While a cyber letter of marque is legal, both under domestic and international law, any cyber letter of marque regime must provide for a method of authorizing and subsequently supervising a cyber privateer.
258) If the applicant does not possess the requisite skills, then its request for a cyber letter of marque is denied.
260) The bond requirement is the most effective method for screening out "start-ups" and "fly-by-night" security companies from seeking a letter of marque.
The prime importance of competent exercise of the powers enumerated in the letter of marque is underscored when the vast amount of money and intellectual property lost on a frequent and recurring basis, coupled with the exacting nature of establishing positive identification, especially attribution, is contemplated.
While most private companies are loathe to share details of their cyber activity for fear of losing intellectual property, a competitive edge, or disclose their cyber defenses or weaknesses, (268) a company serious about executing a defensive or even offensive cyber letter of marque should be willing to accept the more stringent scrutiny, such as reviewing cyber logbooks.
A cyber letter of marque would designate the bearers to be licensed combatants for the sovereign, authorizing them to "bear arms" in the cyber sense of the word, and either defend against specific attacks and launch counter attacks (hack-backs) or engage in offensive cyber operations directed at sovereign selected targets or networks.
271) These concerns can be easily alleviated by carefully drafted rules of engagement and scope of authorization in the letter of marque commission itself.
The legal framework for a workable letter of marque regime already exists under current federal law.
282) Penalties can include forfeiture of the bond and any pay due as a result of a successful capture or mission, seizure of assets, (283) debarment from all future government contracts, (284) exclusion from future letter of marque commissions, criminal prosecution, and potential tort liability.
At least two presidents proposed criminal prosecution for misuse of a letter of marque.
According to some scholars, one of the major drawbacks of the traditional letter of marque system was the lack of organization or unified command, control and communication.
As delineated above, the letter of marque has a rich tradition, not only in international and maritime law, but also in American history.