Peeling Back the Onion of Cyber Espionage after Tallinn 2.0

Tallinn 2.0 represents an important advancement in the understanding of international law’s application to cyber operations below the threshold of force. Its provisions on cyber espionage will be instrumental to states in grappling with complex legal problems in the area of digital spying. The law of cyber espionage as outlined by Tallinn 2.0, however, is substantially based on rules that have evolved outside of the digital context, and there exist serious ambiguities and limitations in its framework. This Article will explore gaps in the legal structure and consider future options available to states in light of this underlying mismatch

Online Casino Advertising: Testing the Limits of Commercial Speech

<span style="font-family: TimesNewRoman;"><font face="TimesNewRoman"><p align="left">The advent of the Internet has revolutionized the daily lives of everyone by giving increased access to information and consumer transactions, while also adding change and further complexity to the law. Gambling has adapted to the arrival of the Internet with online sports books</p></font></span><p align="left"><span style="font-family: TimesNewRoman; font-size: xx-small;"><span style="font-family: TimesNewRoman; font-size: xx-small;">2 </span></span><span style="font-family: TimesNewRoman;">and online casino gambling,</span><span style="font-family: TimesNewRoman; font-size: xx-small;"><span style="font-family: TimesNewRoman; font-size: xx-small;">3 </span></span><span style="font-family: TimesNewRoman;">both developing a presence on the Internet. These new online casinos have begun to advertise both on the Internet and through more traditional broadcasting, like radio and television.</span><span style="font-family: TimesNewRoman; font-size: xx-small;"><span style="font-family: TimesNewRoman; font-size: xx-small;">4 </span></span><span style="font-family: TimesNewRoman;">As a result, the Department of Justice has begun to crack down on online casino advertisers, primarily by threatening prosecution against advertisers through the Wire Act (18 U.S.C. &sect; 1084).</span></p

National Security Lawyering: The Best View of the Law as a Regulative Ideal

In The National Security Lawyer in Crisis: When the “Best View” of the Law May Not Be the Best View, Robert Bauer describes the challenges for executive branch lawyers providing advice during a national security crisis. Bauer focuses on two especially perilous episodes in United States history—the Cuban Missile Crisis and the run-up to U.S. involvement in World War II—and analyzes the legal advice Presidents Kennedy and Roosevelt, respectively, received. In both cases, widely respected lawyers gave legal advice that supported the President’s preferred outcome, but almost certainly did not represent what the lawyers considered the best view of the law. The “best view” model of lawyering appears to have no formal or widely recognized definition, either in Bauer’s article or elsewhere in the literature. Perhaps the best articulation of the concept is in the memorandum that sets out the “best practices” for the Department of Justice’s Office of Legal Counsel (OLC), which directs OLC lawyers to “provide advice based on [their] best understanding of what the law requires—not simply an advocate’s defense of the contemplated action or position proposed by an agency or the Administration.” In rendering this advice, they must seek “to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration’s or an agency’s pursuit of desired practices or policy objectives.” Bauer takes a dim view of this best view model, which he considers rigid, disconnected from important policy context, and unworkable in a crisis. Bauer proposes an exception to the best view approach for lawyers facing a national security crisis. Lawyers under those circumstances, he argues, should be free to provide alternative legal analysis that supports the preferred policy position, so long as it is credible and made in good faith. Bauer’s proposal to create an exception to the best view standard for crises, however, risks compromising the quality of national security lawyering overall. National security lawyers in the Executive Branch practice in an environment without many of the formal and informal incentives for high-quality legal advice that are common in other fields. The stakes are unusually high, which increases pressure from policymakers. At the same time, there is less external oversight from the courts and Congress, and the secrecy of much of the subject matter makes peer and public input difficult. Because of these challenges, it is important to build into the process of developing national security legal advice as many protections for high-quality legal analysis as possible. The best view standard is such a protection, and a critical one. The best view standard is important to high-quality national security lawyering not because it always results in an objectively “right” legal answer—that is not possible. Instead, the best view standard acts as a guidepost—a regulative ideal— for lawyers, reminding them of their distinctive role in the process and grounding them with an external professional standard. It serves as a counterweight to the inevitable pressures that these lawyers face. It also honors and upholds the unique responsibilities of Executive Branch lawyers to assist the President in carrying out his constitutional responsibility to see that the laws are faithfully executed. Bauer’s proposal to recognize a lower standard in crisis situations would subvert this protection

AGORA: Reflections on Zivotofsky v. Kerry : Historical Gloss, the Recognition Power, and Judicial Review

