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Defending Against the Threat of Cyber Attacks and Its Legal Implications

By: Kimiya Gilani

The rising threat and implementation of cyberattacks from foreign actors has compromised the basic foundation of American Democracy. Cyberspace and cyber-attacks are being used to disrupt our government and challenge our democratic processes. This threat of digital warfare has pushed us into the age of digital defense against these attacks. To defend the United States’ interests and protect the security of the nation, the Department of Defense has been actively enhancing the strategies used to fight against these looming threats from nations such as China and Russia.

The Department of Defense is working to strengthen the systems and networks in place in order to protect against attacks. The Department recently announced a strategy called “defend forward” in which they offensively hack computer networks of foreign nations to defend against cyberattacks on U.S. systems by foreign actors. This strategy would allow the United States to get ahead of potential attacks by implementing protections and preliminary hacks to prevent destructive attacks on U.S. institutions and organizations. It is essentially a safeguard against attacks that could destroy national security and leave the United States vulnerable to manipulation by foreign actors. This gives the military broad authority to act unilaterally against both hostile and friendly nations.

The legal implications inherent in the strategies put forth by the Department involve national security concerns as well as international law concerns. The “defend forward” strategy could open up litigation against the United States in the international arena if it is not careful in its implementation of the policy. This litigation could arise from nations in which we implement these defense strategies against. The strategy is put in place to collect intelligence to prepare against attacks, but it must be done in a way as that does not violate the sovereignty of other nations and is not viewed as an act of war against other nations.

As we enter this age of digital warfare, nations must be careful to tread lightly and be strategic in the measures they take. The United States must be cognizant of Article 2(4) of the UN Charter which is the prohibition on the use of force. This forward defending policy, which is really an offensive move, could teeter on the line of use of force against other nations. As the world becomes more technologically connected, greater avenues for imposing our presence into foreign nation’s infrastructure become available and blur the lines on whether force is being used against that foreign nation. Digital acts of force are not as clear as traditional acts of force and warfare. Though the Department of Defense’s “defend forward” strategy is a measure put in place to protect against these cyber-attacks, it could be seen as an attack itself, which in turn can be seen as impeding upon the sovereignty of the nations we are “defending forward” against.

Whether it violates this Article of the UN Charter depends on how the hacks take place and what specifically is hacked. If these hacks are seen as a use of force against the political independence or territorial integrity of a State, then this strategy would be in violation of international law. The United States, specifically the Department of Defense, has to balance whether the benefits of defending against cyber-attacks through this offensive approach outweighs the risk of potentially violating international law through this charter and whether it is worth the potential litigation that could be mounted against the United States by the “attacked” nations. States could bring claims forward to the International Court of Justice where the disputes would be settled on through the court’s rulings. A member state who believes the strategy violates the UN Charter’s prohibition against the use of force could file a claim and bring it before the court, thus beginning the litigation process.

A defense strategy that is put in place to defend against attacks without offensively attacking infrastructure of foreign nations would be a safer approach to defending without imposing on the sovereignty of foreign nations and potentially opening the door to litigation or enacting an act of cyber-war against that nation.

The United States’ implementation of cyber defense strategies is opening the door to new forms of use of force against foreign nations and is ushering in a new form of potential warfare. The international law implications can lead to warfare and violations of the UN Charter against use of force. It is extremely important to have measures in place to defend against this growing threat of cyber-attacks on the infrastructure of our nation. Though this “defend forward” strategy is a step in the right direction to protect U.S. national security against outside actors, the United States must be aware of the possible international law repercussions, such as litigation or indirect acts of force, if they are not careful of its use.


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