Congress’s Role in Cyber Warfare

In his celebrated concurring opinion in The Steel Seizure Case, Justice Jackson cautioned that “only Congress itself can prevent power from slipping through its fingers.” Jackson’s warning seems especially pertinent today, as we prepare urgently for cyber warfare – facing potentially enormous threats from yet unknown enemies, and finding ourselves dependent on staggeringly complex, unproven technology. The executive branch, which has special expertise and agility in national security matters generally, as well as substantial constitutional authority, has taken the initiative in these preparations. Yet if Congress is to be faithful to the Framers’ vision of its role in the nation’s defense, it must tighten its grip and play a significant part in the development of policies for war on a digital battlefield. It also must enact rules to help ensure that these policies are carried out.

Square Legal Pegs in Round Cyber Holes: The NSA, Lawfulness, and the Protection of Privacy Rights and Civil Liberties in Cyberspace

One of the major themes of the Cyberspace Policy Review (the Review) is that a national strategy on cybersecurity must be consistent with the protection of privacy rights and civil liberties guaranteed by the Constitution and the law.

The Past, Present, and Future of Cybersecurity

The cyber threat is the most pervasive and pernicious threat facing the United States today. Its mention does not immediately conjure visions of the catastrophic horrors that would result from an attack using a weapon of mass destruction, but today’s cyber threat is a very real and present danger.