A Cyber Duty of Due Diligence: Gentle Civilizer or Crude Destabilizer?

By Jensen, Eric Talbot; Watts, Sean | Texas Law Review, June 1, 2017 | Go to article overview

A Cyber Duty of Due Diligence: Gentle Civilizer or Crude Destabilizer?


Jensen, Eric Talbot, Watts, Sean, Texas Law Review


I.Introduction

In the final book of Virgil's epic poem the Aeneid, Latinus, King of Laurentum, delivers a speech to calm his aspirant son-in-law Turnus. Turnus is enraged that his rival Aeneas, cousin to the Iliads Hector, will marry the King's daughter instead. Turnus vows one-on-one combat with Aeneas to avenge the slight and to settle the war between the Trojans and Latins. King Latinus attempts to convince him not to fight Aeneas, imploring the prideful Turnus:

Take to heart

This fact: it was not right that I should pledge

My daughter to a suitor of other days:

Gods, and prophecies of men, forbade.

Affection for you, our Rutulian kinsman,

Won me over-and my wife in tears.

I broke my bonds of duty, stole the girl,

Though promised, from her husband, and took arms

Against the will of heaven. You see what followed,

Turnus: the bloody wars and the defeats,

The bitter days you, most of all, endure.1

However, rather than calm Turnus, King Latinus's words aggravate him and propel him to fight Aeneas. Virgil describes the effect of the King's speech:

All that he said affected Turnus's fury

Not in the least: it mounted, all the more

Fevered at words of healing.2

Virgil's original Latin captures the speech's effect with the phrase aegrescit medendo-the disease worsens with treatment or the cure worsens the disease.3 The lesson endures as a cautionary tale to well-meaning assistance to intractable predicaments.

The predicament of malicious cyber actions is by now well-documented. Harmful cyber activities range from embarrassment of public figures4 and campaigns to build personal notoriety,5 to thefts of personal data6 and even efforts to cripple vital infrastructure upon which lives depend.7 In financial terms, it is estimated that cybercrime costs the average U.S. company $15 million a year.8 The problem, of course, is not limited to personal and business relations. Intrusive and malicious cyber operations are now a regular feature of international relations.9 Cyber operations are thought to have struck at the core of some States' sovereignty, including the political processes of self-determination.10

Responses have been many and varied. Governments have passed domestic legislation,11 generated international agreements,12 and convened groups of experts13 to address the cyber predicament. Corporations have lobbied for (but have also resisted) new laws,14 created and proposed information-sharing entities and norms,15 and built capacity to respond in like manner to cyber hacks.16 Meanwhile, academics and jurists have banded together to propose rules and produce manuals such as the Tallinn Manuals,11 the second version of which is the genesis of this symposium.

Even when States are able to achieve either domestic or international consensus to counter harm in cyberspace, technical and legal limitations hinder progress. In particular, the dilemma of attribution, correctly identifying and holding responsible harmful actors, hampers many efforts. The nature of the Internet, including how it is configured and functions, makes attribution one of the most technically difficult and persistent impediments to preventing or mitigating cyber harm.18 In cyberspace, anonymity is easily achieved and maintained not only in a personal sense, obscuring the identity of the person making keystrokes and clicks, but also in a technical sense, obscuring the location and identity of the cyber infrastructure from which harm originates.

A potential solution to the problem of attribution is a response proxy- an entity against whom action is taken when action against a responsible party is not feasible. The proxy system addressed in this Article is imbedded in the international law notion of State responsibility for transboundary harm. As will be explained below, holding a State responsible for allowing harmful activities to emanate from its territory that produce significant effects on another State is increasingly supported by international law. …

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