Cyber Due Diligence

66 Pages Posted: 8 Jul 2021

See all articles by Eric Talbot Jensen

Eric Talbot Jensen

Brigham Young University School of Law

Sean Watts

Lieber Institute for Law & Land Warfare, West Point; Creighton University School of Law

Date Written: June 30, 2021

Abstract

Due diligence—the notion that international law includes a duty to cease and remedy damage that emanates from a State’s territory—has been proposed as an international legal measure to temper destabilizing effects of harm from cyber infrastructure. Yet the extent to which States, particularly the United States, accept due diligence as either a principle of general international law or as a rule of conduct applicable to the context of cyberspace is not clear. This Article examines past and present U.S. experience with due diligence, both as a principle and rule of conduct in general international law. In light of U.S. foreign relations history, a trend toward acceptance among allies and partners, and clear utility to State relations in cyberspace, we argue for renewed acceptance by the United States of the general principle of due diligence and its specific application to cyber operations.

Keywords: cyber, due diligence, international law, public policy, computer

JEL Classification: K1, K33

Suggested Citation

Jensen, Eric Talbot and Watts, Sean, Cyber Due Diligence (June 30, 2021). Oklahoma Law Review, Vol. 73, No. 645, 2021, BYU Law Research Paper No. 21-11, Available at SSRN: https://ssrn.com/abstract=3877493

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

Sean Watts

Lieber Institute for Law & Land Warfare, West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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