The Confused Role of Lawyers in Modern Cyberwarfare - Technologist
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The Confused Role of Lawyers in Modern Cyberwarfare

The final chapter in Sun Tzu's Art of War is dedicated to emphasizing the critical role of the spy in warfare and the sage underscores the recurring thread throughout the work of the importance of information. With regards to spies, no one "should be more liberally rewarded. In no other business should greater secrecy be preserved."

The role of the physical battlefield is playing a small and smaller part in the theatre of war; and cyberwarfare and electronic networks increasingly so. Hackers are now the foot soldiers and generals of yesteryear -- and also the spies.

Information Gatherer: The Hacker

Armed conflict is still something that afflicts the world, but its role is significantly diminished. Government and company secrets which had previously been stored exclusively on paper are now accessible to skilled hackers across the planet. Most of these hackers either flout laws regulating the unauthorized intrusion others' networks, don't care about the laws, or may even be unaware of them.

Idealistic Bureaucrat or Vanguard to the American Way?

The role of the lawyer has been formally debated before. In 2012, D.C. lawyer Stewart A. Baker and J.A.G. lawyer Charles J. Dunlap crossed swords over a lawyer's role in Cyberwarfare.

Mr. Baker's view was pragmatic and grim. First, he said, "the hackers will get through." Meanwhile, lawyers are tying themselves in knots over the legal ramifications and setting up roadblocks in front of agencies. The result of wanting to do the right thing, he suggested, meant that the "law of war" ironically enabled the enemy and only elevated the costs of war in the long run. And, he points out, even sovereign states like China and Russia abuse America's penchant for following rules by ignoring international law which largely relies on good faith and fair dealing.

Mr. Dunlap's response is respectful of Baker's views but dismisses the idea that America's grounded legal framework as to cyberwarfare has in anyway weakened its position in the world. Besides, he cautions, Baker's view would lead to the equivalent of cyber-anarchy. And who wants that?

Too Complicated to Discuss

The complexities that underlie cybersecurity are so intricate and complex and mathematical that the grand grand majority of lawyers are unequipped to discuss the matter in an informed and competent manner. So, lawyers do what lawyers do -- they make analogies.

But analogies are effective as communication tools simply because they tend to simplify and generalize a complex idea into a much simpler one. It is all well and good for lawyers to talk about ideals of cybersecurity, but many of us simply lack the basic wherewithal to understand where even to begin.

Blind Leading the Blind -- and Sighted?

It's a testament to the power lawyers (and politicians) have over the legal cogworks to discuss the goings-on of a world most are ill equipped to discuss and cannot understand.

Or at least some. A number of lawyers are also computer scientists, programmers, hardware engineers -- hackers. Although there is no formal certification one can yet earn recognizing expertise in the field, these are the lawyers the community ought to be turning to for information and guidance when discussing cyberwarfare -- in any of its respects. Becoming skilled in any one of these fields requires years of experience and understanding. Most lawyers lack this and are therefore not equipped to discuss the topic. The best that can be done is response to a company attack.

Whatever the role the lawyer has in cyberwarfare -- whether it be strategist or policy-maker -- it is probably more enigmatic and ill-defined than any other individual's role in this war. Except for a few specialized attorneys who possess the knowledge to understand the cyberwarfare debate, most of us play the same part of the rest of the general public: bewildered bystander.

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