Download - Foreign Military Studies Office - U.S. Army

the computer attacker’s identity, law enforcement’s ability to characterize
intent, and the laws of the country concerned. In the US, for example, there are
specific laws that govern what a government agency can and cannot do when
attacked. That law grows fuzzier when the military is involved since the latter’s
activities are guided by the 1878 Posse Comitatus Act that prohibits the military
from taking on a law enforcement function or from executing civil laws.
John Brinkerhoff, an expert on the Posse Comitatus Act, noted that the
real intent of Posse Comitatus was “that it restored to the president the sole
authority for authorizing the use of armed force to enforce the laws of the
US.” 543 This apparently means that the president could authorize the armed
forces to protect ITSELF from information attacks and to actively seek and
destroy the perpetrators. More important for the Information Age, Brinkerhoff
added that a new law is required, one that sets the conditions for the use of the
armed forces in the homeland security and modern (Information Age) context.
The National Guard, which has state troops under the control of a state
governor, does not fall under the act.
A US Department of Justice site (http://www.usdof.gov/criminal/
cybercrime) lists US federal computer intrusion laws. Recent legislation
includes two actions: the USA Patriot Act of 2001 and field guidance on new
authorities relating to computer crime and electronic evidence enacted in the
USA Patriot Act. The Patriot Act is designed to unite and strengthen the US by
providing the appropriate tools required to intercept and obstruct terrorism. It
establishes a counterterrorism fund in the Treasury, amends federal criminal
code to authorize enhanced surveillance procedures (to include computer fraud
and abuse), provides guidelines for investigating money laundering concerns,
removes obstacles to investigating terrorism (granting the FBI authority to
investigate fraud and computer related activity for specific cases), and
strengthens criminal laws against terrorism, among other issues. 544
The second new authority, Field Guidance on New Authorities that
Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot
Act of 2001, provides authority to do several things. This includes intercepting
voice communications in computer hacking investigations, allowing law
enforcement to trace communications on the Internet and other computer
networks within the pen register and trap and trace statute (“pen/trap” statue),
intercepting communications of computer trespassers, writing nationwide
543 John Brinkerhoff, “Inside IT,” Homeland and Security and Information Technology
insert to Defense News, p. 18.
544 See http://thomas.loc.gov/cgibin/bdquery/z?d107:HR03162:@@@L&summ2=m&.
330