Endnotes

¹ Cf. Alvin Toffler & Heidi Toffler, War and Anti-War 2 (1993) ("the way we make war reflects the way we make wealth").

² U.S. Department of the Air Force, Cornerstones of Information Warfare (1995) at 2. For other definitions of information warfare see, for example, Richard W. Aldrich, The International Legal Implications of Information Warfare, U.S. Air Force Institute for National Security Studies Occasional Paper 9, (April, 1996) at 3-5. The Air Force’s definition is particularly suitable for this report, which attempts a broad examination of potential legal issues.

³ See, e.g., Douglas Waller, Onward Cyber Soldiers, Time, Aug. 21, 1995, at 37.

⁴ E.g., Charles J. Dunlap, How We Lost the High-Tech War of 2007, The Weekly Standard, Jan. 29, 1996 at 22.

⁵ John Arquilla & David Ronfeldt, The Advent of Netwar (1996)

⁶ Roger C. Molander, Andrew S. Riddile, Peter A. Wilson, Strategic Information Warfare: A New Face of War 64 (1996). One observer has suggested that in the late 1960s, U.S. agents altered AT&T telephone switching equipment that was exported to Poland, so that the U.S. could shut down land based telecommunications on command. Winn Schwartau, Export Control as a Proactive Defensive Information Warfare Mechanism, available at http://www.infowar.com/mil_c4i/export.html.ssi.

⁷ Molander, supra note 6, at 64.

⁸ Id., at 66.

⁹ Neil Munro, Pentagon Developing Cyberspace Weapons, Washington Technology, June 22, 1995.

¹⁰ Peter Grier, Information Warfare, Air Force Magazine (March 1995) 34, 35.

¹¹ Barry Collin, Terrorism and the New World Disorder, 11th International Symposium on Criminal Justice Issues, Office of International Criminal Justice, The University of Illinois at Chicago, 1996.

¹² In September of 1996, anonymous e-mail messages overwhelmed network routers in the U.S. Northwest, disrupting regular e-mail delivery for almost six hours. Seattle Times, Oct. 11, 1996, at A1, Edupage, October 16, 1996.

¹³ Molander, supra note 6, at 74

¹⁴ In 1988, a worm created by Robert Morris, a Cornell University graduate student, spread over the Internet to thousands of computers, including some military and intelligence systems, paralyzing over 6,000 computers. Steve Lohr, Ready, Aim, Zap, N.Y. Times, Sept. 30, 1996, at D1, D2.

¹⁵ Sean P. Kanuck, Recent Development, Information Warfare: New Challenges for Public International Law, 37 Harv. Int’l. L.J. 272, 289 (1996).

¹⁶ See, e.g., Tom Clancy, Debt of Honor (1994).

¹⁷ Vienna Convention on the Law of Treaties(1969), UN doc. A/CONF.39/27. A third source of international law is jus cogens, peremptory norms that have the character of supreme law and which cannot be modified by treaty or ordinary customary law. Id., Art. 53, 64. Louis Henkin, International Law: Politics and Values 38-39 (1995). Although no satisfactory way to identify jus cogens exists, some have argued that it prohibits (although perhaps not effectively) genocide, slavery and the slave trade, and apartheid.

¹⁸ Henkin, supra note 17, at 28.

¹⁹ Id., at 29-38.

²⁰ Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart J., concurring).

²¹ E.g., Frank H. Foster & Robert L. Shook, Patents, Copyrights, and Trademarks (2d ed. 1993) 182.

²² Jonathan A. Charney, May The President Violate Customary International Law?: The Power of the Executive Branch of the United States Government to violate Customary International Law, 80 Am. J. Int’l L. 913, 914 (1986).

²³ Macbeth, Act V.

²⁴ Mark W. Janis, An Introduction to International Law 1 (2d ed. 1993)

²⁵ See Parts II.C., III. E.2.a , infra (Discussions of "force" and "armed attack").

²⁶ An "infoblockade" requiring the use, or denial, of third countries’ assets or territory might require those countries’ consent, or might violate their borders. See Part II.B.1, infra.

²⁷ Although a naval blockade would generally not violate a nation’s borders, it would constitute a physical disruption of a nation’s sovereign rights to freedom of the seas, which could be considered analogous to the border intrusion.

²⁸ See Part II. B. 2., infra.

