Cyberwar and Nebraska

I spent the last academic year, until last week, at the University of Nebraska-Lincoln, teaching cyberlaw and domestic and international telecom law.  It’s part of a great opportunity I was offered to help launch a space & telecom law program at the law school.

People wonder: why Space & Telecom together.  One answer is: satellites are governed by space law and by telecom law.

A second answer: look outside Omaha, about an hour from Lincoln, and notice US Strategic Command.  Let me quote part of their mission:

The missions of US Strategic Command are to deter attacks on US vital interests, to ensure US freedom of action in space and cyberspace.

This is space and cyberspace from a military perspective.  I’m guessing I’m one of the few cyberlaw professors to teach cyberwar law in my classes and to follow developments in the field.  (Outer space military law is someone else’s expertise.  As is space law in general.)

So I want to highlight an article from a few weeks back, in the New York Times, which is one of the better recent articles I’ve seen on cyberwarfare.

The articles discusses the facts and highlights many of the vexing practical questions, including one or two thorny legal questions.  In fact, the article ends with:

Senior Pentagon and military officials also express deep concern that the laws and understanding of armed conflict have not kept current with the challenges of offensive cyberwarfare.

Over the decades, a number of limits on action have been accepted — if not always practiced. One is the prohibition against assassinating government leaders. Another is avoiding attacks aimed at civilians. Yet in the cyberworld, where the most vulnerable targets are civilian, there are no such rules or understandings. If a military base is attacked, would it be a proportional, legitimate response to bring down the attacker’s power grid if that would also shut down its hospital systems, its air traffic control system or its banking system?

“We don’t have that for cyber yet,” one senior Defense Department official said, “and that’s a little bit dangerous.”

Another interesting question, both for domestic authorization and the laws of armed conflict, is embedded here:

Others have argued for borrowing a page from Mr. Bush’s pre-emption doctrine by going into foreign computers to destroy malicious software before it is unleashed into the world’s digital bloodstream. But that could amount to an act of war.

The law (and I say this with regret, as a lawyer) might be the least interesting aspect of the article to some–the weapons, the attacks, the threats are all fascinating and unnerving, and pretty scary if we’re not prepared for the next chapter in warfare.  As the Times also said:

Just as the invention of the atomic bomb changed warfare and deterrence 64 years ago, a new international race has begun to develop cyberweapons and systems to protect against them.

But,as our unnamed senior Defense official noted, it is dangerous that we haven’t worked the law out yet.  At the very least, to make that less dangerous, we have some good young law students and lawyers thinking about and studying the issue off in the heartland of America.  That’s one of the more rewarding things about being in Nebraska (among many)–making a contribution to future of our safety.


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