AG Holder Calls for Rule of Law in Cyberspace

The United States Department of Justice has released this text of a speech given by Attorney General Eric Holder at the Northwest Indiana Cyber Security Summit in Hammond, Indiana on Thursday, June 9, 2011.

The speech reviews the immediacy of problems in cyberspace and various Department of Justice initiatives – all good work, in my personal view. (Full disclosure: I was a long-time DOJ employee.) AG Holder also emphasized the need for international cooperation and the Obama Administration’s “new International Strategy on Cyberspace.”  Included in the speech is this paragraph:

Today’s summit sends a resounding signal that – together – we can, and will continue to, fight back. And it proves our unwavering commitment to preventing terrorists and other criminals from exploiting the Internet for planning, financing, or executing attacks; to engaging with an expanded network of partners across government and the private sector; and to strengthening our efforts to establish the rule of law in cyberspace. (emphasis added)

The speech contains no other mention of the rule of law.

The Attorney General has side-swiped an enormously important and difficult issue: the rule of whose law in cyberspace?  The network of networks that comprises the Internet surely is not immune from national borders and legal jurisdictions. (See, Goldsmith, Who Controls the Internet? ) Yet, the Internet is surely international.  Is the United States to make the law that rules the Internet?  On what authority?  Should all countries with interests in cyberspace impose their commercial, property, and criminal laws on any actor in cyberspace of whose body or assets that can physically obtain jurisdiction? Should the United Nations – hardly a democratic institution – make the laws that rule cyberspace?  If international in effect, shouldn’t the laws be made internationally?  How – by international consensus?  What is the International consensus defining, much less proscribing, “terrorism” in any domain, much less cyber?  Even aside from the problem of “one person’s terrorist is another person’s freedom fighter,” close allies often do not agree on the definitions for criminalizing terrorist activity on the Internet.  For example, members of the European Union routinely attempt to stop websites from posting content whose dissemination is protected by the First Amendment to the Constitution of the United States.

There is very little agreement on a definition of “rule of law.”  Indeed, some argue that the phrase is so overused that it is meaningless.  Assuming that the rule of law is a necessary antecedent of democracy that all U.S. officials such as the Attorney General justifiably support, its definitions tend to be either ends-based or institutional and to include some variation of the following elements:

  • supremacy of the law over government and arbitrary power;
  • equality before the law;
  • known, public, and certain law;
  • predictable and efficient law enforcement;
  • guarantee of certain basic rights;
  • legitimate and uniform procedure for making law.

What law is supreme over all of the governments and actors in cyberspace?  Or is it just sufficient that all are subject to some law?

Given the difficulties of attributing acts in cyberspace to particular human actors, how can the law be enforced – and enforced equally – in cyberspace?

If the United States claims criminal jurisdiction over any “computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States,” (18 U.S.C. 1030) how can it make U.S. law known to all actors in cyberspace?

If each country can enforce its laws in cyberspace, how can enforcement be sufficiently predictable for individuals to conform their behavior or for corporations to plan and organize economic activity?

What are those basic rights?  Equal access for all?  Freedom of speech, even for Nazis and Jihadists?

Again, what is the procedure for making the law that governs cyberspace, and who or what has legitimate authority to do so?

Has the Attorney General and the Department of Justice thought about and planned for these elements of the rule of law before calling for “establish[ing] the rule of law in cyberspace?”  If not, how do they defend against a cynic’s claim that such a call is just self-serving effort by a bureaucracy to extend the territory, reach, and power of that bureaucracy?

Whose law will control cyberspace?  The time to address this question is now.

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Authors

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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