by Jessica Poarch
According to the U.S. intelligence community’s worldwide threat assessment, cyber-attacks are increasingly becoming a threat to U.S. national security. Both the government and private sector networks have been “penetrated” by outside actors as the U.S. loses its “technological edge over other nations” due to the globalization of businesses*. The prospect, no matter how remote**, of a major attack on the U.S. raises questions about what rules should govern the response to such an attack.
A couple of weeks ago I attended a discussion between Professor Geoffrey Corn and Professor Jeremy Rabkin regarding Professor Rabkin’s new paper on Cyber Warfare and the Laws of Armed Conflict***. After some discussion it seemed that the only clear consensus was that determining a legal regime to govern cyber warfare presents unique challenges that will require an “out of the box” approach. What body of law should govern or should be used to analogize an approach was left an open issue.
One resource suggested at the event was The Tallinn Manual on the International Law Applicable to Cyber Warfare. According to its website, “The Tallinn Manual on the International Law Applicable to Cyber Warfare, written at the invitation of [NATO Cooperative Cyber Defence Centre of Excellence] by an independent ‘International Group of Experts’, is the result of a three-year effort to examine how extant international law norms apply to this ‘new’ form of warfare. The Tallinn Manual pays particular attention to the jus ad bellum, the international law governing the resort to force by States as an instrument of their national policy, and the jus in bello, the international law regulating the conduct of armed conflict (also labelled the law of war, the law of armed conflict, or international humanitarian law). Related bodies of international law, such as the law of State responsibility and the law of the sea, are dealt within the context of these topics.”
The issues of Cyber Security and Cyber Warfare are gaining momentum in the International Law community. The Federalist Society just started a Teleforum series on Cybersecurity and Public Policy, and I am sure that many more papers are being written and events are taking place all around the U.S. Stay tuned for more to come on LOACblog.com.
* All quotes were taken from CNN’s Report: Cyberattacks a key threat to U.S. national security
** “The Internet is increasingly being used as a tool both by states and by non-state actors, such as terrorist groups, to achieve their objectives, the report says. However, there is only a “remote chance” of a major cyberattack on the United State that would cause widespread disruptions, such as regional power outages, the report says. Most countries or groups don’t have the capacity to pull it off.” Report: Cyberattacks a key threat to U.S. national security
** You can read Professor Rabkin’s paper here.