Academic journal article The Journal of High Technology Law

Encryption: What Is a Defense Contractor's Role in a Cyber World?

Academic journal article The Journal of High Technology Law

Encryption: What Is a Defense Contractor's Role in a Cyber World?

Article excerpt

I. Introduction

Before the twenty-first century, warfare consisted more of artillery than computer network attacks, (1) yet, the increase in both terrorist activity and number of cyber warriors prompted Congress to introduce legislation to address the evolving cyber threat. (2) In 2002, the implementation of the SAFETY Act started the production of high technology defense equipment geared more for cyber warfare than artillery warfare. (3) The word 'SAFETY' is an acronym for 'Support Anti-Terrorism by Fostering Effective Technologies'. (4) Furthermore, the act awarded liability protection to defense contractors ("contractors") to manufacture defense equipment after a "certified" terrorist event happened. (5)

With increased terrorist activity, the SAFETY Act introduced a new type of equipment used for protecting American lives during a vulnerable time. (6) Additionally, limiting contractor liability encourages more contractors to develop cyber products that would prevent terrorist attacks, including cyber-attacks. (7) Moreover, after the equipment was built, it was readily available for the Department of Defense to deploy into anti-terrorism missions. (8)

The Secretary of Defense has authority to target rogue actors who launch cyber-attacks against the U.S. Government. (9) Additionally, other Federal agencies such as the National Security Agency (NSA) have authority to approve or disapprove the cyber equipment that assists military personnel on deployment. (10) Further, President Obama specifically referenced encryption equipment as a means to handle cyber threats in the National Defense Authorization Act (NDAA). (11)

One particular type of equipment with 'Tactical Local Area Network Encryption' (TACLANE) capability is the TACLANE en-cryptor, sold by the contractor General Dynamics, which can both ward off attacks and serve as a private highway for classified information. (12) The TACLANE encryptor is a piece of hardware embedded with computer software that protects highly sensitive data and seals classified communication. (13) Moreover, TACLANE is an essential part of the Army's WIN-T program which has its own line item in the NDAA. (14) Further, while building such equipment, contractors must comply with federal regulations that prevent them from discussing or disclosing proprietary information about encryption equipment and programs such as WIN-T. (15)

First, this Note will establish how cyber warfare has influenced contractors to build more encryption equipment in the twenty first century. (16) Second, this Note will explore how lawmakers and government agencies were prompted to implement legislation and impose regulations geared towards cyber security and terrorist threats. (17) Third, this Note will take the language from such legislation and federal acquisition regulations and explain how contractors must comply. (18) Fourth, this Note will explore how such regulations and agency demands affect the contractor while they build such equipment. (19) Finally, this Note will highlight the actual equipment used, its functionality, and the competition between contractors to build the best high technology military equipment for our military. (20)

II. History

The evolution of warfare from artillery to cyber is challenging for law makers and federal agencies to handle because cyberwar is an unfamiliar threat. (21) Further, military conflicts previously involved physical force and imposing one's armed forces against the enemy (22), rather than imposing sophisticated technology attacks on the enemy's computer network. (23) Additionally, it is challenging for a targeted entity of a cyber-attack to identify who launched or directed the attack, if it is a cyber-attack, or whether the cyber situation is just a network malfunction. (24) Moreover, the targeted entity may be delayed in recognizing that it was a victim of cyber warfare. (25)

Despite the complexity of a cyber-attack, the SAFETY Act prompted contractors to build equipment and provide services so subjected entities could withstand attacks. …

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