Cyber war, cyber crime, and jurisdiction


It’s an odd thing about ‘cyber’ as a prefix– with the exception of cyberspace, it almost always means something bad. We have cyber-crime, cyber-war, cyber-bullying, but never cyber-puppies or cyber-joy. And most of the people working in technology don’t use the term at all. But it is a big thing in government and policy circles.

We had a great discussion in the seminar this week with Michael Sulmeyer about cyber war. The subject is complicated by the difficulty of distinguishing between cyber war, cyber crime, and cyber espionage. There are rules about war, but they were developed for the kind of conflict that occurs in physical space. The rules for conflict in the digital world are not well understood. And the notion that the two spheres of conflict will remain distinct is something that few believe. We have already seen some attacks that move from the digital world to the physical world, but there is little understanding of how an escalation from the digital world to the physical world would work. What are the rules, and what can be expected from adversaries? Without having some notion of reasonable escalation, it is hard to tell were any attack will end.

One worry that I have is that the pace of change in technology is so much faster than the pace of change in the policy and legal worlds. Getting countries to talk to each other about the rules of cyber engagement takes years, and reaching an agreement takes even longer. By the time treaties can be written and agreed upon about some aspect of technology, the technology has changed so much that the agreements are irrelevant. How to get these time scales more in synch is a difficult problem.

But I think a larger problem is getting the right set of players into the discussion. Most countries think that discussions about trans-national conflict need to take place between countries, which is reasonable in the physical world. But when we talk about the cyber world, just having the various countries at the table misses a major set of actorsРthe technology companies that are building and shipping the technology that make up the cyber world. As was pointed out in our reading by Egloff, we now live in a world where major players include the corporations, much as was the case during the age of exploration. Keeping these players out of the discussion means that major forces are not represented. Companies like Google or Apple may be based in a single country, but their interests cannot be fully represented by their home government. They are powers themselves, and need to be represented as such.

It may seem strange to think of the tech giants in this way, but no more so than seeing the influence of the East India Company or the Hudson Bay Company during the age of exploration. It took a couple hundred years to work out the law of the sea; I hope that we can do better with cyberspace.

Governing the ungovernable
Caught between bad and worse…

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