²⁹ Although the U.S. Constitution only explicitly makes treaties part of U.S. law, the U.S. Supreme Court appears to have included customary law within the law of the land. U.S. Const., Art. VI; The Paquete Habana, 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction . . "). Henkin, supra note 17, at 68-71

³⁰ This report does not address issues arising under U.S. domestic law, or the domestic laws of other countries. Such issues would include the source and allocation of authority for defense and offensive measures during both war and peace, the allocation of liability for protection of critical infrastructures, and the potential conflict between individual liberties (including freedom of expression under the First Amendment to the U.S. Constitution) and national security. For a discussion of the application of some U.S. domestic law to information warfare activities, see Science Applications International Corporations, Information Warfare: Legal, Regulatory, Policy and Organizational Considerations for Assurance, (July 4, 1995).

³¹ See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. ___ 21 (July 8, 1996) (hereinafter, "Advisory Opinion").

³² Advisory Opinion, 86.

³³ Although founded well before the establishment of the United Nations, the ITU is now part of the UN system.

³⁴ 1 Gerd D. Wallenstein, International Telecommunications Agreements 67-69 (1986).

³⁵ Harold M. White, Jr. & Rita Lauria, The Impact of New Communication Technologies on International Telecommunication Law and Policy: Cyberspace and the Restructuring of the International Telecommunication Union, 32 Cal. W.L. Rev. 1 (1995).

³⁶ George A. Codding, The International Telecommunication Union 84-87 (1952). Even the Titanic disaster might have been avoided, or more of its passengers rescued, but for Marconi employees who refused communications from operators using non-Marconi equipment. White & Lauria, supra note 35, at 6.

³⁷ International Telecommunications Convention (hereinafter "ITC"), Art. 35.

³⁸ Sara Anne Hook, Comment, Allocation of the Radio Spectrum: Is the Sky the Limit? 3 Ind. Int'l & Comp. L.R. 319, 325 (1993).

³⁹ ITC, Art. 38.

⁴⁰ Radio Regs Art. 18, Sec. 2(c). 4 Umberto Leanza, The Future of International Telecommunications (1992).

⁴¹ Radio Regs Art. 18, Howard A. Bender, Note, The Case of the Sarah: A Testing Ground for the Regulation of Radio Piracy in the United States, 12 Fordham Int’l L.J. 67, 69 (1988). This prohibition does not apply to the truth or falsehood of the underlying substance of a transmission but to the identification of its transmitter and frequency.

⁴² ITC Art. 22 sec. 1.

⁴³ ITC Art. 19.

⁴⁴ Radio Rules (1923).

⁴⁵ 1 Wallenstein, supra note 34, at 30-31.

⁴⁶ Audrey L. Allison, Meeting the Challenges of Change: The Reform of the International Telecommunication Union, 45 Fed. Comm. L.J., 491, 514 (1993); Hook, supra note 38, at 328; Christian A. Herter, The Electromagnetic Spectrum: A Critical Natural Resource, 25 Nat. Resources J. 651, 658 (1985).

⁴⁷ Kanuck, supra note 15, at 289 n.73; Stephen Gorove, Developments in Space Law 49 (1991) ("While states generally abide by ITU resolutions, they are not legal bound by them." See Part III.E.2.a., infra (discussion of "armed attack").

⁴⁸ Art. IV.

⁴⁹ Art. 3(3)

⁵⁰ Art. 3(1); Glenn Harlan Reynolds, International Space Law: Into the Twenty-First Century, Vand. J. Transnat’l L. 225, 230 (1992). The United States, among other spacefaring powers, has not ratified the Moon Treaty.

⁵¹ 10 I.L.M 909.

⁵² 31 U.S.T. 1, 1143 U.N.T.S. 105.

⁵³ The use of nuclear weapons in space to generate electromagnetic pulses (EMP) would seem to be forbidden, however.

⁵⁴ See Colleen Driscoll Sullivan, The Prevention of an Arms Race in Outer Space: An Emerging Principle of International Law, 4 Temp. Int’l & Comp. L.J. 211, 230-34 (1990).

⁵⁵ Reynolds, supra note 50 at 241.

⁵⁶ Sullivan, supra note 54 at 213-14

⁵⁷ See, infra Part III. C., and Part III. E. 2. a. (discussions of "force" and "armed attack").

⁵⁸ See Reynolds, supra note 50, at 241 (unclear whether space-based lasers would count as "weapons of mass destruction"). See also John M. Orr, Comment, The Treaty on Outer Space: An Evaluation of the Arms Control Provisions, 7 Colum. J. Transnat'l L. 259 (1968).

⁵⁹ Aldrich, supra note 2, at 20.

