Sunday, July 5, 2015

Justice and Warfare in Cyberspace

There was a moment during the First Gulf War when ideologues argued that warfare technology had reached a tipping point. Gains in efficiency would reduce casualties and destruction; supremely accurate weapons would minimize unnecessary suffering without compromising military objectives. This inaugurated the age of target bombings and stealth missions enabled by precision technology. Now, we are at the threshold of yet another tipping point for war and technology. Software interference and cyber technologies threaten mass disruptionand destruction without a shot or bomb explosion. Physically waged wars—populated and won by armed bodies and manned weaponry—have given way to data and coding wars, creating vast, powerful, and yet not fully tapped, spaces and abilities.

Cyberwarfare acts are broadly understood as the use of cyber capabilities for spying or sabotage by one nation against another. However, the term “cyberaggression” can refer to everything from individual cyberbullying and harassment to sabotage that affects national interests. One example of the latter type is the infamous Stuxnet computer worm that targeted and invaded Iranian nuclear facilities in order to derail the Iranian nuclear program. The term ‘cyberaggression’ was also applied to the April 2015 breach of cybersecurity at the White House when sensitive details of the President’s schedule were obtained. It is therefore of little surprise that civilian and military resources to wage and contain cyberaggression are on the rise. Last January, there were reports that North Korea had doubled its military cyberwarfare units to over 6,000 troops.

To be sure, it is not clear when an act is merely an instance of cyberaggression as opposed an act of war. To complicate matters further, our conception of cyberwarfare and cyberaggression is taking shape against a background of increasing state domestic surveillance and other incursions to privacy, often defended on the basis of considerations of safety or convenience. (...)

In asking the question of what cyberaggression is—and when such aggression constitutes an act of war—we confront questions of how to (or if it is even meaningful to) apply the old paradigms of the state and state sovereignty, and of the laws of war based on them, to the new realities of cyberspace. One of the more important aspects of the traditional laws of war is the question of proportionality. According to standard understandings of the proportionality principle, a military in war has to weigh risk to civilians against the importance of the military objective at hand and the choice of military means to achieve their objective. How would proportionality apply in cyberspace, where victimization is not necessarily physical in personal or economic terms?

Imagine, for example, that the United States assesses a variety of serious cyberthreats coming from a foreign territory—these might range from shutting down White House cybercommunications to disrupting nuclear power plant operations in the US. As a response, the United States neutralizes or erases all of the cyber content created and hosted within that foreign territory so that individuals within this territory are no longer able to have a cyberpresence, effectively wiping out communications between the conspirators behind the serious threat in question. According to Rule 51 of the Tallinn Manual—a non-binding guide to the application of international law to cyberconflicts produced by NATO—collateral damage in cyberwar is acceptable so long as it is not “excessive in relation to the concrete and direct military advantage anticipated.”If no tangible “property”was destroyed and nobody was killed, was the act proportional? Under the current laws of war, the answer could be yes. However, given how much of life has moved or expanded to cyberspace, would this answer pass moral and legal muster?

One argument that may come into play in such new scenarios is the economic one. People’s data is immensely valuable on such a large scale—some estimates put the average value of a Facebook account at $174.17. Even if only a quarter of, say, the Russian population has a Facebook presence, erasing even selective cybercontent would amount to approximately 5.2 billion dollars in damages. However, there is also an added emotional value. Social media is becoming more and more central to the lives of individuals, and the content created, curated, and “owned”in cyberspace is very personal indeed. To lose such a cache would be, to many, devastating in a way that monetary value does not account for.

Some argue that unless and until cyberaggression escalates to the point of threatening life and limb, it should not be put into the context of warfare. Others argue that response in kind does nothing to redress the act, and that physical response to certain acts of cyberaggression is the best option. Still others believe that the traditional laws of war are not applicable to cyberwarfare and cyberaggression and that explicit rules about the consequences for cyberaggression should be created. These positions only scratch the surface of the legal and moral challenges ahead.

by Lisa Lucile Owens, Boston Review | Read more:
Image: NASA Marshall