Cyber-Legalese

With the advent of cyberspace as a key warfighting domain for the U.S. military, lots of new legal questions arise. Exactly what laws apply, international and domestic, when service members gird for virtual battle with enemy nations, terrorist groups or individuals?

A draft version of the Air Force’s upcoming doctrine for cyberspace operations includes some clues about how the air service could ultimately opt to answer some of the questions.

For example, as airmen select cyberspace targets for engagement they should consider this:

Legal considerations and international legal obligations directly affect all phases of targeting. Those involved in targeting should have a thorough understanding of these obligations and be able to apply them during the target analysis. Operations in cyberspace are no different in this respect than any other domain. The operational law expert should apply the same standards to operations conducted in cyberspace as are applied in air and space. The laws of armed conflict apply equally to all. No special allowances should be made, nor additional approval sought. Considerations regarding proportionality of effects demand that the employment of capabilities in cyberspace adhere to the same professional, ethical, and legal standards and drive to precision that characterize kinetic attack operations.

On the defensive side, three different portions of the U.S. Code are relevant for service officials dealing with network intrusions and other “unwelcome activity,” the draft doctrine states.

For one, there is U.S. Code Title 18, which governs criminal law. The application of these laws could be “complicated by the need to gather forensic evidence and identify perpetrators, especially when cyberspace attacks cross national boundaries,” the document states.

Then there are the foreign intelligence surveillance authorities of U.S. Code Title 50 (“War and National Defense”), which could be applied “if it appears that unwelcome activity has been instigated by foreign entities,” the draft doctrine states.

Finally, there are the wartime statutes of Title 10. Under that authority, officials could order counterattacks, both in cyberspace and through “destructive kinetic responses,” the document reads.

The final version of the Air Force cyberspace doctrine is slated to be unveiled in the next few weeks, according to a service spokesman.