This book explores the current impasse that global regulators face in the digital sphere. Computer technology has advanced human civilization tenfold, but the freedom to interact with others in cyberspace has made individuals, discrete communities, organizations and governments more vulnerable to abuse. In consequence, political decision-makers are seriously considering granting limited legal immunity to victims who decide to ‘hack- back.’ Many victims frustrated by the slow pace of law enforcement in cyberspace have chosen to ‘take the law into their own hands,’ retaliating against those who have stolen valuable data and damaged network operations. Political deliberations about limited immunity for hackbacks usually ignore global justice and moral justifications for ‘active defense’ policies. Typically, cyber security policies balance deterrence against two different understandings of morality and the ‘good life’ : fairness or welfare. This book proposes a third moral rationale for cyber security policies : capability theory, developed principally by Amartya Sen and Martha Nussbaum. Properly formulated, a capability-based defense of retaliatory hackbacks can minimize attribution and cyber-escalation risks, deter bad behavior by casual computer users, disingenuous security experts, big tech companies, criminals and rogue governments, and satisfy calls for more retributive and distributive justice in the ‘open world’. This book will appeal to legal theorists, political philosophers, social activists, investors, international relations scholars and businesspeople in the tech community.
Author(s): A. Jean Thomas
Publisher: Palgrave Macmillan
Year: 2023
Language: English
Pages: 358
City: Cham
Acknowledgments
Contents
List of Tables
1 Introduction
References
Part I Open World Skepticism and Attainable Ends
2 The Open World Ethos
1 Structure of the Open World
2 Open World Governance
2.1 The Global Commons
2.2 Access to Educational Facilities and Research
2.3 Free Trade
2.4 Internet Access and Cyber Sovereignty
2.5 International Migration
3 Threshold Considerations
References
3 Skepticism, Self-Defense/Help and Global Justice
1 Open World Skepticism and Self-Defense
1.1 Ancient and Classical Skepticism
1.2 Modern and Contemporary Skepticism
1.3 Intuitions, Observations and Open World Skepticism
2 Justice v. Utility
2.1 Deontological Justice
2.1.1 Rights Theory
2.1.2 Fairness and the Difference Principle
2.1.3 Primary Goods
2.2 The Utilitarian Legacy
2.2.1 Consequentialism
2.2.2 Welfarism and Wealth
2.2.3 Efficiency
2.2.4 Means vs. Ends Revisited
3 Self-Defense vs. Self-Help
3.1 Self-Defense
3.1.1 Threshold Distinctions
3.1.2 Agent-Relativity v. Agent-Neutrality
3.1.3 Imminence
3.1.4 Deterrence
3.1.5 Degrees of Intrusion
3.2 Self-Help
3.2.1 Consent and Violence
3.2.2 Efficiency and Mitigation
3.3 Rights-Based Defenses of Self-Defense and Self-Help
3.4 Utilitarian Defenses of Self-Defense
4 Force and Meaningful Freedom
References
4 Capabilities, Entitlements and VRN
1 Capabilities Theory
1.1 Needs and Functionings
1.2 Defining Tastes and Preferences
1.3 Responsibility
1.4 Equalizing Opportunities
2 The Limits of Sen and Nussbaum
2.1 Lists, Temporality and Choice
2.2 The Means-Ends Problem
2.3 The Overlap Problem
3 Reconceptualizing the Melamed/Calabresi Matrix
3.1 Entitlements
3.2 Property Rules, Liability Rules and Other Rules
3.3 Efficiency, Distributional Concerns and ‘Other Justice Reasons’
3.4 Rules and Zones
3.4.1 Rule 1/Zone 1
3.4.2 Rule 3/Zone 3
3.4.3 Rule 2/Zone 2
3.4.4 Rule 4/Zone 4
4 VRN: Synthesis
References
5 Aggravating Factors, Freedom and Retaliation
1 Constraints on Self-Help/Defense
1.1 Necessity
1.1.1 Modernity and Necessity
1.1.2 The Impact of Reasonableness
1.2 Proportionality
1.2.1 Common Law Antecedents
1.2.2 Limiting and Enabling Proportionality
1.2.3 Acts of War
1.3 Due Diligence, Attribution and Distinction
2 Enhanced Penalties and Retaliation Costs
2.1 Neutralization Strategies
2.2 Repeat Offenders
2.3 Rule of Law Violations Caused by Political Failure
2.4 Critical Infrastructure or Public Safety
3 The Logic of Deterrence and Non-Escalation
References
Part II Domestic and International Hack-Backs
6 Surveillance and Disruption
1 Global Justice in Cyberspace
1.1 Familiar Guideposts
1.2 Digital Capabilities
1.3 The Political Tilt of Capability Theory and VRN
2 Empirical and Legal Overview
2.1 The Mechanics of Cyber Attacks and Hackbacks
2.2 Domestic Statutory Response
2.3 International Standards
3 Cyber-Espionage, Squatting and Surveillance
3.1 Cyber-Enabled Trade Secret Theft
3.2 Provocation, Capability and the Presumptive Rule
3.3 Opportunities Available to Victims of IP Theft
3.4 The Continuing Appeal of Retaliatory Hackbacks in Trademark Secret Law
3.5 The Efficiency of IP Theft Hackbacks
4 Ransomware, Botnets and Disruption
4.1 Preventing Disruptions
4.2 The Victim’s Revenge
4.3 Capability Challenges in Ransomware Cases
4.4 The Classic Zone 1 Scenario
4.5 The Efficiency of Anti-Ransomware Hackbacks
References
7 Exceeding Authorized Access Under the CFAA
1 A Perplexing Asymmetry
2 Competing Formulations of Access Under the CFAA
3 ‘Broadening’ v. ‘Narrowing’ the CFAA
3.1 Insiders and Outsiders
3.2 Purpose and Motive
3.3 Vagueness, Notice and Lenity
3.4 The ‘Public-Ness’ of Data
4 Intermediate Platforms and Bad Faith Determinations
4.1 Prosecutorial Discretion
4.2 Post-Citrin Agency Formulations
4.3 Data Protection Imperatives
5 The Van Buren Decision
6 Department of Justice Guidelines After Van Buren
7 Weak ‘Zone 2’ Hackbacks
8 The Security Research Debate
8.1 The Perils of Bad Faith Research
8.2 The Prevalence of Good Faith Research
8.3 Research on a Spectrum
9 Strong ‘Zone 2’ Hackbacks
10 The Efficiency of Weak and Strong Zone 2 Hackbacks
References
8 Amplifying American Power in Cyberspace
1 The International Order
1.1 Gradual Decline of the Liberal International Order
1.2 Realism and Its Critics
1.3 Primacy vs. Restraint
2 Strategic Responses to Cyber Infiltrations
2.1 The Authoritarian Advantage in Cyberspace
2.2 Democratic Guarantees, Human Rights and the Open World
2.3 Capabilities and Strategic Discourse
2.4 State Power and VRN
References
9 Capabilities, Populism and Presidential Leadership
1 Morality and The Critique of Neoliberalism
2 Cyberspace Challenges to Presidential Leadership
3 Economic Espionage vs. Armed Conflict
4 Trump’s ‘Right-Populism’
4.1 ‘America-First’ Realism
4.2 Cyber-Brinkmanship
4.3 Overmatch and Under-Target
5 Biden’s New Internationalism
5.1 Realism, Progressive Idealism and Neo-Populism
5.2 Constraints and Cyberspace
5.3 Permissibility Thresholds
5.4 Acknowledgement, Vulnerability and Credibility
References
10 Conclusion
References
References
Index
