, and actually to have a civilian 
lead.
    We think that the civilian agencies have a background in 
these sort of privacy protections and it could be very helpful 
protecting that.
    I would also say a lot of the work that this Committee is 
doing and considering in modernizing our cyber crime tools 
could be very, very effective. As Senator Whitehouse pointed 
out, time to go on the offensive.
    If we can find a way to insert some risk into the risk/
reward scenario that a lot of these cyber criminals are going 
through, I think we can see effects not only on the current 
cyber criminal problem, but future cyber criminal problems. 
Thank you.
    Senator Cornyn. Thank you, Mr. Chairman.
    Senator Whitehouse. Mr. Johnson, you are here on behalf of 
the American Bankers Association. On behalf of America's banks, 
what can you tell us about the size of the cyber threat and the 
role of overseas and foreign actors in that threat?
    Mr. Johnson. The size is very difficult to quantify, but it 
is without question that every one as we heard in the first 
panel, every one of the major exploits that we see has a 
foreign component associated with it.
    It may be a nation-state, it may be a criminal enterprise.
    Senator Whitehouse. Every one has a foreign component?
    Mr. Johnson. Yes. Every one has a foreign component to it 
and that becomes very problematic whether it is a nation-state 
or whether it is a criminal enterprise. We are very grateful to 
see the sanctions definition of the kinds of lines in the sand 
essentially which create an activity that a nation-state has 
conducted which actually would potentially cause the United 
States to take action.
    I think that is one thing that we did not see in the denial 
of service attacks that has a level of frustration in our 
industry associated with it. We did not know where that line 
was. We did not know when a particular activity by a particular 
government would actually fall into the foreign policy equation 
and be considered as a part of that, and now I think we know 
that with a greater level of certainty. I think that is very 
important.
    Senator Whitehouse. You mentioned botnets. We would expand 
so that not just fraud but also abuse and misuse was a reason 
to shut down a botnet.
    If you are a bank, a botnet can be used to attack you not 
just for purposes of fraud and stealing money, but for purposes 
of a critical infrastructure attack against the bank and 
against the country with the intention of actually doing 
destruction rather than stealing and getting money.
    Mr. Johnson. That is----
    Senator Whitehouse. This clarification would be helpful to 
you and supported by the bankers?
    Mr. Johnson. Yes, Senator, it would because we very much 
look to the potential of the disruptive types of attacks which 
we have seen from nation-states becoming destructive types of 
attacks and that is something that we look at very closely and 
take very seriously.
    Senator Whitehouse. Ms. Ellis, you have looked at the 
proposed draft that we have. The narrowing of the Computer 
Fraud and Abuse Act is one that I understand you support and 
believe that it would not cause any reduction in security but 
in fact would allow security companies like yours to have more 
confidence going about their business.
    Ms. Ellis. Yes, I think that that is true, but I do also 
think that there is still work to be done on the proposal. 
Specifically the definitions are just still a huge concern 
and----
    Senator Whitehouse. A quick question on that.
    Ms. Ellis. Yes.
    Senator Whitehouse. You attack corporate systems with the 
permission of the corporation in order to test the security of 
the systems. Why is your contract with the company not enough 
of a defense?
    Ms. Ellis. Because that is not what we are talking about 
when we talk about research. That is a particular kind of 
research. There are corporations who employ people to do that, 
absolutely.
    Senator Whitehouse. You have a lot of clients who you do 
that with, correct?
    Ms. Ellis. Absolutely. There is also----
    Senator Whitehouse. A more freelance mode?
    Ms. Ellis. Yes. That research can actually be either 
intentional or accidental, right? It can be accidental 
discovery such as the 5-year-old boy who was trying to get into 
his dad's Xbox and found out that he could circumvent the 
controls on it.
    Once that issue gets disclosed, that becomes a 
vulnerability finding, and so we want to make sure that that 
kind of behavior is protected.
    Senator Whitehouse. Mr. Wright, you agree that the 
amendments that we have made to the Computer Fraud and Abuse 
Act create no harm to computer security and are supported by 
Symantec, one of our leading computer security companies?
    Mr. Wright. Yes. We definitely support the intent of the 
various pieces. We too would want to obviously make sure that 
innocent usage was not covered so that the scope could narrow. 
As it reads now, we do support.
    Senator Whitehouse. In the strengthening of our ability to 
pursue offshore criminals, you mentioned the MLATS and the 
letters rogatory and some of the somewhat antiquated tools.
    Just give us a quick comparison between the speed at which 
cyber crime takes place and the speed at which MLATS and 
letters of rogatory operate.
    Mr. Wright. Yes, absolutely. Cyber crime and technology are 
changing every day. The tactics of criminals are changing every 
day, they are becoming more and more sophisticated.
    Senator Whitehouse. It is a crime that can literally occur 
at the speed of light.
    Mr. Wright. Correct. We are dependent on at least on the 
law enforcement information sharing on laws that were written 
in the 1800s or 1700s. We need to have that MLAT process 
streamlined so that we can--our law enforcements can share 
information.
    Cyber crime is global by nature. This type of communication 
is absolutely essential and it is key in fact to fighting cyber 
crime.
    Senator Whitehouse. Finally, why do you support aggravated 
penalties for attacks on critical infrastructure?
