Title: Should Cyber Exploitation Ever Constitute a Demonstration of Hostile Intent That May Violate UN Charter Provisions Prohibiting the Threat or Use of Force
Abstract: I. INTRODUCTION II. CYBER ATTACK AND CYBER EXPLOITATION A. Difference Between Cyber Attacks and Cyber Exploitations Generally B. Comparison of Cyber Attacks and Cyber Exploitations III. LOAC AND THE UN CHARTER A. Laws That Apply to Cyber Attack and Cyber Exploitation Generally B. The Law of Armed Conflict 1. Jus Ad Bellum and Jus In Bello 2. Specific Laws Governing Jus Ad Bellum IV. DIFFICULTIES APPLYING LOAC AND UN CHARTER PROVISIONS A. Physical Injury and Destruction vs. Infrastructure Controlled by Technology B. Cyber Attack Weapons Are Readily Available, Not Just Available to Governments C. Presumption of Nation-to-Nation Conflict Between National Military Forces D. The Interconnection of Military and Civilian Information Technology E. The Exception for Espionaget F. The Problem of Attribution V. CYBER EXPLOITATION AS A THREAT OR USE OF FORCE A. Cyber Exploitation as a Use of Under Current Laws B. Cyber Exploitation as a Threat of Force Under Current Laws C. Cyber Exploitation and Anticipatory Self-Defense Under Current Laws VI. NEW LAWS FOR CYBER THREATS: CYBER EXPLOITATION AS ESPIONAGE? A. Espionage Generally B. Differences Between Cyber Exploitation and Traditional Espionage 1. Access to Much Larger Breadth of Material 2. Much Easier and Less Expensive Access 3. Unknown Effects, Spread to Unintended Targets 4. Attribution Is Near Impossible 5. Long Time to Investigate, Few Conclusive Answers VII. CONCLUSION I. INTRODUCTION As the United States and other countries rely more and more on complex infrastructures that are primarily controlled by information technology, and cyber threats against nations become a reality, clear international laws on cyber threats become a necessity. In light of the fact that the United States and other nations may use cyber capabilities offensively as well as defensively, it is even more important that the laws for engaging in such cyber conflict are clear. This is especially true in the case of cyber exploitation because the effects of such exploitations can be far-reaching, but the international law regarding these exploitations is far from clear. Currently, it seems unlikely that cyber exploitation can ever be regarded as a threat or use of force under the UN Charter because it is typically regarded as espionage, which is permissible internationally. This Note first analyzes whether it is the case that cyber exploitation cannot constitute a threat or use of force and then analyzes whether that should be the case. Section II focuses on cyber attack and cyber exploitation generally, explaining the differences between the two threats and the similarities in the ways the two threats are carried out. Section III discusses what body of law is applicable to cyber attack and cyber exploitation when a nation engages in or defends against one of these threats, specifically the Laws of Armed Conflict (LOAC) and the UN Charter. Section IV discusses some of the primary difficulties in applying LOAC and the UN Charter to cyber threats. Section V analyzes whether cyber exploitation, under current governing law, can ever constitute a use of force, constitute a threat of force, or justify anticipatory self-defense. This section concludes that cyber exploitation, by itself, likely cannot constitute a threat or use of force under current law. Section VI then analyzes whether cyber exploitation should continue to be treated similar to traditional espionage in the international setting, which would result in it never being considered a threat or use of force. This section argues that cyber exploitation should be treated differently than traditional espionage and lays out several reasons why this should be the case. Ultimately, this Note concludes that because cyber exploitation is so different from traditional espionage, cyber exploitation should be able to constitute a threat or use of force by itself in some cases. …
Publication Year: 2012
Publication Date: 2012-05-01
Language: en
Type: article
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Cited By Count: 11
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