Staff Reports
This Constitution Day, something old is suddenly new again. Lawmakers in Congress and the White House are dusting off Article I’s long-forgotten “letters of marque” power and trying to make it work in the cyber age. If you thought privateering was only for muskets and pistols, think again—welcome to the era of the digital privateer.
Why letters of marque matter again
The Constitution gives Congress the power to “grant Letters of Marque and Reprisal.” That dusty clause matters because Washington is finally admitting what the rest of us already know: cybercrime is a tax on Americans. The White House and Congress point to staggering losses from transnational cybercriminals as the reason to let vetted private firms counterattack. Call it patriotic entrepreneurship—if you like your freedoms defended and your stolen money chased down.
Congress is moving: H.R. 9697 and S. 5000
House bill H.R. 9697 and Senate companion S. 5000 would explicitly authorize “cyber letters of marque and reprisal.” Representative Tim Burchett and Senator Mike Lee are the public faces backing the idea. The bills let the President commission private actors to disrupt designated cyberthreats, allow certain offensive tools (yes, including malware), require bonds and logging, permit the government to take a slice of recovered assets, and even bar lawsuits for actions done under a letter. Senator Lee put it plainly: these would let “American digital privateers” raid cartels, cybercriminals, and hostile operators and then split spoils with the government. Sounds bold. It also raises real questions about oversight and legal cover—and critics should not get to act surprised when conservatives insist on clarity up front.
The White House NSPM: an executive pathway
Meanwhile, President Trump’s administration issued a national-security memorandum to create a program that lets vetted private companies do government‑authorized cyber operations under supervision. The memo sets up vetting, bond or escrow requirements (reports say bonds could be about $1 million), and interagency oversight involving DOJ and DHS. Think of it as an operational shortcut: the White House is trying to animate private capability now, while Congress debates the statutory framework. That’s practical, but it doesn’t erase separation‑of‑powers questions, nor the real technical risks—misattribution in cyberspace can hit the wrong actor and trigger a bigger mess.
Why conservatives should care — and demand guardrails
Republicans should like this idea in theory: it leans on the Constitution, limits the military footprint, and harnesses private-sector firepower to protect Americans. But liking it doesn’t mean blind faith. We need clear rules of engagement, ironclad oversight from Congress and DOJ, and strict limits to prevent mission creep or immunity that swallows accountability. If Washington wants to revive privateering for the digital age, do it the right way—vote the statute, fund it responsibly, and make sure courts can still sort out abuse. Otherwise we’ll get a half-baked program that pleases bureaucrats and infuriates taxpayers.