⁶⁰ Advisory Opinion 64.

⁶¹ Kanuck, supra note 15, at 276; Abram N. Shulsky, Silent Warfare: Understanding the World of Intelligence 103 (2d ed. 1993)

⁶² Reynolds, supra note 50 at 239-41; Mark Orlove, Spaced Out: The Third World Looks for a Way in to Outer Space, 4 Conn. J. Int'l L. L. 597, 629-32 (1989).

⁶³ A 1923 U.S.-British Claims Arbitration Tribunal granted no compensation to the British cable company whose Manila-Hong Kong cable the U.S. had cut during the Spanish-American War. Ranier Lagoni, Cables, Submarine, 1 Max Planck Institute for Comparative Public Law and International Law, Encyclopedia of Public International Law 516, 517-19 (1992).

⁶⁴ Id.

⁶⁵ Lagoni, supra note 63, at 517

⁶⁶ E.g., Protocol Additional to the Geneva Conventions of 12 August 1949; and Relating to the Protection of Victims of International Armed Conflicts (1977) (hereinafter Additional Protocol I). Although the United States has not ratified the Additional Protocol, the protocol reflects much customary and conventional international law. Advisory Opinion at 84.

⁶⁷ Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1907) (hereinafter "Hague V"), Art. 1.

⁶⁸ See United Nations Manual on the Prevention and Control of Computer-Related Crime, 261-264 (1993) (hereinafter "UN Manual").

⁶⁹ See Part III. C., infra.

⁷⁰ Hague V, Art. 2, 5. Similarly, under the unratified 1925 Hague Air Warfare Rules neutrals were obliged to prevent the entry of belligerent military aircraft into their airspace, compel their landing, and prevent their departure .

⁷¹ Hague V, Art. 3, 5.

⁷² Hague V, Art. 8.

⁷³ Hague V, 1923 Radio Rules.

⁷⁴ 1 Howard S. Levie, The Code of Armed Conflict 123 (1986).

⁷⁵ Such law includes the Geneva Convention of 1949, The Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereinafter "Hague IV"), the Genocide Convention, and the Nuremberg Charter. Advisory Opinion 81.

⁷⁶ Advisory Opinion 77

⁷⁷ Advisory Opinion 86

⁷⁸ Judith Gail Gardam, Proportionality and Force in International Law, 87 Am. J. Int’l L. 391, 396 (1993).

⁷⁹ Hague IV, Art. 25

⁸⁰ Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (1993) (hereinafter, "Yugoslavia Tribunal").

⁸¹ No defendants were convicted of such bombing at Nuremberg. Given the extent of the Allied bombing of Germany and Japan, such convictions might have seemed hypocritical; this omission, though, may have undermined the viability of this principle of international law. See Howard S. Levie, Terrorism in War: The Law of War Crimes (1992). Nevertheless, the Nuremberg tribunal reaffirmed that attacks directed at civilians as civilians was illegal. George Bunn, US Law of Nuclear Weapons, 32 Naval War College Rev. 46, 58 (1984). The inclusion of indictments for attacks against civilians in the Charter of the Yugoslavia tribunal further attests to some measure of survival of the principle.

⁸² Additional Protocol I, 52(2).

⁸³ Advisory Opinion 78; Gardam, supra note 78, at 410.

⁸⁴ See discussion of proportionality in response to attacks, Part III. E. 2. b., infra.

⁸⁵ Gardam, supra note 78, at 391.

⁸⁶ Id., at 407-08; Committee on International Arms Control and Security Affairs & Committee on International Law, The Use of Armed Force in International Affairs: The Case of Panama, 47 Rec. Assoc. Bar City N.Y. 604, 683-84 (1992).

⁸⁷ Hague II, Hague IV, Additional Protocol I.

⁸⁸ See, e.g., Saint Petersburg Declaration of 1868 (only legitimate object of war is to weaken enemy's military forces); Nuremberg Charter (prohibition against "wanton" bombing; Hague IV, Art. 25 (prohibition against bombardment "by whatever means" of undefended towns, dwellings or buildings); Yugoslavia Tribunal.

⁸⁹ See Additional Protocol I, Art. 54(1) (starvation may not be used as tool of war).

⁹⁰ Aldrich, supra note 2 at 11.

⁹¹ James Winnefeld, Preston Niblack & Dana Johnson, A League of Airmen: U.S. Airpower in the Gulf War 205 (1994).

