If hacktivists cause death, they may be liable for physical counterattacks

The North Atlantic Treaty Organization's (NATO) Cooperative Cyber Defence Centre of Excellence (CCDCOE) has published [PDF] a guideline of rules on how to respond to cyberaggression against the government.  Among the intriguing possibilities of the guide -- Tallinn Manual on the International Law Applicable to Cyber Warfare-- is that it suggests that the U.S. and its European allies respond to cyberaggression from domestic hackers, with counterattacks.

I. NATO Cyberwar Manual Deals With Tough Issue of Civilian Attackers

The manual was written over the course of three years by a team of 20 international warfare experts and drew from a variety of historic non-digital warfare conduct guidelines, including the 1868 St. Petersburg Declaration and the 1949 Geneva Convention.

It suggests that "hacktivists" can be considered digital terrorists, and can be countered with digital force -- or in extreme cases (such as attacks on hospitals or nuclear plants) -- even physical force.

Gibson Neuromancer
Cyberwar is upon us. [Image Source: Interplay (cover art for Neuromancer game)]

The rulebook was unveiled at the think-tank Chatham House in London, UK.  It contains 95 "black letter rules", spread over 302 pages of text.  Colonel Kirby Abbott (Canada, NATO) remarked, "[This document] is the most important document in the law of cyber-warfare. It will be highly useful."

Rule 22 is among the most important provisions, as it echoes previous cyberwarfare guidelines from the Pentagon, in stating that cyber-attacks alone can be considered acts of war.  States the manual:

An international armed conflict exists whenever there are hostilities, which may include or be limited to cyber operations occurring between two states or more.
To date, no international armed conflict has been publicly characterised as having been solely precipitated in cyberspace. Nevertheless, the international group of experts unanimously concluded that cyber operations alone might have the potential to cross the threshold of international armed conflict.

NATO meeting
NATO has agreed to a series of cyberwarfare guidelines.

Starting with Rule 14, the concept of proportionality is often mentioned in the document.  The document suggests that counterattacks on civilians are arguably allowable, although general attacks on civilian "objects" (data) are generally forbidden.  The proportionality rule suggests that if hacktivist attacks cause death or serious harm, a physical response  (e.g. a drone deaths strike) may be acceptable.

II. Counterattacks on Anonymous?

The rules raise a number of interesting scenarios.

In recent years Anonymous and other "hacktivist" groups have oft defaced the U.S. government webpagesscooped sensitive government database data via exploits, hit government domains with distributed denial of service attacks, infiltrated systems, and conducted similar attacks on government contractors as well.

The glossary of the manual defines a "hacktivist" as:

A private citizen ho on his or her own initiative engages in hacking for, inter alia, ideological, political, religious or patriotic reasons.

Rule 35, in particular defines rules related to attacks by civilians.  Its third and seventh subsections read:

An act of direct participation in hostilities by civilians renders them liable to be attacked, by cyber or other lawful means.
An act of direct participation in hostilities by civilians renders them liable to be attacked, by cyber or other lawful means... An act of direct participation in hostilities by civilians renders them liable to be attacked, by cyber or other lawful means.

In other words, the NATO members agreed that civilians open themselves up to counterattacks if they attack NATO member-state governments.  However, not all members agreed that this opens up those citizens for attacks in the long-term after the immediate threat passed.

Anonymous's members may face dire consequences if their attacks go too far.
[Image Source: Jason Mick/DailyTech]

As none of these attacks caused "significant" infrastructure damage or resulted in death, it seems that the government -- under the new rules -- would only be able to use digital counterattacks.  However, the government could potentially use the rules as a justification to try to take out social media tools -- YouTube channels or Twitter accounts, for example -- of Anonymous.

If future attacks resulted in death (say an attack on a utility leading to a power outage that killed patients), the responsible civilians could face physical attacks -- potentially even the kind of drone death strikes that President Obama's administration has pushed to make legal for use on U.S. citizens on U.S. soil.

III. U.S. May be Allowed to Counter-Cyber-Attack China

Then there's the issue of China, which the U.S. government has increasingly accused of sweeping government-endorsed hacking and intellectual property theft. President Obama recently threatened economic "consequences" if the hacking continues.  

China hackers
China claims the U.S. is the real cyberaggressor. [Image Source: Asia Society]

Rule Seven states:

[If an attack originates from a government network] it is not sufficient evidence for attributing the operation to that state but is an indication that the state in question is associated with the operation.

This could be significant, as some attacks have reportedly been traced back to Chinese military networks.

The new guidelines make it clear that the U.S. Department of Defense's (DOD) Cyber Command (USCYBERCOM) could also respond (legally) with counterattacks, as the guidelines state that cyberattacks on hostile foreign governments are valid if carried out in "self-defense".

IV. Was Stuxnet Legal?

Lastly, the guidelines revive questions about the legality of the U.S. and Israel's "preemptive strike" on Iran's nuclear capabilities with Stuxnet.  If the Pentagon's rules, and now NATO's rules call cyberattacks an act of war, the question is whether President George W. Bush (R) and President Barack Obama were within the law in ordering the Stuxnet operation.

Iran nuclear facilities
Stuxnet mapped Iranian networks and damaged nuclear centrifuges.  President Bush and President Obama authorized these attacks. [Image Source: CBS]

Article 1, Section 8 of the U.S. Constitution, the foundation of the U.S. government, clearly grants Congress the power:

U.S. Constitution
[Image Source: EL Civics]

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

Hence traditionally the President was required to receive Congressional permission to go to war.

The new document is simply a suggested guideline for NATO members, but is not consider rule of law.  It has no power to enforce its provisions, although member states are encouraged to do so.  It should be noted that the document is rather ambiguous in its language at times, and at others makes it clear that the participating member states did not agree on a number of issues.

Sources: NATO [as e-book], [as PDF]

"I f***ing cannot play Halo 2 multiplayer. I cannot do it." -- Bungie Technical Lead Chris Butcher

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