COLLOQUIUM
Department of Computer Science and Engineering
University of South Carolina
 
Domestic and International Aspects of Homeland Security Law

Bret Michael

Department of Computer Science 
Naval Postgraduate School

Tom Wingfield

Potomac Institute for Policy Studies

Date: March 29, 2004 (Monday)
Time: 2:00-4:00PM
Place: Law School Auditorium

Abstract

The law governing cyber intrusions is inextricably bound to the
technology for implementing it.  Recent advances in the development of
decoys, honeypots, and related concepts have raised a host of legal
issues, but have also provided new opportunities for technologists and
lawyers, working together, to expand the breadth and effectiveness of
defensive actions. The law, while complex in detail, is based on
general principles which should be familiar to technologists
responsible for protecting systems of critical importance.

One such concept is that of categorical legal identity, the minimum
identification necessary to react to an intruder with the widest
possible range of lawful options. Evidence gathering, intelligence
collection, or military hack-back are each conducted under their own
legal regimes, and choosing the proper one is the first task of the
cyber lawyer. An intruder's true identity may never be known, but
his categorical legal identity, the minimum information necessary to
treat him as a terrorist, or a criminal, or a soldier, or a spy, or a
script kiddy, may be defined in advance and uncovered rapidly in the
course of an intrusion. This will allow for an immediate, appropriate,
and lawful response.

Distinguishing uses of force under international law from other
activities (employing the Schmitt analysis), following the four
fundamental legal principles of armed conflict (in the cyber or
kinetic world) of cyberspace, and designing response systems which
optimize the human and cyber elements of a system (a la THEMIS) are
immediate priorities for academics and practitioners.