⁹² Eric J. Sterner, Digital Pearl Harbor, National Security in the Information Age, National Security Studies Quarterly (Summer 1996) 33, 43.

⁹³ Kanuck, supra note 15, at 284.

⁹⁴ Information Revolution Spawns "Revolution in Security Affairs," Defense Daily, June 8, 1995, at 1.

⁹⁵ See Additional Protocol I, Art. 56 (dangerous forces).

⁹⁶ Richard Szafranski, A Theory of Information Warfare: Preparing for 2020, Airpower Journal (Spring 1995).

⁹⁷ See Colonel Brenda J. Hollister, USAF, The Thomas P. Keenan, Jr. Memorial Lecture: The International Criminal Tribunal for Yugoslavia, 39 A.F. L. Rev. 37, 40 (1996) (incitement to genocide in former Yugoslavia as a war crime); J. Balzar, The Power of Africa’s Airwaves, L.A. Times (Oct. 22, 1995) A1 (relationship between hate radio and Rwandan genocide).

⁹⁸ Michael N. Schmitt, State Sponsored Assassination in International and Domestic Law, 17 Yale J. Int’l L. 609, 617 (1992).

⁹⁹ Additional Protocol I, Art. 37.

¹⁰⁰ Hague IV, Art. 23. The provision only applies to the use of enemy uniforms in combat. Trial of Skorzeny and Others, 9 W.C.R. 90, 93-94 (U.S. Zone-Germany, Gen. Mil. Gov. Ct. 1947). Although Additional Protocol I, Art. 39(2) bars the use of enemy uniforms for purposes other than attack as well, the United States, which has not ratified the Protocol, resists that provision as nonreflective of the nature of modern combat. Schmitt, supra note 90, at 636.

¹⁰¹ This example was suggested by Professor Daniel T. Kuehl of the National Defense University.

¹⁰² E.g., Reynolds, supra note 50, at, at 239; Orlove, supra note 62, at 629-32.

¹⁰³ E.g., Gary H. Anthes, New Laws Sought for Information Warfare as Technology Outpaces the Law, Computerworld, June 5, 1995, at 1.

¹⁰⁴ The leading U.S. law dictionary defines "war" as "Hostile contention by means of armed forces, carried on between nations, states, or rulers, or between citizens in the same nation or state." Black’s Law Dictionary (6th ed. 1990) 1583, citing Gitlow v. Kiely, 44 F.2d 227, 233 (S.D.N.Y. 1930).

¹⁰⁵ Clinton E. Cameron, Note, Developing a Standard for Economically Related State Economic Action, 13 Mich. J. Int’l L. 218, 219 (1991).

¹⁰⁶ Amendments of the Brazilian Delegation to the Dumbarton Oaks Proposals, Doc. 2, 617(e)(4), 3 U.N.C.I.O. Docs 251, 253-54 (1945). Part of the reason for the proposal's defeat may have been the argument that economic measures were included in Article 2(4)'s language referring to pressure in any manner "inconsistent with the purposes of the United Nations." Cameron, supra note 105 at 225.

¹⁰⁷ See Part III. E. 2 a., infra.

¹⁰⁸ G.A. Res. 3314 (XXIX) (December 14, 1974) (Hereinafter "Declaration on Aggression")

¹⁰⁹ UN Charter, Art. 39.

¹¹⁰ Declaration on Aggression., Art. 1.

¹¹¹ Id., Art. 2.

¹¹² The phrase "the use of any weapons by a state against the territory of another" could be read as applying to the non-lethal tools of information warfare. However, because the provision in which it is included addresses bombardment by the armed forces, and because "weapon," too, connotes force or violence, this clause probably would not bring all of information warfare within the concepts of "war," "force," or "aggression." See, e.g., New American Webster Dictionary (1972), at 510 (defining "weapon" as "any instrument used in fighting.")

¹¹³ Declaration on Aggression, Art. 3.

¹¹⁴ Cameron, supra note 105, at 230.

¹¹⁵ Advisory Opinion 85. See Theodor Meron, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 Am. J. Int'l L. 678 (1994).

¹¹⁶ Additional Protocol I, Art. 49(1); 1 Levie, supra note 74, at 33-34 (§ 151.2).

¹¹⁷ Note, Judicial Determination of the End of the War, 47 Colum. L. Rev. 255 (1947) (hereinafter "Judicial Determination"); 7 Moore Digest of International Law (1906) 153. See also Hijo v. U.S., 194 U.S. 315 (1904) (cessation of hostilities is not legal termination of war).

