Panel: U.S. lacks legal framework to fight in cyberspace

Experts point to lack of policy

The United States is hamstrung in defending itself in cyberspace by a lack of policies and legal framework for waging war in the new military domain, a panel of government and private-sector experts said today.

The national and international laws of armed conflict that govern conventional warfare don't adequately address issues raised about fighting a war online with digital weapons against enemies who cannot be identified, panelists said.

Offensive action by the military will require policy decisions and legal authorities that have not yet been made, said Herb Lin, chief scientist on the Computer Science and Telecommunications Board at the National Academies' National Research Council.

Although defensive activities are well established, “the offensive side of it is not very much talked about,” Lin said.

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Establishing a framework for conducting cyber war without jeopardizing the privacy and civil liberties of civilians who use the Internet is possible but complicated, said Steven Bucci, former deputy assistant secretary for homeland defense at the Defense Department and now cybersecurity lead for the Global Leadership Initiative at IBM Global Services. Striking the appropriate balance will require both national policy and laws that establish definitions and limits of actions, he added.

“We’ve got to do it soon,” he said. Cyber war "is not as theoretical as some people think. It is not that difficult to cause great amounts of damage.”

The discussion of the nation’s preparedness for cyber war and cyber terrorism was part of a five-day series of programs on homeland security hosted by the Heritage Foundation in Washington. Also participating on the panel was Alejandra Bolanos, assistant professor of international security studies at National Defense University.

The discussion comes at a time when DOD is ramping up its U.S. Cyber Command, which has been tasked with conducting offensive and defensive activities in cyberspace. The command, which will draw on the capabilities of the National Security Agency, is due to become fully operational in October but is still without an overarching strategy for conducting its mission.

Deputy Defense Secretary William Lynn said Aug. 25 that a formal strategy document will be drafted this fall and completed by the end of the year. The document will build on Cold War strategies, including international cooperation with allies to provide early warning of threats, and will extend the military’s protection to cover some nonmilitary elements of the nation’s critical infrastructure.

Lynn said that in drafting the strategy, DOD will consult with Congress about the possible need for new legislation to provide explicit authority for offensive action.

Developing a policy on which legislation could be based is complicated because we still have no working definition for cyber war. Defining the points at which intrusions become espionage or an act of war still remains to be done, Lynn said.

“We are still working through where these thresholds are,” he said. “This is far less clear than for nuclear” warfare, which defined the strategies of the Cold War.

Attribution, or the ability to identify the source of an attack, is a particular problem. “Attribution is very difficult,” Lynn said. “Even when you can do it, it takes a long time.”

Because of this, the country’s cyber defense strategy is likely to rely more on defensive strategies than on retaliation, which was the backbone of the U.S. Cold War strategy.

Bucci said an effective cyber war strategy should address both the most dangerous though unlikely threats, which include attacks by nation states, and the most likely threats, such as cyber terrorism.

Bolanos, who has monitored online activity by al Qaeda organizations, said that despite the organization’s use of the Internet for informational and support purposes, offensive capability has yet to materialize. But she has observed a sharp learning curve among terrorists that is coupled with the intent to conduct cyber jihad. This does not foreshadow a cyber Armageddon, she said, but it cannot be ignored.

She said cyber war is likely to be analogous to the current fight against terrorism, which does not conveniently fit current laws of armed conflict because the fight is not being waged against nation states, the combatants are difficult to recognize and identify, and they exploit neutral parties and use go-betweens to mask their activities.

Conducting the war against terror has led the United States into strategic and legal complications because accepted policies and laws do not apply very well to new circumstances. Work is needed to prevent similar complications in cyberspace, Bolanos said.

About the Author

William Jackson is a Maryland-based freelance writer.


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