CPM

When a cyber incident occurs, the responder is unaware of whether the attacker is a script kiddie, an insider, a former disgruntled employee or customer, a lone bad actor, a terrorist, or a nation state – or some combination of these actors. Analysis of a cyber incident often involves tracking communication paths through foreign jurisdictions and obtaining assistance and cooperation from providers and law enforcement. This process raises numerous legal issues about jurisdiction and cybercrime laws and requires cumbersome legal processes that are ill suited to rapid response. If the actor is identified or suspected to be a nation state, however, the path involves an area of the law unfamiliar to most law enforcement, computer professionals, managers, and attorneys: the laws of armed conflict. Additionally, in certain critical situations, emergency action may need to be taken by governments, such as ordering networks to be shut down or offering government assistance to counter an attack. Today, no one is prepared for these situations: not the private sector, the civilian agencies, law enforcement, or the military.

This program explores the legal issues associated with cyber conflict and cybercrime and brings forth a series of critical issues for exploration and dialogue. The panel will explore issues such as:

• What is the legal process for obtaining foreign assistance and cooperation in investigating a cyber incidence? What is the Letters Rogatory process and how is assistance obtained using a Mutual Legal Assistance Treaty?
• What is the reach of cybercrime laws? Can an organization back-hack or engage in active defense to counter an attack? When is assistance required?
• What are the laws that can be used against economic espionage?
• What legal authority does Cyber Command have? DHS? FCC?
• What is the doctrine of posse comitatus that limits the assistance the military can provide? Does it limit the ability of DoD to assist in the investigation of serious attacks?
• Can companies join together for collective defense? Is that an antitrust violation?
• Does anyone have the authority to shutdown the Internet or networks?
• Can a government entity take over a private sector network for public safety or national security reasons? Under what authority?

This session will be chaired by Allan Berg, National Board of Directors, InfraGard National Members Alliance, and moderated by Jody Westby, Chair, ABA Privacy & Computer Crime Committee (Science & Technology Law Section) & CEO, Global Cyber Risk LLC.

A panel of legal experts will participate in a stimulating discussion that weaves together these legal topics, exposes the uncertainties, and highlights some of the most serious legal impediments to cyber investigations and national security in a cyber conflict scenario. The second part of the program will bring the discussion to life through role-playing a mock scenario that raises the issues of cyber conflict, government authority, and cybercrime.