¹¹⁸ Joint Resolution of July 2, 1921, 42 Stat 105 (1921); Judicial Determination, supra note 117, at 257,

¹¹⁹ UN Charter, Preamble.

¹²⁰ Id.

¹²¹ Id., Art. I(1).

¹²² Id., Art. I(2).

¹²³ Id., Art. I(3)

¹²⁴ Id., Art. 2(3).

¹²⁵ Id., Art. 2(4).

¹²⁶ G.A. Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8082 (1970); Cameron, supra note 105, at 235.

¹²⁷ G.A. Res. 2131, 20th Sess., Supp. No. 14, at 108, UN Doc. A/6014 (1965).

¹²⁸ Cameron, supra note 105, at 235.

¹²⁹ Kanuck, supra note 15, at 290-91.

¹³⁰ See notes 17-22 supra and accompanying text.

¹³¹ Kanuck, supra note 15, at 289

¹³² The sanctions that such a country might employ to such an end might, of course, implicate its obligations under such international agreements as the General Agreement on Tariffs and Trade (GATT), and could subject the country to international sanctions in response.

¹³³ See generally, Cameron, supra note 105, at, 242-243.

¹³⁴ Wade D. David, European Diplomacy in the New Eastern Question, 1906-1909, at 104 (1940).

¹³⁵ Cameron, supra note 105, at, 242-43

¹³⁶ M. Reza Ghods, Iran in the 20th Century 187-89 (1969).

¹³⁷ Andreas F. Lowenfeld, Trade Controls for Political Ends, 313-21 (2d ed. 1983).

¹³⁸ R.R. Baxter, The Law of International Waterways 168-183 (1966); Ranier Lagoni, Canals in 1 Max Planck Institute for Comparative Public Law and International Law, Encyclopedia of Public International Law 523, 526 (1992). A canal becomes internationalized when, by treaty, declaration, or otherwise it is declared open to free access and unimpeded navigation of ships of all nations. The Panama Canal, for example, was internationalized before its construction by the Hay-Pauncefote Treaty of 1901 between the U.S. and Great Britain. This internationalization was reasserted in the treaty by which the U.S. acquired the Canal Zone from Panama in 1903. Baxter, supra note 138 at 170-71; Louis Henkin, Richard Crawford Pugh, Oscar Schachter, Hans Smit, International Law Cases and Materials (3d ed. 1993) 1263-64.

¹³⁹ The covert nature of such acts, however, makes their contribution to international law suspect, and may actually reinforce the principle that such acts are illegal.

¹⁴⁰ See discussion of "armed attack," Part III. E. 2. a., infra.

¹⁴¹ UN Charter, Art. 39.

¹⁴² Id., Art. 41-49.

¹⁴³ See, e.g., notes 3 - 16 supra and accompanying text, supra.

¹⁴⁴ See, e.g., Kevin J. Soo Hoo, Seymour E. Goodman, and Lawrence T. Greenberg, Terrorism and the Information Revolution __ Survival ___ (1997) (forthcoming).

¹⁴⁵ Caroline Osborne, a British Crown Prosecutor, has characterized those who break into computer systems as "stupid little nerds who have not yet discovered girls and beer." Brian Foran, Information Warfare: Attacks on Personal Information, 8th Annual Canadian Security Symposium: Business and Security in an Electronic World, May 2, 1996.

¹⁴⁶ Norman Menachem Feder, Note, Reading the UN Charter Connotatively: Toward a New Definition of Armed Attack, 19 N.Y.U.J. Int’l L. & Politics 393, 412 (1987).

¹⁴⁷ Mary Fackler Schiavo, "I Don't Like to Fly," Newsweek, May 20, 1996, at 27.

¹⁴⁸ Peter G. Neumann, Computer Related Risks 126-28 (1995). See also, M.E. Bowman, Is International Law Ready for the Information Age? 19 Fordham Int'l L.J. 1935, 1939-40 (1996).

¹⁴⁹ E.g., Cyber Wars, The Economist, (Jan. 13, 1996), at 77.

¹⁵⁰ Neumann, supra note 148, at 115.

¹⁵¹ Id., at 37.

¹⁵² See Stefan Geisenheyner, The Dangers Lurking in Military Software Production: Viruses, Trojan Horses and Logic Bombs, Armada Int'l, Oct.-Nov. 1989, at 22.

¹⁵³ Simson L. Garfinkel, The Manchurian Printer, The Boston Globe, Mar 5, 1995, Focus Section, at 83.

