Category Archives: Cybersecurity

“I have found Vol. 4:1 of the Journal of National Security Law & Policy, the Cybersecurity Symposium, to be an invaluable resource. I use many of these articles in my research and clinic preparation, and am glad to have a bound, hard copy that I can grab from my shelf and mark up as I like.” -Eric J. Lobsinger, Teaching Fellow, Georgetown University Law Center

Defining the Scope of “Possession, Custody, or Control” for Privacy Issues and the CLOUD Act

With a growing number of US companies storing their electronic data across country lines, US law enforcement agencies are left with the difficult task of trying to access electronic evidence stored outside of their physical jurisdictions.

In response, Congress passed the Clarifying Lawful Overseas Use of Data Act (Cloud Act) in 2018 to provide the US government with the power to order the production of electronic evidence that is stored outside of the US if it is within a US company’s “possession, custody, or control.”

However, the Cloud Act does not define what constitutes the “possession, custody, or control” of electronic evidence, raising concerns about the scope of US authority under the Act. Through their examination of existing domestic and international jurisprudence interpreting these terms in other legal contexts, Hemmings, Srinivasan, and Swire outline the key factors courts should balance in analyzing this pivotal phrase.

Persistent Enforcement: Criminal Charges as a Response to Nation-State Malicious Cyber Activity

Malicious cyber activities by foreign states present major challenges to the US government. Foreign governments steal intellectual property, attack election systems, wage influence campaigns, and cripple American companies. One tool brought to bear most recently against these state actors is the criminal indictment.

This article reviews the use of criminal charges as a response to nation-state hacking and proposes a conceptual framework for understanding the utility of those charges as a tool to effectively combat malicious cyber activity.

Finally, the article applies this framework to case studies involving China, Russia, Iran, Syria, and North Korea and evaluates the use of criminal charges as a component of broader U.S. cyber policy.

Personal Information as an Attack Vector: Why Privacy Should Be an Operational Dimension of US National Security

The US government has always been keen on its ability to protect sensitive and classified information from its enemies, yet the majority of resources have focused on military and national security information, which has left other categories of information exposed.

Capt. Christopher Dearing focuses the reader on the national security implications of personal information and the detrimental impact it possesses. This article provides an analysis of current privacy law and the information landscape, while highlighting areas where the US government has failed to keep pace to protect personal information, providing a valuable target for adversaries.

In an expansive call for action, Capt. Dearing recommends eight concrete steps that the government can take to better protect and manage personal information while developing stronger procedures to identify threats and respond to them.

Projecting Power: How States Use Proxies in Cyberspace

How and why do states use cyber proxies to project power? Why do some states lean closer to these proxies than others, and what does this distance reveal about how a state views them? In this article, Syed Hamza Mannan answers these questions in a review of Tim Maurer’s book, Cyber Mercenaries: The State, Hackers, and Power.

Mannan explores the demand for cyber proxies, the mechanisms states use to control them, and the implications of cyber state-proxy relationships. Perhaps Maurer’s most prevalent contribution to the research, articulated in Mannan’s review, is in constructing a framework for characterizing different relationships states maintain with cyber proxies: those of delegation, orchestration, and sanctioning. By applying the framework to contemporary examples of cyber proxy proliferation, Mannan’s review illuminates Maurer’s important work.

Sovereign Immunity in Cyber Space: Towards Defining a Cyber-Intrusion Exception to the Foreign Sovereign Immunities Act

In light of recent foreign cyber-assaults that have jeopardized personal privacy in the United States, it is time for individuals to explore opportunities for private suits against foreign governments. In the first attempt to do this, Doe v. Federal Democratic Republic of Ethiopia, the courts found that the Foreign Sovereign Immunities Act barred suit under the Wiretap Act’s private cause of action and the common law tort of intrusion upon seclusion. Kurland posits that either a new exception should be added to the FSIA to ameliorate this legal lacuna.