Letters of marque and reprisal are writs issued by governments for private organizations to attack enemies, and to respond to attacks, without direct government oversight. They’re thought of as creating privateers — government-sanctioned pirates. But strictly, a letter of marque permits a merchant ship to arm and defend itself against attacks from warships, privateers, and pirates. And in the process, take prizes.
Congress should use its power “to define piracy” to define cyber-piracy and issue letters of marque to hacked companies, licensing them to defend themselves. Private American programmers working for private American companies should be allowed to follow hackers back to the hackers’ servers of origin — and to sack and pillage whatever they can, using, sharing, or selling what they find. (They would be expected, of course, to be discreet in handling American IP and trade secrets in exchange for their letters of marque: quid pro quo.) I suspect there will be plenty of American software engineers willing to do some hacking for sport and profit.