The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”1 Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry(Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.2 The focus of this essay is on the Court’s methodology rather than its conclusion. In particular, the focus is on the Court’s reliance on the historic practices of Congress and the executive branch in support of the Court’s finding of an exclusive presidential recognition power. Reliance on such practice—also known as “historical gloss”—is common in constitutional interpretation relating to the separation of powers. For a variety of rea-sons, however, there are unlikely to be many instances in which historical practice will clearly establish an exclusive presidential power. In Zivotofsky II, the relevant practice provided clear support only for a power of recognition and was ambiguous about whether this power was concurrent or exclusive. The Court’s assessment of the practice, therefore, appears to have been affected by other considerations, such as the Court’s perception about the consequences of adopting a particular interpretation. This is not necessarily an indictment, given that a similar dynamic often characterizes other aspects of constitutional interpretation, including textual analysis. It is probably fair to say, however, that whereas in some cases historical practice shapes perceptions about other interpretive materials, in Zivotofsky II the principal direction of influence was the other way around. The decision also highlights tensions between a custom-based approach to the separation of powers and the institution of judicial review, tensions that are potentially relevant both to the proper scope of justiciability doctrines as well as to the way in which judicial decisions are best formulated

Cyber Attacks as Force Under UN Charter Article 2(4)

In a 2010 article in Foreign Affairs, Deputy Secretary of Defense William Lynn revealed that in 2008 the Department of Defense suffered the most significant breach of U.S. military computers ever when a flash drive inserted into a US military laptop surreptitiously introduced malicious software into US Central Command\u27s classified and unclassified computer systems. Lynn explains that the US government is developing defensive systems to protect military and civilian electronic infrastructure from intrusions and, potentially worse, disruptions and destruction, and it is developing its own cyber-strategy to defend the United States in the digital age. To what extent is existing international law, including the UN Charter, adequate to regulate cyber attacks and related offensive and defensive activities today and in the future? By cyber attacks I mean efforts to alter, disrupt, degrade or destroy computer systems or networks or the information or programs on them. This article examines one slice of that legal puzzle: the UN Charter\u27s prohibitions of the threat or use of force contained in Article 2(4). Other writings in this volume deal with questions such as Article 51\u27s self-defense provisions and questions of State responsibility, and there are other international legal prohibitions and regulations that are relevant as well. But Article 2(4) is a good place to start because it establishes or reflects foundational principles upon which most international law regulating international security sits. As a general matter, military attacks are prohibited by Article 2(4) except in self-defense or when authorized by the UN Security Council. Also as a general matter, most economic and diplomatic assaults or pressure, even if they exact tremendous costs on a target State, are not barred in the same way. Where along the spectrum in between might cyber attacks – which have some attributes of military attacks and some attributes of non-military pressure – lie? Almost a decade ago, in a previous volume of this series, Professor Yoram Dinstein observed of cyber attacks: The novelty of a weapon – any weapon – always baffles statesmen and lawyers, many of whom are perplexed by technological innovation.... [A]fter a period of gestation, it usually dawns on belligerent parties that there is no insuperable difficulty in applying the general principles of international law to the novel weapon.... This article takes up that claim in examining how US officials, scholars and policy experts have sought to adapt the UN Charter\u27s basic principles. This analysis yields two descriptive insights. First, it shows that American thinking (both inside and outside the government) inclines toward reading prohibited force broadly enough to include some hostile actions that might be carried out with bits of data in cyberspace. Although not necessarily inconsistent with interpretations previously dominating American thinking, this recent inclination reflects a shift away from the stricter readings of Article 2(4) and related principles that the United States government defended in the past when it was often the United States and its allies resisting efforts by some other States to read force broadly or flexibly. Second, any legal line drawing with respect to force and modes of conflict has distributive effects on power, and it is therefore likely to be shaped by power relations. Because States have different strategic cyber-capabilities and different vulnerabilities to those capabilities, it will be difficult to reach international consensus with regard to the UN Charter\u27s application to this problem

Reforming Lawyers into Irrelevance?: Reconciling Crisis and Constraint at the Office of Legal Counsel

A Predator drone attack in Pakistan and the enhanced interrogation techniques that the Bush administration used on suspected terrorists have at least one thing in common: legal advice. While advice given the Obama administration on drones has received only a partial airing, disclosure that lawyers in the Justice Department’s Office of Legal Counsel (OLC) authorized coercive interrogation after 9/11 has ignited a wide-ranging debate on reform and accountability. However, the volume of calls for reform has exceeded consideration of the competing values at stake. Some reformers stress the need to combat a climate of impunity with formal sanctions such as disbarment and damages. Advocates of structural reform, such as Bruce Ackerman, view sanctions as small change, and urge OLC’s makeover as an adjudicative body. Veterans of OLC reject these dramatic steps. They caution that structural changes could threaten the separation of powers. Structural changes could also detach OLC from its clients in the executive branch, transforming it into a stately mansion that requires too much maintenance to use. OLC veterans urge more measured changes, including greater transparency and a renewed commitment to stare decisis. After assessing these reform proposals, this paper suggests a model of dialogic equipoise to shape both the substance of OLC opinions and OLC’s deliberative process. While a structural makeover would actually weaken the rule of law, OLC resembles a court in its need to conserve institutional capital with two audiences: the legal community and the President. OLC can issue opinions that authorize robust responses to national security and humanitarian crises, if the President seeks ratification of executive action. To conserve OLC’s institutional capital, the model caps legal advice that expands presidential power. Just as courts preserve institutional capital with devices such as standing, mootness, and political questions, a cap will prompt OLC to marshal its institutional capital for those occasions when no alternatives will do the job