Allegations that Stuxnet was part of a U.S. planned and led covert cyber operation and assertions that a nation-state used a cyber-attack in support of national security objectives reinvigorated the attention of cyber-law commentators. Military attorneys, however, must translate deeply theoretical discussions into concrete legal advice. This article concludes that treating all cyber techniques as weapons is impractical. Rather, an assessment focusing on how a capability will be used in context, especially of the primary purpose of the capability, is more effective and consonant with international law. This approach will more clearly delineate cyber attacks and permit a separate discussion of the great majority of cyber events—those that fall below the level of attack.
The cybersecurity risks to the nation’s critical infrastructure and key resources are significant and increasing every day. While a sound legal basis exists for the government to use computer intrusion detection technology to protect its own networks, critical infrastructure and key resources, primarily owned by the private sector, are governed by a different set of constitutional principles and laws. This article explores the potential for a new cybersecurity exception to the Fourth Amendment’s warrant and individualized suspicion requirements. By viewing cybersecurity through a protective Fourth Amendment lens, as opposed to a criminal, intelligence, or military lens, fairly well established legal frameworks from the physical world can be applied to cyberspace to enable the government to use technology to identify malicious digital codes that may be attacking the nation’s critical infrastructure and key resources without running afoul of the Fourth Amendment.
The article argues that reasonable and limited digital scans at virtual checkpoints in cyberspace, which are binary and do not initially expose the contents of the communications to human review, and “cyber-Terry stops,” are a constitutional and effective way to minimize the cybersecurity risks to the nation. The article proposes that Congress consider and enact sensible new legislation that will specifically enable the government to take remedial and other protective actions in cyberspace within the constitutional framework that has enabled this nation to prosper.
During the last two years of the Bush administration, the senior leadership at the U.S. Department of Homeland Security (DHS) spent substantial time and effort in first helping to craft, and then attempting to implement, Homeland Security Presidential Directive 23/National Security Presidential Directive 54 (HSPD 23/NSPD 54), Cyber Security and Monitoring.