    Mr. Wright. Critical infrastructure, obviously the most 
sensitive, the most dangerous. It puts lives at risk. It makes 
a lot of sense then to add penalties to that, to those 
attackers that are going after our critical infrastructure that 
they are putting lives at stake. Thank you.
    Senator Whitehouse. Mr. Chairman, over to you.
    Chairman Graham. Thank you all very, very much. If Congress 
continues to do nothing in this area, what does it mean for the 
bankers?
    Mr. Johnson. Senator, first of all, I would be remiss if I 
did not wish you a happy birthday.
    [Laughter.]
    Chairman Graham. Thank you. You would be and you corrected 
that problem. I want everybody in the world to wish me a happy 
birthday.
    [Laughter.]
    Mr. Johnson. Second, if I remember the question, I think 
that the status quo has three different components to it now. I 
think we have a three-legged stool that we are working on 
essentially here.
    We have got the necessity to develop a national data breach 
and data security standard, we have got the necessity to 
buttress and have clarity in our information sharing 
environment, so we do no harm to as Mr. Wright indicated, what 
already exists, but also improve the clarity associated with 
the liability protections and the ability to share information, 
particularly across sectors.
    Then we have the necessity to be able to do harm to 
criminals, and it is only if we do all three of those things 
will we be able to move the needle and the way that you are 
suggesting is more difficult to do over time.
    If we do nothing, we do not move that needle. If we do 
nothing, we potentially regress as opposed to progress because 
we have not really buttressed the tools that are necessary in 
the new environment and increasingly sophisticated environment 
to be able to address these threats.
    Chairman Graham. I do not know how many bank robberies 
there are every year, but compare bank robberies to cyber 
theft. What kind of ratio are you looking at?
    Mr. Johnson. I can use a very simple number for you. The 
average bank robbery is around $5,000--$5,000 to $6,000. The 
average ATM skim, which is a fairly modest cyber crime, is 10 
times that, and that is one of the less sophisticated crimes.
    You can get $50,000 from a skimming exploit and $5,000 from 
a bank robbery on average, and then if you take the more 
sophisticated crimes, you are exponentially growing the ability 
of a criminal to essentially monetize as we heard in the first 
panel some of the dollar amounts.
    Chairman Graham. I forgot to ask this question, but will 
send it in writing. I want to know the number of FBI agents 
that are involved in preventing bank robberies, which I am glad 
they are, and prosecutors dedicated to that versus the number 
of FBI agents and other Government officials designed to 
prevent cyber theft. I imagine I would be surprised.
    Mr. Wright, you said that cyber attacks can cause physical 
damage to critical infrastructure. Could you explain what you 
are talking about there?
    Mr. Wright. Sure. First off, the pressure is certainly 
mounting to wish you a happy birthday.
    Chairman Graham. Thank you.
    [Laughter.]
    Mr. Wright. Happy birthday to you.
    Chairman Graham. Welcome to the party. Thank you very much.
    [Laughter.]
    Mr. Wright. As you know, our critical infrastructure is 
dependent on computer systems and networks. In addition to 
that, part of the controls are industrial control systems. 
Those actually have--control moving parts.
    By attacking those, you are able to make sort of kinetic 
movement, kinetic changes to physical property. In that sense, 
there can be physical change. I am also talking about if they 
hit a power plant or something, the kind of danger that that 
could cause a society as well.
    Chairman Graham. Thank you. Ms. Ellis, one, we want to get 
your input about how to make the statutes that we are talking 
about clearer to make sure that we do not grab the wrong 
people.
    You said something, and maybe I missed this, but I thought 
I heard you say that there is some research projects that 
revealed that a bug that can be used to actually blow up a 
building. Did you say that?
    Ms. Ellis. I did not say it in my testimony, but I have 
been known to talk about it, yes.
    Chairman Graham. You have got my attention. It is one thing 
to shut down your computer. It is another thing to blow up the 
building.
    Ms. Ellis. Yes. Basically the way it works is that people 
use systems that were never designed to be connected to the 
internet and then they put something on top of that to connect 
it to the internet.
    In the particular example that we are talking about, there 
are some churches that have old boiler systems and somebody 
came up with the brilliant idea of connecting them to the 
internet so they could be turned on and off, and unfortunately 
they can also be turned all the way on, which is not something 
you want to have happen.
    Chairman Graham. I guess the point is that we need to up 
our game when it comes to punishment. The risk/reward 
calculation is way out of line with what it should be, so if we 
accomplish nothing else, I hope we can accomplish that.
    The three necessities you mentioned, Mr. Johnson, we are 
trying our best to address them in this Subcommittee in a 
bipartisan way.
    I want to end on this. Of all the people I have met in the 
Congress about this topic, Senator Whitehouse has been the most 
engaged, incredibly knowledgeable trying to find solutions to 
complicated problems, so I would like to be his partner to the 
extent that I can and see if we can come up with some 
legislation that would make our country safer and give the 
private sector the tools they need to move forward.
    Thank you all very much and the hearing is adjourned. We 
will leave it open for any comments for a week. I apologize. 
The hearing is adjourned and happy birthday to me.
    [Laughter.]
    [Whereupon, at 3:37 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

Submitted by Senator Graham:

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