What Constitutes an Act of Cyber War?



Throughout history wars have been triggered by events. Being at war is a state or condition. To be legal, a war must be declared by a branch of the government entrusted by the Constitution with this power. In the Constitution of the United States, Article I provides Congress the power to declare war. War is defined as a contention by force; or the art of paralyzing the forces of an enemy. An act of war is typically defined as an aggressive act that constitutes a serious challenge or threat to national security, armed conflict, whether or not war has been declared, between two or more nations; or armed conflict between military forces of any origin. This frames the discussions around traditional war. In the physical sense it is easy to define such infractions; enemy troops crossing another countries border, military strikes by missiles or bombs, basically you know it when you see it. What constitutes a serious challenge and a threat to our national security in cyber space? That is much more difficult to define.

In the U.S. Army's Cyber Operations and Cyber Terrorism Handbook 1.02 I found the following reference to the definition of Cyber Warfare & Terrorism: "the premeditated use of disruptive activities, or the threat thereof, against computers and/or networks, with the intention to cause harm or to further social, ideological, religious, political or similar objectives or to intimidate any person in furtherance of such objectives." This was an excerpt from an article I wrote back in 2003 when the issue of cyber war was in its infancy. While this frames acts of cyber war, in retrospect it does not address a measure of the disruptive acts or provide guidance assess if individual acts, or a collection of acts rise to the level to be considered an act of cyber war.

If a foreign government hacks a sensitive system of another government and accesses security and defense information, is that an act of cyber war? If so, that has already occurred. If a foreign government hacks a sensitive system of another government and places software on the system that collects data and sends it back, is that an act of war? If military personal from a foreign government infiltrates another nation's networks or systems through the use of counterfeit hardware and monitors communications, is that an act of cyber war? Both are certainly acts of espionage and have already taken place. The factor that will determine if an act or acts of cyber attack rise to the level of an act of war rests in the magnitude of disruption that accompany the acts. Adding to the complexity is the fact that much of our critical infrastructure that are prime targets for cyber attacks are owned or operated by the private sector not the government. This infrastructure in some cases carries military communications, supports civilian emergency services as well business and consumer services. An attack on the infrastructure impacts multiple segments. The question of what constitutes an act of cyber war remains unanswered.

Given that we are in relatively new territory, each individual attack must be examined and the forensic evidence weighed to determine the source of attack. Little physical evidence will ever exist that you can hold up and point to or take a picture of and say "they did this." Much debate is currently taking place over the legality of cyber warfare tactics and their use. Is a cyber attack on our networks and systems an act of war? Are acts of cyber espionage a violation of international law? It is better we investigate and answer these questions now rather than reacting to cyber events in the heat of the moment when they occur.

-- Kevin Coleman

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