Internet Law Commons^™

Defend Forward & Sovereignty: How America’S Cyberwar Strategy Upholds International Law, Elya Taichman

University of Miami Inter-American Law Review

To thwart a seemingly neve rending bombardment of cyberattacks, the U.S. Department of Defense recently implemented a new strategy – defending forward. This approach demands persistently engaging the enemy on a daily basis to disrupt cyber activity. Rather than waiting to be attacked, the United States is bringing the fight to the enemy. However, this strategy poses fascinating and complex questions of international law. In particular, because most defend forward operations fall within the gray zone of warfare, it remains unclear whether these operations violate the sovereignty of American adversaries or even third party nation states in whose cyberspace U.S. …

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

How I Learned To Stop Worrying And Love The Bots, And How I Learned To Start Worrying About Democracy Instead, Antonio F. Perez

Catholic University Journal of Law and Technology

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book’s assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens to …

Too-Big-To-Fail 2.0? Digital Service Providers, Nizan Geslevich Packin

Indiana Law Journal

The Article explains why addressing Too-Big-To-Fail 2.0 has not yet become a political and societal priority. First, digital service providers are technology companies, which, many believe, are shaped by market forces such that they fail and succeed in equal measure without producing negative ripple effects on the economy or society. Second, technology giants are not as carefully regulated as banks becauseunlike banks, they do not take insured deposits backed by the government. Third, even heavily regulated financial institutions have not been required until recently to focus on cybersecurity. Finally, some believe that there is no point in worrying about Too-Big-To-Fail …

Typhoid Mario: Video Game Piracy As Viral Vector And National Security Threat, Andrew V. Moshirnia

Indiana Law Journal

Current academic and policy discussions regarding video game piracy focus on the economic losses inherent to copyright infringement. Unfortunately, this approach neglects the most significant implication of video game piracy: malware distribution. Copyright-motivated efforts to shut down file-sharing sites do little to reduce piracy and actually increase viral malware infection. Pirated video games are an ideal delivery device for malware, as users routinely launch unverified programs and forego virus detection. The illicit nature of the transaction forces users to rely almost entirely on the reputation of websites, uploaders, and other users to determine if a file is safe to download. …

Furtive Encryption: Power, Trusts, And The Constitutional Cost Of Collective Surveillance, Jeffrey L. Vagle

Indiana Law Journal

Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications—including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S. citizen has encrypted her electronic …

Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen

Journal of Business & Technology Law

No abstract provided.

Biometric Id Cybersurveillance, Margaret Hum

Indiana Law Journal

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

Wikileaks And The First Amendment, Geoffrey R. Stone

Federal Communications Law Journal

FCBA Distinguished Speaker Series

In November 2010, Julian Assange's WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish …

A Soldier's Blog: Balancing Service Members' Personal Rights Vs. National Security Interests, Tatum H. Lytle

Federal Communications Law Journal

This Note examines the competing interests between ensuring military personnel's freedom of speech while protecting national security interests. The Author recognizes the necessity of protecting national security interests but emphasizes that military personnel's rights to free speech must be protected as long as such speech poses no threat to military security. In conclusion, clearer protections must be implemented to protect military personnel's right to free speech.

Encryption Regulation In The Wake Of September 11, 2001: Must We Protect National Security At The Expense Of The Economy?, Matthew Parker Voors

Federal Communications Law Journal

This Note argues that although privacy and economic concerns have ruled the encryption debate during the past decade, the move toward increased privacy on the Internet and relaxed encryption regulation, designed to promote electronic commerce, comes at the expense of national security and the protection of Americans' safety. The Article begins with historical information about encryption and an examination of how businesses use encryption to secure their communications and financial transactions on the Internet. This Section also observes that this technology is employed by terrorist organizations to accomplish the same goal: to send private communications. The Author next details the …