cyBersPaceoPeraTionsandlaw : arewardinGleGalPracTice
Military & Veterans Affairs Committee
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precedents . Additionally , because cyberspace operations are technical , and the domain in which they occur is opaque , most activity takes place outside of the public ’ s view . Similarly , national security matters are classified and known by few . Imagine the legal community developing tort law despite all but a handful of attorneys being blind to most of the torts that are occurring . Because of the nature of cyberspace , and the secrecy in which offensive operations occur , this is the environment in which cyberspace operations law must develop . nevertheless , attorneys from the departments of defense , Homeland Security , Justice , State , Treasury , and the intelligence community are advising senior military and political leaders daily on cyberspace operations legal and policy matters . These matters include the law of armed conflict , information operations , humanitarian law , telecommunications law , First and Fourth Amendment issues , and norms agreed upon by the United States , its closest allies , and its adversaries , among many others . Considering the cyberspace ’ s enmeshment with almost every aspect of daily life , a cyberspace operations attorney can be confronted by almost any area of law .
Among the more challenging issues , the Supreme Court has found there is a right to receive information that is concomitant with the right of free expression . While foreigners outside the U . S . are not protected by the Constitution , the right of Americans to hear from them is largely protected . Because of this right , it is likely that many of the foreign influence campaigns seeking to manipulate U . S . political and social discourse are protected by the First Amendment . The contours of this protection are unclear , especially regarding the protection due covert foreign influence , if any . regardless of source , however , free expression traditions will impact the ability of the U . S . and other democracies to counter foreign influence campaigns . Lawyers will be essential contributors in shaping the full scope of permissible counter foreign influence operations .
There are few areas of law unadorned by evolving and enduring jurisprudence . While this can be intimidating , especially in the face of a client seeking certainty ( or a military commander demanding it ), it is a unique and fulfilling way to practice . Furthermore , it will be a growing area of legal development for years to come . n
Author : Kurt Sanger – U . S . Marine Corps ( Retired ), former Deputy General Counsel – U . S . Cyber Command
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