SEEKING AND CONNECTING THE DOTS: LEGAL CHALLENGES TO COUNTERING FOREIGN CYBERATTACKS LAUNCHED FROM WITHIN U.S. DOMESTIC CYBERSPACE
Last year, General Nakasone, Commanding General of U.S. 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). Due to legal restrictions on U.S. Cyber Command operations in U.S. cyberspace, these foreign adversaries were able to avoid U.S. Cyber Command detection. ln the words of General Nakasone, American adversaries “exploit[ed} a gap.” As a result, he stated, “lt’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 Fourth Amendment, FlSA, 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.
Author: Lieutenant Colonel Mark A. Visger
PDF: http://ncjolt.org/wp-content/uploads/sites/4/2022/10/Visger-Final.pdf
Volume 24, Issue 1