Congressional Report on Cybersecurity Fails to Deliver

Cyberwarfare and Cyberterrorism

While the Congressional Research Service usually provides exceptional reports in the area of cybersecurity (see here, and here), the recent report titled Cyberwarfare and Cyberterrorism: In Brief falls short of the usual level of expertise. The report is full of factual information spanning various topics in cybersecurity, but the facts are thrown together in sections without any clear order or meaning. After reading the summary on the first page, readers are led to believe that the purpose of the report is to set out the legal obstacles standing in the way of clear definitions in cybersecurity. Instead, the report merely lists the various international treaties, processes, conventions and laws relating to cybersecurity. Despite these issues, I will do my best to recap the report below.

Threat Actors and Harms Caused

There are no generally accepted definitions for the various terms frequently used to discuss cybersecurity issues. The report provides some general definitions that have been used for the following terms: cyberterrorists, cyberspies, cyberthieves, cyberwarriors, cyberactivists. For each definition, the authors provide an explanation of the type of harm typically connected to that group of actors. However, the authors also note that the threats posed by these actors and the types of attacks they can pursue are not mutually exclusive.

According to the report, there is no clear criteria for determining whether a cyberattack is criminal, an act of hactivism, terrorism, or a nation-state’s use of force equivalent to an armed attack. As a result, when it comes to defining “cyberwar,” experts are divided over whether to focus on the ends achieved or the means used. The United States recognizes that cyberattacks without kinetic effects are also an element of armed conflict under certain circumstances.

Rules of the Road and Norm-Building in Cyberspace

This section is where the report starts to become disorganized. It starts with a description of two major international processes geared toward developing international expert consensus among international cyber authorities: The Tallinn Manual and Article 5 of the North Atlantic Treaty. The authors then turn to the issues created by the lack of a clear definition of what constitutes an “armed conflict.” Next, the authors provide a brief description of the Council of Europe Convention on Cybercrime, the United Nations General Assembly Resolutions affecting cyber relations, the International Telecommunications Regulations affecting cyber relations, followed by a catch-all paragraph on other international law related to cybersecurity.

The report notes that like “cyberwarfare,” there is no consensus definition of what constitutes “cyberterrorism.” The authors provide descriptions of two laws which provide some clarity on the definition: the USA PATRIOT ACT (18 U.S.C. 2332b) and the Computer Fraud and Abuse Act (18 U.S.C. 1030a-c. According to the report, the issue is that “these provisions are also criminal statutes and generally refer to individuals or organizations rather than state actors.”

Use of the Military: Offensive Cyberspace Operations

In this section, the authors list the various US laws which could potentially be used to authorize offensive cyberspace operations by the military. After listing and defining these laws, one would expect the authors to analyze the ways in which these laws could be applied to offensive cyberspace operations or at least to point out the gaps and ambiguities preventing reliance on these laws for offensive cyberspace operations. However, the authors fail to provide any such analysis and instead conclude this section with a paragraph describing press speculation on a Pentagon plan for Cyber Mission Forces under the Cyber Command.

Conclusion

After reading the final paragraph of the report, I flipped the page over multiple times expecting to find a conclusion section typical in most of the cyber reports from the Congressional Research Service. I was hoping that the conclusion section would provide clarity on the many disconnected facts provided throughout the report. There was no conclusion.  Lacking any sort of conclusion, it appears that the authors themselves were unsure of how to tie together the grab bag of information they provided on this very important topic.

To read the full report, click here: Cyberwarfare and Cyberterrorism: In Brief.

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Authors

Untitled Document
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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