New problems in a new field: “public international cyberlaw”

Two interesting articles have appeared already this week addressing, for lack of a less ridiculous term, "public international cyberlaw." First up is an op-ed in the LA Times from Duncan Hollis (an Opinio Juris blogger) on the prospect of online warfare. For starters, he writes that it’s not just a prospect any more — there was this summer’s purported Russian attack on Estonia’s IT infrastructure as well as the US’ allegations that China is hacking the Pentagon. Oh, and it’s going to get worse: "Just last March," writes Hollis, "in an experimental cyberattack, researchers at the Department of Energy’s Idaho National Laboratory managed to make a generator self-destruct." In years previous the idea that "the next war will be fought online" always sounded to me like a Star Wars boondoggle for a new generation, but I’ll allow that it’s probably time to take another look.

Then in today’s Washington Post comes another online threat that is, if less dramatic, certainly much more prevalent even today. Everyone’s heard of the Great Firewall of China, but in recent months no less a paragon of liberal democracy than the European Union has met to hash out online filtering standards. To be sure, what they propose to block — terrorist, pedophiliac, and other criminal content, for the most part — is abhorrent, but it’s also a slippery slope. See also Burma, where electronic isolation is likely a major part of the current regime’s day-to-day hold on power.

I think one clear question for the international community is, how will the law confront these issues? We’re past the point, I think, of the internet being a vague "new challenge" of the type about which my undergrad social science textbooks were so wont to tack on a final chapter to fill out their latest editions. The internet’s here in a big way, and as these issues multiply, the analogies to existing international law won’t hold up. Both articles include talk of new international rules or standards to combat these issues. At the same time, though, one of international law skeptics’ most damning points is it glacial pace of development. I’ll be honest that I don’t know, as a 1L, how this will turn out. But, I’m going to stay tuned.