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Cyber-attacks and the Duty to Assist (Op Ed)

Cyber-attacks and the Duty to Assist (Op Ed)

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Published by David Post
A brief op-ed, published in the National Law Journal (April 26, 2010), sketching out the contours of a "duty to assist" the victims of a cyber-attack under international law.
A brief op-ed, published in the National Law Journal (April 26, 2010), sketching out the contours of a "duty to assist" the victims of a cyber-attack under international law.

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Published by: David Post on Sep 02, 2014
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12/16/2014

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Sending out an SOS in CyberspaceDuncan Hollis & David PostApril, 2010
On January 1, 2009, an Indian oil tanker found itself under attack by machine gun fire from pirates off the coast of Somalia. he ship!s captain sent out an SOS. " #alaysian frigate heard the call and immediately responded, sending a helicopter to the scene. On its arri$al, the pirates fled and the tankers! cre% escaped unharmed. he SOS sa$ed both li$es and property. It %orked because for more than a century international la% has clearly re&uired all those recei$ing an SOS signal to 'proceed %ith all possible speed( to render assistance. oday, similar legal duties abound)%hat %e might call a 'duties to assist()%hether in response to a pilot!s #ayday call, distress signals or emergency numbers. "s yet, ho%e$er, there is no SOS for the Internet. #ost companies and go$ernments are reluctant to e$en admit the e*istence of a cyberattack, let alone ask others for assistance. " defensi$e mindset predominates. +ictims focus their time and money on building thicker security %alls in hopes of repelling further attacks. oogle!s recent disclosures, ho%e$er, demonstrate that this defense-only strategy is insufficient. y its o%n admission, oogle failed to stop attacks from /hina on not only its infrastructure but alsothe e-mail accounts of $arious /hinese human-rights ad$ocates. he fact that the great oogle could not defend itself suggests that cyberspace needs a duty to assist those %ho ask for help. /yberspace is not real space. or is a cyberattack akin to a physical attack. ut as the %orld!s dependence on information net%orks gro%s, cyberattacks can and %ill do great harm. hen hackers marshaled a million computers to block access to stonian computer net%orks in 2003, they took do%n emergency phone lines and fro4e online ser$ices for the go$ernment, banks, uni$ersities and hospitals. oday, cyberattacks repeatedly compromise communications, %hether among /hinese human rights acti$ists, Iranian dissidents, or 5.S. 6efense 6epartment officials. 6o4ens of militaries ha$e assembled cyberforces, not simply to defend against cyberattacks, but to launch them as %ell. Indeed, /hina!s military remains the chief suspect in the oogle attacks. *perts fear a future %here cyberattacks %ill disable anything from po%er grids to stock e*changes. 7o% %ould a duty to assist deal %ith such risks8 If nations could agree %hether by treaty or by customary practice: that anyone %ho can help must do so, it %ould pro$ide a much needed first principle for cyberattacks. "t present, there is no agreement on %hat rules go$ern these attacks. /riminal la%s sometimes apply, but if attacks come from military sources, la%-enforcement methods %ill not %ork. he la%s of %ar may then apply, but e*perts disagree on ho% to translate those rules into cyberspace. "nd e$en if %e could agree on ho% to apply e*isting rules, they are unlikely to do much good. /yberattacks are generally anonymous. "bsent outside intelligence or luck both of %hich helped oogle:, %e %ill rarely kno% %ho launched an attack. oth criminal la%

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