Emerging Norms for Cyber Warfare

Prof. George Lucas (U.S. Naval Academy)

Abstract: Cyber conflict appears to confront nations and industries with a new form of unrestricted, relentless, and indiscriminate conflict, with attacks on military, industrial, and civilian infrastructure and objects that violate conventional norms of war. Much of this is due to the fact that the conflict represents both criminal theft and vandalism, coupled with sophisticated espionage and intelligence operations, neither category of which has heretofore been considered as, nor risen to the level of, the kind of use of force and “armed conflict” that is governed by existing legal and moral regimes. As a result, cyber conflict has been portrayed as a kind of war without rules, and as a form of warfare that obviates existing norms and calls for an entirely new legal regime.

While recognizing these challenges, I will nonetheless argue that (1) there are, or could be considered to be, a set of norms governing cyber conflict practices (apart from criminal activities) that are presently emerging from the engagement in these practices by adversaries; and (2) that the set of emergent norms closely resemble the considerations of conventional armed conflict, sufficiently so as to permit a reasonable extrapolation of current moral and legal concerns to the new cyber domain. I will examine in conclusion the recent controversy regarding preventive cyber conflict and privacy, following in the wake of whistle-blower Edward Snowden's revelations concerning the U.S. National Security Agency and its collaboration with the intelligence services of several allied nations in an effort to combat terrorism.