Most scholars who have tackled the internet “kill switch” subject come to a rather hasty conclusion that the President has the authority to shut down the internet under his emergency powers by invoking section 706 of the Communications Act of 1934 (codified as 47 U.S.C. § 606).
Over the years, this supposition has been debated on the fringes. Laura B. West’s article adds to that debate, brings it front and center, and argues that the current legal authorities are wholly inadequate to address the possible need to quarantine, isolate, or shutdown computers or portions of the internet or networks within the United States in a time of emergency caused by a massive cyber-attack.
Even if current domestic authorities can withstand the policy and legal scrutiny, the uncertainty and potency surrounding such authorities is surely enough to warrant new legislation that can provide “clear guidance and an enhanced ability to rapidly execute national level decisions for response options to sophisticated attack.” Accordingly, the time is now to rethink executive cyber emergency powers before there is a true need to build cyber walls.
Although acts of cybercrime and cyberwar are different, the lines between the two have been become blurred over time. The nature of cyberspace has complicated the pre-existing doctrine for armed attacks, yet they are still being applied. Furthermore, the United States historically has responded to malicious cyber activity through a militarized lens.
This tendency to lean towards and emphasize a militarized approach has displaced the domestic law enforcement approach and left it inadequately trained, inadequately resourced, and inadequately supported to identify, deter, and punish offenders. Discussions currently neglect other existing frameworks and the development of new ones to address malicious cyber activity
Without a comprehensive international legal framework governing malicious cyber activity, Mieke Eoyang and Chimène Keitner seek to encourage greater awareness of the consequences of viewing malicious cyber activity through only an armed conflict lens.
While the barrage of cyberattacks around the world continues to increase, the lack of effective global cybercrime enforcement has allowed cybercriminals to operate with near impunity.
Although there have been a number of efforts to increase international cooperation on cybercrime enforcement, many of these efforts have been hindered due to the lack of capacity building among countries to provide criminal justice actors with the ability to implement and enforce these instruments.
Through an in-depth examination of the global developments in cybercrime and the major challenges to international cooperation among countries, Amy Jordan and Allison Peters provide a variety of recommendations aimed at overcoming the barriers in capacity building among nation states in order to close the global cyber enforcement gap.