Cyber Security Without Cyber War
Mary Ellen O'Connell
Notre Dame Law School
August 8, 2012
Journal of Conflict and Security Law 2012 17: 187-209
Notre Dame Legal Studies Paper No. 12-70
Which government agency should have primary responsibility for the Internet? The USA seems to have decided this question in favour of the military — the US military today has the largest concentration of expertise and legal authority with respect to cyberspace. Those in the legal community who support this development are divided as to the appropriate legal rules to guide the military in its oversight of the Internet. Specialists on the international law on the use of force argue that with analogy and interpretation, current international law can be applied in a way that allows great freedom without sending the message that the USA is acting lawlessly when it comes to the Internet. Others reject this argument as unnecessary and potentially too restrictive. The USA need not observe international law rules, especially not with respect to the Internet. The way forward is to follow the Cold War strategy of threatening enemies with overwhelming force and preparing to act on these threats. This article also questions the application of international law on the use of force to the Internet. Rather than rejecting international law in general, however, the thesis here is that international law rules governing economic activity and communications are the relevant ones for activity on the Internet. Moving away from military analogy in general and Cold War deterrence in particular, will result in the identification and application of rules with a far better chance of keeping the Internet open and safer for all.
Keywords: cyberwar, cyber security, cyber law, international law on the use of force, national security law, self-defense
JEL Classification: K33Accepted Paper Series
Date posted: August 13, 2012 ; Last revised: August 29, 2012
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