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20 March 2020

On Wednesday, March 11, Lawfare kicked off its Cyberspace Solarium Commission Report Series—a series of commentaries on various aspects of the official report of the Cyberspace Solarium Commission.Robert M. Chesney, Strauss Center Director and James Baker Professor in Law, introduced the series with his piece titled The Pentagon’s General Counsel on the Law of Military Operations in Cyberspace. In it, Chesney outlined the statements of the Defense Department’s General Counsel on the legal frameworks governing cyberspace. He began by noting that the Defense Department has commented on this before, and therefore these comments ought to be seen as building upon prior comments. He then outlined the speech’s highlights of interest related to domestic regulation in cyberspace, namely: its insight into the NSPM-13 framework; the Defense Department’s perspective on separation of power issues; the Computer Fraud and Abuse Act’s application (or lack thereof) to cyber military operations; an acknowledgement of the importance and difficulty of questions surrounding the first amendment’s application to “military operations intended to disrupt foreign propaganda efforts targeting U.S. audiences;” and finally, a confirmation that military cyber ops are not “covert action.”

Chesney then examined the highlights of this speech relating to international law, discussing first: the speech’s jab at the Tallin Manual; what constitutes a “use of force” in cyberspace; what constitutes prohibited “intervention” in cyberspace; and an affirmation of the fact that international law does indeed apply in cyberspace. Chesney spent considerable time analyzing two specific highlights: first, the use of countermeasures in cyberspace, and second, the intersection of cyber operations and the international law rule of sovereignty. Countermeasures refer to those “otherwise-unlawful measures in proportionate response to an internationally wrongful act of another state, in order to stop the other state’s wrongful action.” Chesney discussed the three factors which lead to uncertainty in relation to the use of countermeasures, and notes that the speech—while affirming the state of disagreement surrounding the issues—remains agnostic on the matter. As for his discussion of the intersection of sovereignty and cyber ops, Chesney began with an overview of the state of disagreement surrounding the validity of the claim that “’sovereignty’ is a stand-alone rule of international law that might be violated by military operations in cyberspace even in circumstances that do not constitute the use of force or coercive intervention.” He concludes this discussion by arguing that the speech seems to indicate that the Defense Department may opt to take a more hardline stance on this issue. Read the full article here.

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