¹⁵⁴ See, e.g., Scott Sagan, The Limits of Safety (1993); Charles Perrow, Normal Accidents (1984)

¹⁵⁵ W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 Am. J. Int'l L. 83, 86 (1993).

¹⁵⁶ Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lockerbie: What Lessons for International Extradition Law? 14 Mich. J. Int’l L. 222, 248 (1993).

¹⁵⁷ Id., at 252.

¹⁵⁸ Mark W. Janis, An Introduction to International Law 1 (2d ed. 1993).

¹⁵⁹ UN Manual, 265.

¹⁶⁰ ICJ Reports 1949 at 34-35.

¹⁶¹ See International Working Group on Data Protection in Telecommunications, Data Protection on the Internet (21 May 1996), J. Information L. & Tech., Sept. 30, 1996, available at http://elj.warwick.ac.uk/elj/jilt/consult/iwgdp/1.htm#problems.

¹⁶² UN Manual, 264.

¹⁶³ U.S. Permanent Subcommittee On Investigations, Committee on Governmental Affairs, Appendix "A" to Staff Statement (June 5, 1996) at 5-6. The North Korean government might not have found persuasive the argument that under international law such an attack might not constitute.

¹⁶⁴ See Hook, supra note 38, at 327; Herter, supra note 46, at 655.

¹⁶⁵ The Vienna Concluding Document of the Committee for Security and Cooperation In Europe (CSCE) meeting in 1987, in its discussion of "Human Contacts" stated that states were obligated to ensure that radio services operating in accordance with the ITU Radio Regulations can be received within their states. Peter Malanczuk, Information and Communication, Freedom of, 2 Max Planck Institute for Comparative Public Law and International Law, Encyclopedia of Public International Law 976, 986 (1992). Nevertheless, it seems unlikely that states have renounced the ability to attempt to jam foreign broadcasts within their borders.

¹⁶⁶ U.S. General Accounting Office, Computer Attacks at Department of Defense Pose Increasing Risks, GAO/AIMD-96-84 (May 1996) 22.

¹⁶⁷ Gary H. Anthes, Info-terrorist Threat Growing, Computerworld, Jan. 30, 1995, at 1. See also Bowman, supra note 148, at 1933. Even in the physical world, a country will not be held responsible for acts conducted on its territory about which it did not know, or could not have known. Corfu Channel, I.C.J. Reports 1949, at 18.

¹⁶⁸ On anonymity see Sameer Parekh, Prospects for Remailers: Where is Anonymity Heading on the Internet, First Monday, October, 1996, available at http://www.firstmonday.dk/.

¹⁶⁹ Treaty Between the United States of America and the Swiss Confederation on Mutual Assistance in Criminal Matters, 27 U.S.T. 2019, T.I.A.S. No. 8302 (1977)

¹⁷⁰ Under the U.S. Federal Rules of Civil Procedure, letters rogatory are written communications sent by a court in which a case is pending to a court or judge in a foreign country, requesting that the testimony of a witness residing within the latter court’s jurisdiction be taken under that court’s local procedures and transmitted to the first court for use in the pending case. Fed. R. Civ. P. 28.

¹⁷¹ Interpol is an organization, headquartered in Lyon, France, supporting international cooperation and exchange of information among police in over 150 countries. Fenton Bresler, Interpol (1992).

¹⁷² Arguably, though, for purposes of general deterrence, the fact of a response, and its vigor, may be significant, regardless of whether the response is directed toward the proper culprit, especially where the public remains unaware that the actual culprits have escaped punishment. Cf. Jeremy Bentham, Principles of Penal Law, Pt. II, bk. 1, ch. 3, in J. Bentham's Works 396, 402 (J. Bowring ed. 1843) ("When a man supposes pain to be the consequence of an act, he is fed upon in such a manner as tends with a certain force, to withdraw him, as it were, from the commission of the act.") Nevertheless, and not surprisingly, knowingly or willfully attacking foreign official or unofficial targets without a substantive factual basis for such an attack would be unjustified under international law. Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v. U.S.), ICJ Reports 1986, 14, 195. Such attacks might violate U.S. law as well. See generally, John Hart Ely, The American War in Indochina, Part II: The Unconstitutionality of the War They Didn’t Tell Us About, 42 Stan. L. Rev. 1093 (1990)

¹⁷³ Vaughan Lowe, Case and Comment, Lockerbie--Changing the Rules During the Game, 5 Cambridge L.J. 408, 408-410 (1992)

¹⁷⁴ U.S. v. Rauscher, 119 U.S. 407, 411-12 (1886); Factor v. Laubenheimer, 290 U.S. 276, 287 (1933). Indeed, under U.S. law the United States may not extradite a citizen in the absence of a statute or treaty obligation. 18 U.S.C. Sec. 3194; Valentine v. U.S. ex. rel. Neidecker, 299 U.S. 5, 8-9 (1936); See also U.S. v. Alvarez-Machain, 504 U.S. 655 (1992); Barry Carter & Philip Trimble, International Law 813-14 (2d ed. 1995).

