Marvin Ammori

NPR had an excellent short piece on the laws regarding US military engagement for cyberwar–something several of my students will be helpful in shaping.

Recently, the Senate confirmed General Keith Alexander to head U.S. Cyber Command, a command dedicated to protecting US military networks from cyber-espionage and cyber-attack.  While the military is recruiting and training “fighters in the cyber domain” (read, people with technical skills), the military also needs a legal framework for engaging in cyber activities (needing people with legal skills).

The US military adopts and follows rules of engagement.  These are rules on how to engage the enemy–including when force is authorized, what kind of force is authorized, and who can authorize it.  These rules are related to our international obligations–undertaken in treaties and based on custom–referred to as the laws of armed conflict.  The rules of engagement cannot violate our international obligations, so we can think of the laws of armed conflict as outer bounds of the rules of engagement.  Often, our rules of engagement will be even stricter–providing, say, greater protection for civilians and neutral countries.

The NPR story discusses how the US Cyber Command is grappling with the legal issues.  Some include: who in the chain of command can authorize a counter-attack under particular circumstances; when and how can the military respond to an attack being routed through a neutral country (considering, for example, the Hague Convention); when is a preemptive cyber strike justified?

While teaching, I ask these questions, and others like them, every year in a class on Global Communications and Cyberwarfare Law.  We spend weeks on these issues–none of which yet have clear answers.

And, in my class, every year has been one US Air Force JAG attorney getting an LLM degree in the University of Nebraska’s Space & Telecom program.  After receiving the LLM, that JAG returns to the military to advise on cyber law and policy.

And I’m quite proud of them, for their hard work and for the task they’ve taken on for the nation.

So I’ll brag for a moment.

Our first wrote an excellent LLM thesis arguing that, on balance, a new cyberwar treaty is unnecessary.  She has been an advisor to Air Force’s “Cyber Command,” officially known as the 24th Numbered Air Force.

Our second is completing her thesis on how some domestic telecom rules could impede cybersecurity.  She will soon help advise the US Cyber Command.

Our third, who begins in August, has big shoes to fill.  But he has already impressed me when I met him at a recent conference we had in Nebraska.

So, at any rate, this is a post bragging about my excellent students and how proud I am of them.  I have enjoyed the intellectual challenge of working on such complex legal issues with the exceptional lawyers that the Air Force has sent to our program. And it’s an important challenge.

But this also gives me the opportunity to convey how thoughtfully and systematically (it seems from my point of view) the US military is addressing the legal, and even ethical, issues in this new space.  They should be commended.

In 1995, wearing her “academic hat,” Elena Kagan gave a speech to the National Association of Broadcasters, the Newspaper Association of America, and the Libel Defense Resource Center on the Relationship Between First Amendment Doctrine and Technological Change.

In the speech, she said something that would have been welcome to the broadcasters in the room: that the usual constitutional rationale resulting in “lesser” constitutional protection for broadcasters’ speech was senseless. Kagan told the audience:

For example, did the scarcity rationale ever make sense with respect to broadcasting? Perhaps courts should only with great forethought and caution determine that new technology demands a new legal framework.

The consequence to her assertion is simple: if this key rationale, “scarcity,” is senseless, then broadcasters like ABC and Clear Channel deserve increased constitutional protection for their speech.  And this increased protection would come from judges and Justices (such as a Justice Kagan) striking down congressional and FCC rules on broadcasters.

In mocking the scarcity rationale, Elena Kagan was disagreeing with Supreme Court majorities, as no majority has yet voted to abandon the scarcity rationale.

Kagan was, however, agreeing with the broadcast lawyers in the room.  She was also agreeing with Justice Clarence Thomas, who has devoted concurrences to attacking the rationale, siding with broadcasters.  But Justice Thomas and Kagan have many allies on this one–perhaps the majority of conservative and liberal free speech scholars at the time would have agreed that the scarcity rationale made no sense. Her statement would have been almost uncontroversial.

But, if Dean is confirmed to the Court, she will likely understand why the Supreme Court has never abandoned the rationale, despite the often off-hand academic attacks.  The real-world consequences of eliminating the scarcity rationale would be far-reaching–resulting in destabilizing the framework for communications in our society and producing outcomes adverse to individual speech rights.

These consequences are something that most speech scholars (including Kagan in 1995) generally overlook. This is  understandable as–with our specialized academic culture–many speech scholars are simply not expert in or even aware of the rules governing media, but necessarily specialize in some other important aspect of speech doctrine.

But the “unintended” consequences of eliminating the scarcity rationale are real.  The consequences include heightened judicial aggression (1) against some long-established campaign finance rules (both disclosure and access rules), (2) against government rules (with 80-years of precedent) for assigning frequencies to those who communicate wireless-ly from CBS to Verizon (paraphrasing Larry Lessig and Yochai Benkler, eliminating the scarcity rationale would make CBS “unconstitutional”), (3) against numerous media ownership limits designed to ensure that a small handful of corporations do not control the public’s sources of information, (4) against rules promoting children’s educational programming, and (5) against rules promoting noncommercial programming on satellite TV.

Indeed, while overlooking these consequences, scholars’ desire to eliminate the scarcity rationale seems targeted at exactly one 40-year-old case (called Red Lion, discussed below) that upheld a law that has now been repealed (and dead) for over 22-years.  But eliminating the far-reaching scarcity rationale to undermine Red Lion is like cutting off your fingers to clip your (already clipped) fingernails.  In fact, considering the far-reaching effects, it’s more like axing off your entire arm.  The scarcity rationale, senseless as it may seem, underpins many decisions that speech scholars–and most Americans–would strongly endorse.

I write this post in three parts.

I. I briefly explain the scarcity rationale, and do so from the point of view of its critics. Based on their understanding of the rationale, the rationale is as senseless as Kagan says.

II. I continue with real-world consequences, which are noted above.  Dozens of rules–obscure but highly significant–would be constitutionally suspect.

III. If the scarcity rationale doesn’t make sense but generally leads to good results, then a better understanding is necessary.  I briefly note what I think the scarcity rationale is really about, and which other rationales would place the many scarcity-supported pro-speech outcomes on firmer footing.

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