On August 12, 2026, President Trump issued a National Security Presidential Memorandum (NSPM) on “Expanding Capabilities to Combat Transnational Cyber-Enabled Crime,” establishing a federal program (the Program) under which vetted U.S. companies (Participating Companies) may, on behalf of and under the supervision of the federal government, conduct intelligence-gathering and offensive cyber operations against foreign cyber-enabled transnational criminal organizations (CE-TCOs).
The Program marks a major expansion of private-sector involvement in U.S. government cyber operations, and it specifically aims to combat cyber-enabled crimes such as ransomware, phishing, financial fraud, sextortion, and impersonation scams. The NSPM implements a proposal from the March 2026 National Cybersecurity Strategy to “unleash the private sector” to “identify and disrupt adversary networks and scale [the United States’] national capabilities.”
The Program is not an unfettered “hack-back” authorization—operations are subject to close government oversight and defined substantive constraints. But it is nonetheless an unprecedented step, formally enlisting private companies in offensive cyber operations and exposing them to risks ordinarily borne by law enforcement and intelligence agencies alone. Because the Program is based solely on Executive action, no new legal authorities or protections are provided to Participating Companies, and many of the most consequential guardrails remain to be defined in implementing procedures. Companies evaluating participation should carefully weigh the legal, operational, and commercial risks discussed below.
The framework
The NSPM directs the National Coordination Center (NCC) to administer two categories of authorized activity against foreign CE-TCOs as part of lawful federal law enforcement operations:
- Cyber Surveillance Operations, which involve obtaining covert unauthorized access to information systems, networks or related infrastructure for the primary purpose of intelligence collection
- Cyber Effects Operations, which involve manipulating, disrupting, denying, degrading, or destroying information systems, networks, infrastructure, or information resident therein
Operations are limited to CE-TCOs that are not institutional parts of, or wholly directed by, a foreign government, with independence from state direction presumed absent “clear intelligence” to the contrary.
The Program will be overseen by co-executive directors from the DOJ and DHS. Participating Companies will contract with DOJ or DHS, and each discrete operations package will require prior written approval and direction from the Program executive directors before execution. A classified annex governs the operational workflow and adjudicatory framework for target selection.
The government may not approve operations resulting in Critical Outcomes, which are defined as actions likely to result in death or serious injury, or that rise to the level of use of force or armed attack under international law. Participating Companies may receive cyber threat intelligence through commercial arrangements but must disclose those relationships to the NCC.
The Program expands the NCC’s mandate beyond its traditional law enforcement coordination functions. Until now, the NCC served primarily as the operational hub for the Homeland Security Task Forces (HSTFs) established under Executive Order 14159 of January 20, 2025 (Protecting the American People Against Invasion), which directed DOJ and DHS to jointly create task forces in all 50 states to combat criminal cartels and transnational criminal organizations.
Government direction and control
A central feature of the Program is that all operations “will be exclusively conducted on behalf of and under the supervision of the Federal Government pursuant to the Federal Government’s lawful authorities.” The NCC is directed to ensure that “Participating Companies are acting under the control and oversight of the United States Government.”
In addition, Participating Companies are defined as private companies “authorized to conduct cyber operations under the direction of the United States Government,” and no operation may proceed without “written approval and direction” from the Program executive directors.
Positioning the Participating Companies as government agents is necessary to ensure the legality of the companies’ actions (under U.S. law, at least), which otherwise could constitute unlawful surveillance and unauthorized access to computer systems in violation of the Computer Fraud and Abuse Act (CFAA) and state computer crime laws. This agency construct, however, comes with both legal obligations and risks for the companies, as discussed further below.
Which companies may qualify
Companies seeking to participate in the Program will need to demonstrate technical proficiency, experience in cyber operations, facility security, personnel vetting processes, and overall competence and reliability. Implementing procedures will further specify these requirements.
The framework contemplates participation by both large cybersecurity firms and smaller specialized operators. DOJ or DHS may require a participating company to maintain a bond or escrow of at least one million dollars, subject to forfeiture for contractual noncompliance.
Guardrails
The NSPM imposes a series of substantive constraints on authorized operations. The implementing procedures must provide for DOJ review and ensure that any operation directed at a U.S. person or otherwise implicating U.S. government obligations under the Constitution, federal law, or international law receives the necessary judicial or other authorization. The Program will require Participating Companies to immediately cease operations, conduct minimization procedures, and notify the government if activity exceeds the scope of approval, including any unintentional targeting of a U.S. person or an information system residing in the United States.
Participants must also immediately notify the government if they discover an imminent attack on U.S. critical infrastructure or reasonably believe an operation may result in death, serious injury, or a use of force or armed attack under international law.
Considerations for stakeholders
Companies considering participation in the Program, or entering into commercial relationships with Participating Companies related to Program activity, should consider the following:
Evaluate agency-relationship implications
Because Participating Companies will be operating under the direction and control of the government, their conduct will likely constitute state action for legal purposes, bringing several obligations and risks that do not ordinarily apply to independent private-sector activity. For example, operations touching U.S. persons or U.S.-located systems or infrastructure—which may be encountered even when primary targets are situated abroad—could trigger warrant or other judicial authorization requirements under the Fourth Amendment, the Electronic Communications Privacy Act (ECPA), or the Foreign Intelligence Surveillance Act (FISA). Government-agent status may also affect protections otherwise available to private-sector entities, such as CISA 2015’s authorization for private entities to monitor certain information systems for cybersecurity purposes and deploy defensive measures.