¹⁷⁵ For example, the Montreal Convention on the Suppression of Unlawful Acts Against Civil Aviation provides a basis for extradition among its signatories only for offenses related to the goal enunciated in its title.

¹⁷⁶ See, e.g., J. Storke, Introduction to International Law 193-200 (9th ed. 1984); Joyner & Rothbaum, supra note 156, at 235-36.

¹⁷⁷ The subject of jurisdiction over and in cyberspace is now the subject of great scholarly interest, e.g. David R. Johnson and David Post, Law and Borders: The Rise of Law in Cyberspace, 48 Stan. L.R. 1367 (1996); William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 Wake Forest L.R. 197 (1995); Henry H. Perritt, Jr., Computer Crimes and Torts in the Global Information Infrastructure: Intermediaries and Jurisdiction, University of Oslo, October 12, 1995 (available at http://www.law.vill.edu/chron/articles/oslo/oslo12.htm), although the topic does not yet appear to have been examined from a national security perspective.

¹⁷⁸ See The Eisler Extradition Case, 43 Am. J. Int'l L. 487 (England 1949); Henkin, Pugh, et al., supra note 138 at 1112.

¹⁷⁹ Who Stops the Hacker? KIJK (Netherlands), May 1995, at 22-25.

¹⁸⁰ Simson L. Garfinkel, FBI Uses Hackers’ Tools to Sniff Out Hacker’s Lair, S.J. Mercury News, April 8, 1996 at B1; U.S. Permanent Subcommittee On Investigations, Committee on Governmental Affairs, Appendix "A" to Staff Statement (June 5, 1996) at 7; Bob Drummond, U.S. Uses First Court-Ordered Wiretap on Computer Network, Bloomberg, March 29, 1996.

¹⁸¹ See Bowman, supra note 148, at 1941.

¹⁸² Joyner & Rothbaum, supra note 156, at 242-45

¹⁸³ Marc Weller, Crisis for the New World Order, 142 New L.J. 592 (May 1, 1992).

¹⁸⁴ Joyner & Rothbaum, supra note 156, at 248-49; Henkin, et al., at 1113; Liskofsky, The Abu Daoud Case: Law or Politics, 7 Is. Yb. H. Rtg. 66 (1977).

¹⁸⁵ Joyner & Rothbaum, supra note 156, at 249.

¹⁸⁶ In a different context, the reluctance of some developing countries to provide intellectual property protection for Western pharmaceutical companies’ products has frustrated Western countries, as the developing nations hope to benefit from technological advances without paying the profits that the leading technological nations demand.

¹⁸⁷See, e.g., A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage, in Borders in Cyberspace, (Brian Kahin and Charles Nesson, eds. 1997)

¹⁸⁸ Clifford Stoll, The Cuckoo’s Egg (1989).

¹⁸⁹ L.T. Greenberg & S.E. Goodman, Is Big Brother Hanging By His Bootstraps? 39 Comm. ACM 11, 13 (July 1996); U.S. Dept. of State, Bureau for International Narcotics and Law Enforcement Affairs, International Narcotics Control Strategy Report 496-503, 581-82 (March 1996).

¹⁹⁰ See, e.g., Robert G. Lynch, Do State and Local Tax Incentives Work? (1996); Ian Ayres, Judging Close Corporations in the Age of Statutes, 70 Wash. U.L.Q. 365 (1992)

¹⁹¹ U.S. v. Alvarez-Machain, 504 U.S. 655 (1992).

¹⁹² Henkin, supra note 17, at 258-260. After the most famous international abduction, when Israeli agents kidnapped Adolf Eichmann from Argentina and brought him to Israel for trial for his role in the Holocaust, Argentina accepted Israel's apology for violation of its sovereignty, but did not request Eichmann's return. Id.

¹⁹³ UN Charter, Art. 2(3).

¹⁹⁴ UN Charter, Art. 2(4)

¹⁹⁵ UN Charter, Art. 51.

