Justice Lawyers Try to Define Cyber War

Run for the hills! The Department of Justice‘s lawyers are trying to figure out just what would constitute an act of war during a cyber attack. OK, it may not be that bad, but the specter of a room full of government lawyers trying to decide what constitutes an act of war when it occurs via the Internet is not terribly reassuring.

To be fair, no one has come up with a decent answer to what turns out to be a very thorny question. The hardest question to answer in cyber war is the one that used to be pretty simple: who attacked us. But the structural anonymity of the web allows attackers to mask their origins.

When the Obama administration announced creation of its cyber task force, led by Melissa Hathaway, there was great hope that the White House effort would finally answer the very basic question: what constitutes an attack on the United States that we can legally and morally respond to with overwhelming force.

Hathaway appeared last week at an event at the National Press Club and I asked her what the answer might be. She pointed to the International Telecommunications Union (ITU) as a possible source for answers. She said the cyber world bore striking similarities to radio. Both transcend borders and provide crucial international services. The ITU is a United Nations agency that manages frequency and other central international issues that affect radio.

The ITU’s leader has a pretty good idea how high the stakes are. “The next world war could begin in cyberspace,” Dr. Hamadoun Touré, ITU secretary general said in October last year. At the time, Toure pledged to have “a global agreement with every country to protect its citizens online, not to harbor cyberterrorists, and not to start an online attack.” He’s not there yet.

And the Obama White House clearly decided to put off its decision on what could spark a war. After all, a bunch of Justice Department lawyers, no matter how smart and dedicated, can’t make such a momentous decision without strong direction from the Oval Office. It will have to be an interagency decision, so watch James L. Jones to see when the National Security Council wades in to push things along.

But Hathaway’s comparison of radio with cyber is pretty compelling. One big difference — radio direction finders and other technologies exist to determine the source of a radio broadcast with a pretty high degree of certainty. We’re not there yet with cyber and we may have to wait for it before the policy decision can be made.

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