Cyberattacks and the Constitution

Hoover Working Group on National Security, Technology, and Law, Aegis Series Paper No. 2007

Columbia Public Law Research Paper No. 14-675

20 Pages Posted: 13 Nov 2020

Date Written: November 10, 2020

Abstract

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers—and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Keywords: Cyber-attacks, cyber-operations, war powers, constitutional powers, intelligence law, Defend Forward, congressional oversight, cyberwar, escalation, foreign affairs powers

Suggested Citation

Waxman, Matthew C., Cyberattacks and the Constitution (November 10, 2020). Hoover Working Group on National Security, Technology, and Law, Aegis Series Paper No. 2007, Columbia Public Law Research Paper No. 14-675, Available at SSRN: https://ssrn.com/abstract=3728829

Matthew C. Waxman (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-0592 (Phone)
212-854-7946 (Fax)

HOME PAGE: http://www.law.columbia.edu/fac/Matthew_Waxman

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