From: Jurist
JURIST Guest Columnist Kevin Govern of Ave Maria School of Law discusses the latest cyber security agreement between China and the US
In this era of great cyber danger and opportunity, my colleagues and co-editors Jens Ohlin from Cornell Law School and Claire Finkelstein from the University of Pennsylvania Law School and I had the privilege of contributing to and editing a book that assembles the timely and insightful writings of renowned technical experts, industrial leaders, philosophers, legal scholars and military officers as presented at a Center for Ethics and the Rule of Law roundtable conference entitled Cyberwar and the Rule of Law.
That work, Cyber War—Law and Ethics for Virtual Conflicts, explores cyber warfare’s moral and legal issues in three categories, pertinent to any cyber security agreement that may be concluded, not just the present Sino-US accord. First, it is critical to address foundational questions regarding cyber attacks. What are they and what does it mean to talk about a cyber war? State sponsored cyber warriors as well as hackers employ ever more sophisticated and persistent means to penetrate government computer systems; in response, governments and industry develop more elaborate and innovative defensive systems. There are valid alternative views concerning whether the laws of war should apply, whether transnational criminal law or some other peacetime framework is more appropriate, or if there is a tipping point that enables the laws of war to be used. Secondly, cyber security challenges traditional conceptualizations of the law of war, or jus in bello, in determining how they might be applied to cyber-conflicts, in particular those of proportionality and necessity. It also investigates the distinction between civilian and combatant in this context and studies the level of causation necessary to elicit a response, looking at the notion of a “proximate cause.” Finally, it is essential to analyze the specific operational realities implicated by cyber warfare technology employed and deployed under existing and potential future regulatory regimes.
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