Seeing and Connecting the Dots: Legal Challenges to Countering Foreign Cyberattacks Launched from Within U.S. Domestic Cyberspace

Date

2022

Journal Title

Journal ISSN

Volume Title

Publisher

North Carolina Journal of Law and Technology

Abstract

Last year, General Nakasone, Commanding General of Cyber Command, testified to Congress that the foreign adversaries who conducted the SolarWinds hack utilized U.S. domestic cyberspace (consisting of leased Amazon Web Services cloud servers). They did so in order to evade Cyber Command detection due to legal restrictions on Cyber Command operations in U.S. cyberspace. In the words of General Nakasone, our adversaries “exploit[ed] a gap.” As a result, he stated “It’s not that we can’t connect the dots. We can’t see all the dots.” This tactic and potential methods of addressing this gap raise serious concerns, from the perspective of the 4th Amendment, FISA and the Executive Powers. This article examines each of these three legal lenses and their intersections as applied to this new tactic and concludes with considerations for lawmakers to address in attempting to resolve this challenge.

Description

Keywords

Cyber Attack, cyber law, FISA, 4th Amendment, National Security, Executive Powers

Citation

Visger, Mark, Seeing and Connecting the Dots: Legal Challenges to Countering Foreign Cyberattacks Launched from Within U.S. Domestic Cyberspace (October 27, 2022). North Carolina Journal of Law and Technology, Vol. 24, No. 1, 2022, Available at SSRN: https://ssrn.com/abstract=4260443

DOI