Cyberwar and unmanned aerial vehicles: using new technologies, from espionage to action.

AuthorFeil, Jessica A.
PositionSymposium: Presidential Power and Foreign Affairs

Abstract

Every country on the planet is constantly on the lookout for new strategies that will protect national security. The quest for new tools is as old as warfare itself. Hundreds of years ago, cannons were the height of technological development. Then improved guns, tanks, ships, and airplanes carrying missiles. Now the tools of national security seem to come straight from science fiction. American military and civilian national security agencies are frontrunners in developing cybertools that will help keep soldiers and operatives safe and provide a tactical advantage. These cyberweapons have been in development for decades. Some policymakers and academics call for new regulation or even prohibition of cyberweapons, both domestically and internationally. Such regulation would be short-sighted and reactionary. Cyberweapons offer significant range of utility. Properly written computer code ensures targets and goals are met accurately. New technologies offer precision unknown in previous weaponry. Cyberweapons are not the only new technology generating concern. Unmanned aerial vehicles are similarly critiqued. The American government has provided more expansive legal justifications .for drone campaigns abroad. The public information available about drone campaigns sheds light on how cyberweapons will fit into the twenty-first century national security universe.

CONTENTS I. INTRODUCTION II. BACKGROUND A. The Explosion of Unmanned Technologies at the Pentagon B. The Growth of Information Operations and Computer Networks as Defense Strategies C. The Jus in Bello and Jus ad Bellum Distinction III. SURVEILLANCE AND INFORMATION GATHERING A. Flying Spies B. Desk Jockey Spies C. Cooperation Among States in Espionage Efforts IV. CYBERWAR AND UAV MISSIONS AMOUNTING TO FORCE A. In Conjunction with a Traditional Armed Attack B. As a Precursor to Armed Attack V. CYBERATTACKS AS AN INTERFERENCE TACTIC. A. Cyberwar as a Non-Covert Use of Force Not Amounting to Armed Attack B. Cyberwar in Covert Operations VI. CONCLUSION "But the fact of the matter is that cyber war is like Carl Sandburg's fog. It comes in on little cat feet, and it's hardly noticed. That's its greatest potential." (1)

--John Arquilla

  1. INTRODUCTION

    In 2010, the computer worm Stuxnet entered geopolitics by striking Iranian nuclear facilities. (2) Stuxnet caused critical uranium enrichment centrifuges to spin too quickly and break, all while reporting no errors to the monitoring system. (3) While this alone did not stop the Iranian nuclear weapon development program, it set it back at least a few months. (4) A year later, Stuxnet spawned Duqu, (5) a Trojan (6) bearing the same hallmarks of the Stuxnet code. (7) The United States and Israel eventually admitted to developing and launching Stuxnet. (8) In 2012, a computer security company identified Flame, which the United States and Israel also developed and launched prior to Stuxnet. (9) Flame infiltrated computers, spying on computer files and user actions, and laid the foundation for the later Stuxnet attack. (10) Two more computer viruses, Mahdi and Gauss, are currently spying on computers throughout the Middle East, including Ira. (11)

    A few years earlier, in 2008, a distributed denial of service attack (DDoS) struck and incapacitated the government website of Georgia. (12) The DDoS attack preceded Russia's armed invasion of Georgia. (13) Without government websites, communication was impossible, providing Russia a significant tactical advantage. (14) A year earlier, a DDoS attack, again originating in Russia, crippled the internet infrastructure of Estonia. (15) Estonia has a 97% high-speed internet penetration rate, so a disruption of access to web-based services was disastrous. (16) In both cases, the Russian government denied responsibility. (17)

    These attacks are just some of the examples of the more successful and notorious cyber campaigns. There are countless cyberattacks around the globe everyday; (18) the most sophisticated computer networks in the world are vulnerable. The U.S. Department of Defense (DoD) fends off thousands of cyberattacks on a daily basis. (19) Despite the frequency of cyberattacks, there is no consensus as to when a cyberattack becomes cyberwar. (20) Cyberwar is at the forefront of national security, making the need for a governing legal framework more urgent than ever. (21)

    The newly developing legal framework for unmanned aerial vehicles (UAVs) can and should guide a framework for cyberwar. Despite vociferous criticism, (22) UAVs are fast becoming a fixture in the U.S. national security system. (23) The Obama Administration has gone to great lengths to justify the use of UAVs under domestic and international law. (24) The United States' legal framework for UAVs should guide the development of the legal framework for cyberwar.

