Cyber Warfare and Precautions Against the Effects of Attacks

37 Pages Posted: 19 Aug 2010 Last revised: 9 Jun 2015

Eric Talbot Jensen

Brigham Young University School of Law

Date Written: June 1, 2010

Abstract

Ninety-eight percent of all U.S. government communications travel over civilian-owned-and-operated networks. Additionally, the government relies almost completely on civilian providers for computer software and hardware products, services, and maintenance. This near-complete intermixing of civilian and military computer infrastructure makes many of those civilian objects and providers legitimate targets under the law of armed conflict. Other civilian networks, services, and communications may suffer collateral damage from legitimate attacks on government targets. To protect those civilian objects and providers from the effects of attacks, the law of armed conflict requires a state to segregate its military assets from the civilian population and civilian objects to the maximum extent feasible. Where segregation is not feasible, the government must protect the civilian entities and communications from the effects of attacks.

The current integration of U.S. government assets with civilian systems makes segregation impossible and therefore creates a responsibility for the United States to protect those civilian networks, services, and communications. The U.S. government is already taking some steps in that direction, as illustrated by a number of plans and policies initiated over the past decade. However, the current actions do not go far enough. This Article identifies six vital actions the government must take to comply with the law of armed conflict and to ensure not only the survivability of military communication capabilities during times of armed conflict, but also the protection of the civilian populace and civilian objects.

Keywords: cyber, law of armed conflict, law of war, precautions, attack, computer

JEL Classification: K10, K22, K33, L52, L96, L98

Suggested Citation

Jensen, Eric Talbot, Cyber Warfare and Precautions Against the Effects of Attacks (June 1, 2010). Texas Law Review, Vol. 88, p.1533, 2010. Available at SSRN: https://ssrn.com/abstract=1661218

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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