¹⁹⁶ ICJ Reports 1986, at 195, 232. Although the U.S. did not recognize the authority of the ICJ to adjudicate the case, and Nicaragua has dropped its complaint, the Court's analysis on this point, irrespective of the actual facts of the case, seems consistent with international law.

¹⁹⁷ ICJ Reports 1986, at 195

¹⁹⁸ Feder, supra note 146, at 410-416

¹⁹⁹ The criminal code of West Virginia, for example, sets out a virtual list of the traditional elements of burglary: If any person shall, 1) in the nighttime, 2(a)) break and enter, or enter without breaking, or shall, 2(b)) in the daytime, break and enter, 3) the dwelling house, or an outhouse adjoining thereto or occupied therewith, 4) of another, 5) with intent to commit a crime therein, he shall be deemed guilty of burglary. W. Va. Code § 61-3-11 (1996).

²⁰⁰ Restatement 3d, The Foreign Relations Law of the United States (1987) sec. 905. See, e.g., George Bunn, Expanding Nuclear Options: Is the U.S. Negating its Non-Use Pledges? Arms Control Today, May/June 1996, at 7, 9.

²⁰¹ The humanitarian consideration is discussed in Part II. B. 2., supra .

²⁰² See Part II. C. 1., supra.

²⁰³ The comparability of electronic intrusion to physical intrusion is not unquestionable, though, and it is not inappropriate to use publicly available neutral communications facilities for belligerent communications. See Part II. B. 1., supra.

²⁰⁴ Of course, if the initial attack is considered an "armed attack," the argument that it is somehow distinct from actual force, and that therefore a conventional military response would be disproportionate, would seem strained.

²⁰⁵ Feder, supra note 146, at, 403-04. As an American professor who later became a Judge of the International Court of Justice stated, "the right of self defense, by its very nature must escape legal regulation." Philip C. Jessup, A Modern Law of Nations 163. Historically, the U.S. government has taken a broad view of self defense. During the negotiations for the 1928 Kellogg-Briand treaty, the U.S. argued that each nation "is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war or peace." Robert F. Turner, Covert Action and the Law, 20 Yale J. Int’l L. 427, 433 & n.34 (1995). Furthermore, the language of Article 51 mentions "inherent" rights, although the U.S. has been skeptical of some nations’ assertion of inherent rights to respond militarily to activities other than "armed attack." Feder, supra note 146, at 403-04.

²⁰⁶ As Emmet Paige, Assistant Secretary of Defense for Command, Control, Communications and intelligence, reportedly said in 1995, "We have an offensive capability, but we can’t discuss it. . . . [However] you’d feel good if you knew about it." Neil Munro, Pentagon Developing Cyberspace Weapons, Washington Technology, (June 22, 1995).

²⁰⁷ Given the predisposition of the United Nations, it would seem that the U.S. should only pursue a declaration regarding information warfare if it wants to limit its use, as the majority of other nations seem likely to fear U.S. capabilities

²⁰⁸ Henkin, supra note 17 at 37-38. See also, generally, Charney, supra note 22.

²⁰⁹ Such treaties included: the Tokyo Convention on Offenses and Certain Other Acts Committed Against on Board Aircraft (1963); the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970); and the Montreal Convention on the Suppression of Unlawful Acts Against Civil Aviation (1973).

²¹⁰ The Convention's coverage would thus seem to apply to many new information attacks against aircraft or the air traffic control system.

²¹¹ Between the provisions of the Montreal Convention and the structures of the International Civil Aviation Organization (ICAO), it is likely that the air traffic control system has significant legal protections. Intentional destruction of civil aircraft in flight is generally illegal, whether conducted with information technology or explosives, and states have an obligation to extradite or try the perpetrators of acts. The adequacy of physical and technological protections of the air traffic control system is, of course, another matter and is beyond the scope of this report.

²¹² Advisory Opinion 58-63

²¹³ The possible applicability of arms control for information warfare is discussed in David Elliott, Lawrence Greenberg, and Kevin Soo Hoo, Strategic Information Warfare: A New Arena for Arms Control? (1997)

²¹⁴ Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and Their Destruction, (1972); Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare (1925).

²¹⁵ Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (1977)

²¹⁶ Protocol on Blinding Laser Weapons (1995); Burrus M. Carnahan & Marjorie Robertson, Current Developments, The Protocol on "Blinding Laser Weapons": A New Direction for International Humanitarian Law, 90 Am. J. Int’l L. 484 (1996).