    Part II of this Note details the U.S. military's and national security agencies' development and adoption of drones and cyberweapons. A foundation in the myriad uses and development of these tools is helpful to understand the nuances of the relevant legal regimes. This section also provides a brief foundation in the different legal obligations between jus in bello and jus ad bellum scenarios. Part III establishes the legality of UAV espionage and why cyber espionage is similarly acceptable. Part IV finds the use of these new tools in military armed attack is acceptable, as long as the armed attack is otherwise lawful. Part V explores the area "in between" espionage and force. It evaluates the legal justifications for the use of UAVs in covert operations and extends this legal framework to cyberwar. In addition, it considers how a state might use cyberwar as a tool of coercion. Finally, Part VI concludes that cyberwar, like UAVs, is and should be part of the current military and clandestine playbook.

    There are some limitations worth mentioning. The information for this Note is limited to public sources. Further, the debate surrounding the legality of international UAV missions is far from settled. (25) In addition, the current use of UAVs is predominately against non-state actors. (26) In contrast, cyberwar is applicable and has been applied against both states and non-state actors. (27) Finally, this Note focuses solely on cyberwar and does not cover issues of cybercrime or cyberterrorism.

  2. BACKGROUND

    Counterterrorism and national security expert and former White House adviser Richard Clarke defines cyberwar as "actions by a nation-state to penetrate another nation's computem or networks for the purposes of causing damage or disruption." (28) Clarke's definition implies cyberwar can target either computer networks or traditional infrastructure targets reached via computer networks. Although cyberwar still lacks a single, agreed-upon definition, (29) Clarke's definition is representative and a useful starting point for the development of a legal framework for cyberwar.

    An understanding of the adoption of cyberwar and UAV technologies by the United States is informative to the applicable legal framework. The use of UAVs and cyberwar should be divided in two ways. First, these tools are subject to different laws depending on whether the state is engaged in active conflict or not. Second, these tools can be regulated based on the intended use, whether for surveillance, force, or interference tactics.

    1. The Explosion of Unmanned Technologies at the Pentagon

      The first tests of unmanned vehicles occurred during World War I (30) and UAVs emerged as reconnaissance tools during the Vietnam War. (31) The first UAVs used as weapons were guided bombs, which gave way to larger UAVs that deliver missiles to targets. (32) In the first Persian Gulf War, the U.S. military used a few unmanned tanks and a single UAV. (33) Since then, technology has developed rapidly and UAVs have come to the forefront of military strategy. (34) Today the military has over 7,000 UAVs--totaling one third of the air fleet--and has requested $5 billion for further support of the UAV program from Congress. (35) The Central Intelligence Agency (CIA) does not disclose how many UAVs are in its arsenal. (36)

      UAVs are a growing industry because of the relative low cost in both their development and operation. (37) UAVs also reduce casualties among American forces and collateral damage because of their greater accuracy and precision. (38) The military is exploring other uses for UAVs, such as refueling, air combat, search and rescue, and resupply. (39) The current UAV fleet features vehicles that "range from the size of an insect to that of a commercial airliner." (40) Larger UAVs are able to reach greater altitude, carry larger weapons, and have better targeting precision. (41) UAVs are currently used for reconnaissance, surveillance, and combined target acquisition and precision strikes. (42) The features and uses of UAVs mirror that of cyberweapons; these parallels elucidate how cyberwar fits in the national security paradigm.

    2. The Growth of Information Operations and Computer Networks as Defense Strategies

      Control of information for political and strategic gain is not new. Manipulation of computer networks offers a new way to achieve such gain. (43) Individuals, companies, and governments can manipulate computer networks to spread propaganda, collect classified information, or shut down major infrastructure installations. (44) There are many methods of manipulation of computer networks. Information operations (IO) is a modern concept of disrupting an adversary's information system while defending one's own system. (45) IO becomes information warfare (IW) when such actions are undertaken during active hostilities. (46)

      IO and IW are expansive terms (47) and other very broad terms are used in the same context or with the same meaning. For example, Professor Matthew C. Waxman defines cyberattacks as "efforts to alter, disrupt, degrade or destroy computer systems or networks and...

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