Participating Companies and their employees may also face constitutional or other civil claims for alleged violations, and their ability to invoke qualified immunity is unsettled (see Richardson v. McKnight), creating potential liability exposure that government agencies and employees performing the same functions would not face. Finally, statutory frameworks that apply specifically to government activity—including ECPA, FISA, and the Privacy Act—may impose notice, minimization, and data handling obligations that would not ordinarily apply to participating companies’ commercial operations.
Assess risks of AI-enabled operations
Advanced AI models are increasingly the relevant unit of action in cyber operations, and recent incidents involving AI agents have demonstrated the potential for unintended consequences in the absence of adequate oversight and controls. Any use of autonomous systems in Program operations could create risks where an AI agent exceeds the targets, methods, duration, or effects specified in an approved operations package, potentially exposing Participating Companies to third-party claims.
The degree and nature of control may affect how courts attribute an AI agent’s conduct under existing laws. In a recent decision in Amazon.com Services, LLC v. Perplexity AI, Inc., the Ninth Circuit concluded, at the preliminary injunction stage, that “access” under the CFAA would be attributed to an AI agent’s user rather than its developer; the court expressly left open whether greater provider control over an agent could produce a different result.
Review contracting and civil liability issues
Contracts with DOJ or DHS and operation-specific approvals are expected to define the scope of authorized activity and allocate certain risks between the government and Participating Companies. Prospective participants should consider any implications for indemnification, insurance, defense and cooperation obligations, and responsibility for third-party claims arising from unintended effects. Clear and detailed documentation of government direction and limited Participating Company discretion may support a government-contractor defense, but in practice those features may conflict with the need for cyber operators to adapt quickly to evolving threats and agile adversaries. Any ambiguity or unexpected activity that arises in the course of an operation could create additional risk or uncertainty about the availability of legal defenses.
Plan for misattribution risks
An approved operation could mistakenly affect systems belonging to an innocent owner or provider, causing downtime, data loss, business interruption, or physical effects. Although the NSPM requires participants to stop, minimize, and report activity that exceeds an approved package, it does not clearly allocate liability for mistaken targeting or related collateral damage. The NSPM separately adds to this misattribution risk by presuming that a foreign group is independent of government direction absent “clear intelligence” to the contrary. Where evidence of state control is incomplete, that presumption could result in an operation against a group later determined to be part of, or directed by, a foreign government.
Consider the scope of CFAA protection
The NSPM expressly requires the NCC to conduct Program activities consistently with the CFAA. The government’s direction and control of these activities are important because § 1030(f) provides that the CFAA does not prohibit lawfully authorized investigative, protective, or intelligence activity “of” specified law-enforcement and intelligence agencies.
The statute does not, however, expressly address the role of private contractors, and judicial precedent on the scope of § 1030(f)’s applicability to private companies acting on the government’s behalf is limited. Protection may turn on the source and scope of the government’s underlying legal authority for the operation, the content of the written direction, and the participant’s adherence to the approved operations package. Conduct beyond these thresholds could remain subject to criminal or civil CFAA claims.
Assess state-law exposure
Many state statutes criminalize unauthorized computer access and interference, but their application will be limited where a participating company’s conduct is validly authorized and directed by the federal government. State-law exposure may nonetheless arise where a participant exceeds an approved operations package, deviates from the restrictions of a DOJ or DHS contract, or acts pursuant to authority that was not validly conferred—or where there is a dispute about whether one of those thresholds has been crossed.
Account for foreign-law risk
Operations targeting systems located in foreign jurisdictions may implicate local computer crime, surveillance, privacy, data protection, or critical-infrastructure laws and expose participants to potential liability or sanction in the local jurisdiction. U.S. approval to conduct intrusive operations typically will not insulate participants from liability under foreign law—and private companies face significantly greater exposure than the government does when conducting comparable operations. The government benefits from sovereign immunity, diplomatic protections for its personnel, and the deterrent effect of U.S. diplomatic, intelligence, and military power. Private companies enjoy none of these protections and are likely to have commercial footprints abroad—offices, employees, bank accounts, regulatory licenses—that are directly reachable by foreign authorities.
The U.S. Department of the Treasury’s Office of Foreign Assets Control, for its part, has sanctioned Chinese, Iranian, and Russian companies and individuals for conducting or supporting state-directed cyber activity. Foreign governments could respond in kind by sanctioning U.S. participants, their employees, or affiliates. Potential responses might include asset freezes, transaction bans, criminal charges, travel restrictions, or license revocations. Participants should assess these risks on a jurisdiction-by-jurisdiction basis.
Monitor implementing procedures
The Program’s operational framework remains incomplete until the executive directors issue implementing procedures within the 60-day window. Those procedures will address eligibility standards, interagency deconfliction protocols, target adjudication, reporting requirements, and safeguards for U.S. persons. Companies should monitor these developments closely, as the procedures will substantially determine the practical burdens and risks of participation.
