On the Use of Offensive Cyber Capabilities - Belfer Center for ...

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Domestic LawThe domestic legal environment is particularly complex for cyberoperations. Principally, the 4 th amendment to the U.S. Constitution offersprotection against unreasonable searches and seizures. This has significantimplications for international cyber operations against the U.S. that have adomestic nexus (e.g. a foreign-operated botnet that employs thousands of U.S.computers). Though not specifically codified in the U.S. Constitution, 40 theestablished right to privacy plays another role in this same vein. Additionally,the Foreign Intelligence Surveillance Act (FISA) (as modified in 2008) protectscitizens at home or abroad from electronic government surveillance without awarrant from a FISA court. This may hinder, for instance, the ability ofgovernment agencies to monitor Internet traffic of a U.S. citizen even if thatindividual’s computer or network is linked to (or has been coopted by) a foreigncyber actor.Legislation like the Computer Fraud and Abuse Act (CFAA) and theDigital Millennium Copyright Act (DMCA) place further constraints on whatsorts of cyber activity is legal. Lastly, the United States Code Titles 10 and 50delineate the authorities, responsibilities and limitations for the IntelligenceCommunity (IC) and the Department of Defense respectively. Because the IC andDoD often overlap with regard to cyber actions, this poses another complicatingfactor for cyber policy makers.40 For a brief synopsis, see (Linder, 2012)31
International LawInternational considerations may be even more complex. Primarily, thetreaties and customary laws that constitute the Law of Armed Conflict (LOAC) 41 ,including jus ad bellum and jus in bello tenets, play a key role in military policy.The main principles of distinction, proportionality and necessity are not onlyguiding tenets, but also exceptionally problematic in the realm of cyberspace.Multilateral treaties and agreements, such as the 2001 BudapestConvention on Cybercrime delineates five criminal offenses with respect to cyberactivity, which countries have implemented through various domesticlegislation. 42 Navigating the variety of international cyber law, of highly variablesophistication, and working towards a normalized transnational cyber lawregime will be a persistent challenge in cyber policy for the foreseeable future.The U.N. charter offers guidelines for the conduct between nationsregarding the use of force (in Article 2 (4)) 43 and self-defense (in Article 51). 44Specific case law exists as well that has relevance to policy for external cyberoperations. 45 The Universal Declaration of Human Rights Article 19 providesfurther protections to individuals’ freedom to “seek, receive and impartinformation and ideas through any media and regardless of frontiers.” 46Respecting this human right and balancing it with conflicting human rights (suchas the right to life, privacy, and property) is one of the core challenges in cyberpolicy formation.41 (International Humanitarian Law Research, 2009)42 (Council of Europe, 2001)43 (United Nations, 1945)44 (United Nations, 1945)45 Of note are rulings by the International Court of Justice regarding Nicaragua (Nicaragua v.United States of America, 1986) and the International Criminal Tribunal for Yugoslavia (UnitedNations).46 (United Nations, 1948)32
Page 1 and 2: On the Use of OffensiveCyber Capabi
Page 3 and 4: Table of ContentsAcknowledgements .
Page 5 and 6: Executive SummaryThe defining chara
Page 7 and 8: FrameworkAssessing the implications
Page 9 and 10: I. IntroductionThough conflict inev
Page 11 and 12: Unfortunately, we believe that ther
Page 13 and 14: To the maximum extent possible we u
Page 15 and 16: these cyberspace operations “comp
Page 17 and 18: Principles Driving the Ontological
Page 19 and 20: Cyber activity can have both logica
Page 21 and 22: cyberspace and complicates sound na
Page 23 and 24: cyber action, but we do find them t
Page 25 and 26: Cyber Pre-emption: External cyber o
Page 27 and 28: threatening external action or enta
Page 29 and 30: Figure 5: Framework for Cyber Polic
Page 31: effects of external cyber operation
Page 35 and 36: There is also an interaction betwee
Page 37 and 38: TemporalCommanders desire the abili
Page 39 and 40: InternationalMultilateral action is
Page 41 and 42: Potential changes to the “laws of
Page 43 and 44: Scanning:IV. Cyber Actions with Min
Page 45 and 46: The 4 th Amendment protects against
Page 47 and 48: operational intelligence collection
Page 49 and 50: security vulnerabilities are identi
Page 51 and 52: 1) Establish an interagency underst
Page 53 and 54: individual’s agency must be justi
Page 55 and 56: Finally section (f) exempts only la
Page 57 and 58: argue it is not intended to limits
Page 59 and 60: intrusion methods are required to e
Page 61 and 62: SystemicDespite the first order eff
Page 63 and 64: is possible. The capabilities used
Page 65 and 66: d. Section (f) should be expanded t
Page 67 and 68: indicates a will to keep the inform
Page 69 and 70: protections for privacy. However, t
Page 71 and 72: information on U.S. persons collect
Page 73 and 74: Example ScenarioThe following scena
Page 75 and 76: the awkward position: if it is unkn
Page 77 and 78: less severe than attack are largely
Page 79 and 80: treaties. This second set of duties
Page 81 and 82: persons. Beyond the limitations pla
Page 83 and 84:
instead of force, when cyber attack
Page 85 and 86:
collection effort to generate all t
Page 87 and 88:
and incentivize technology companie
Page 89 and 90:
operational capabilities for employ
Page 91 and 92:
2) To ensure the operational capabi
Page 93 and 94:
and are entirely permissible ethica
Page 95 and 96:
equires an external component. The
Page 97 and 98:
any one branch’s overreach. (We h
Page 99 and 100:
particularly from limiting espionag
Page 101 and 102:
more destructive/disruptive. Though
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to reach an interagency understandi
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counterattacks to serve as a deterr
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however, may require a significant
Page 109 and 110:
There is a possibility of a backlas
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2) The foreign external cyber opera
Page 113 and 114:
For the purpose of this work, a pre
Page 115 and 116:
Although the ethical considerations
Page 117 and 118:
ight to “life, liberty and securi
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would be hard to overstate. 131 Thi
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ConsequentialDomesticAs mentioned i
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extent to which the executive branc
Page 125 and 126:
public as new U.S. military technol
Page 127 and 128:
IC believes that the HVT is using 3
Page 129 and 130:
Policy Recommendations1) Use of cyb
Page 131 and 132:
identified by our ontology, spannin
Page 133 and 134:
Appendix 1: Summary of Recommendati
Page 135 and 136:
c. Amended (a)(2) (a), (b), and (c)
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gained) and necessity (only the min
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2) If overt, cyber force should be
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Cyber Intrusion: Unauthorized acces
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BibliographyAllison, G. T., & Black
Page 145 and 146:
Etzioni, A. (2011). Cybersecurity i
Page 147 and 148:
Jacobellis v. Ohio, 11 (United Stat
Page 149 and 150:
Nye, Jr., J. S. (2004). Soft Power.
Page 151 and 152:
United Nations. (1948, December 10)
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