CHAPTER
5
Actionable Legal Knowledge for the Security Professional
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Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.
—Sun Tzu, The Art of War
Statistically speaking, if you are reading this book, or more precisely, this chapter of the book, chances are quite good you are not a lawyer. Chances are even better still that, in some significant way, dealing successfully with lawyers will have a big impact on your ability to do your job.
This chapter is intended to help the IT/cyberspace operations/information warfare/information operations/information dominance/network warfare/on net operations professional become a better partner with legal counsel. More specifically, the goal is to explain how to be more effective when dealing with the lawyers you’re likely to encounter while performing your job.
Often you will find, or at least it will appear, that the only thing standing between you and your operational objective is the law, or rather how a lawyer interprets the law in question. Mastering the art of collaborating with your lawyer is certainly among the most important steps in advancing yourself as a cyber professional. After all, it doesn’t matter what kind of killer, out-of-the-box approach or solution you’ve developed—if it doesn’t make it past the legal department, it’s not going to happen. Therefore, your lawyer can be your best friend or your worst nightmare, depending on how effective you are at conveying your operational objectives and getting approval.
Your ability to tell a cogent story, with just the right amount of technical jargon (usually as little as possible) is critical to your success. If the lawyer doesn’t understand exactly what you’re proposing, the lawyer is not likely to find a nuanced or novel approach to help realize your objective. This is not to suggest that there are no lawyers out there who understand cyberspace operations, hacking, IT, and so on, for many are quite technically skilled in addition to their legal acumen. However, in those instances when you are attempting to push the envelope, your legal counsel may be at a slight technological disadvantage. This situation can and should be avoided with tactful planning on your part.
You should make certain that you can explain your operational objective in the simplest terms possible. You’re both professionals, but you must remember that it is part of a lawyer’s professional training and development to be able to break down a law or regulation in terms that the layman can understand. Learn to reciprocate! Typically, it’s the departure from the norm that often presents the problem. If you are repeatedly doing the same kinds of operations under the same authorities, everyone involved, including legal counsel, gets into a comfort zone. Deviation breaks the rhythm and causes scrutiny. This is certainly not to suggest that you can pull a fast one on counsel to get approval for something patently unauthorized or illegal. Rather, it is far better to bring counsel into the planning process as early as possible and as often as practicable. Ideally, collaboration will lead to a productive partnership that leverages the skill and experience of the cyber professional and the attorney.
As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could.
—Samuel Johnson, Boswell’s Life of Johnson
How to Work with a Lawyer
To begin, do not assume that your lawyer has only you or your operation as his sole focus. Your lawyer probably has more than one client/issue on his plate. It is therefore imperative for you to engage this busy professional in a manner that is most likely to produce optimum results for you both.
Always come prepared to any engagement or meeting with your lawyer. It’s a good idea to begin your preparation by doing a little research on the lawyer or lawyers you will be meeting. Lawyers frequently post professional bios online, so it should not be difficult for you to find some information to help you better understand the person with whom you’ll be dealing. Also, you might be able to obtain information just by asking colleagues who have had prior dealings with the lawyer about their experiences. This kind of information, while anecdotal, often proves quite valuable.
Be prepared to explain, in nontechnical language, exactly what you propose to do. Of course, use common sense. If you’re dealing with a technically sophisticated lawyer with experience in dealing with the types of issues confronting you, you can raise the degree of technical language. However, don’t be afraid to ask if you are speaking too technically. Always offer to explain again, using more plain English. If the operation is especially technical, consider bringing along visual aids. As they say, a picture is worth a thousand words. Therefore, you may find that using two or three simple presentation slides or diagrams to illustrate or storyboard your operational goal may be clearer than merely talking, especially if you have trouble breaking down technical details into plain English.
It is ignorance of the law rather than knowledge of it that leads to litigation.
—Cicero, De Legibus
Of course, it can be very helpful if you know something about the law. However, such knowledge generally proves to be of little value if your goal is to “out-lawyer your lawyer.” Try to maintain a balanced approach by providing the kinds of information a lawyer would find of value. An example of valuable information is walking the attorney through the technical details regarding the degree to which a proposed operation is a derivation from a previously approved or rejected approach, or why the approach is utterly unique but still falls within acceptable legal parameters.
In the beginning, you may need to actually ask what type of information the lawyer needs to help you, but this should become easier over time as a rapport develops. Once you’ve developed a good, collaborative relationship, you should be able to anticipate or predict the nature of the questions or information that counsel might have. You may also find that you’ll become more proactive and seek out engagement earlier in the planning process. If you only have infrequent dealings with lawyers, or work with a different lawyer each time, compress the approach and focus on the clarity of delivery of the information.
If you must do legal research, do it to become a better partner, not to become a lawyer (that’s already the lawyer’s job). As the lawyer becomes more familiar with cyber issues, you become more familiar with legal issues regarding the cyber realm. This will facilitate discussions for all parties and help focus the discussions, while avoiding long explanations from either side. It’s certainly fine to convey your understanding of the law and knowledge of legal issues, but getting into a confrontation rarely will serve your goal of getting the operation approved. While it is technically possible to debate a lawyer on the interpretation of the law and convince that lawyer you are correct, this often isn’t the wisest initial approach. Seek a partnership with your lawyer, and you will find an ally who will support you and take the time to work with you.
Be prepared. You should develop the story in your head, and perhaps even write it down and practice it. Ideally, you should be able to explain in plain English, in about ten minutes, the nature of the proposed operation or problem you would like addressed. If you believe the law is on your side, then applying it in your explanation of the situation can be helpful, but it is not necessary.
Get legal counsel involved as early as possible. Indeed, you are much more likely to have an activity or operation approved if you’ve been working with the lawyers from the outset. Typically, it is well along in the planning process (or, from the operator’s perspective, all the planning has been done) when the operation is presented to legal for review. The resulting delay caused by conducting a review from scratch late in the game frequently has a negative operational impact. At a minimum, you aren’t taking maximum advantage of your lawyer’s information. Remember that the lawyer’s job is to keep you on the right side of the law, out of court and out of jail. It’s that simple. Keeping the lawyer in the loop along the way is smart. It builds a professional rapport, and the increased familiarization can pay dividends for you both.
To me the law seems like a sort of maze through which a client must be led to safety, a collection of reefs, rocks and underwater hazards through which he or she must be piloted.
—John Mortimer, Clinging to the Wreckage
What You Should Know About Legal Research
You only need to concern yourself with the basics of what the law is and where to find it. To answer these questions, you’ll need to understand where laws come from and how they are codified.
So where do you find the information on the law you want? There are several online services that you can use to find statues, regulations, and case law, which may help you to understand how to best approach a discussion with legal counsel. These resources are often referred to by IT professionals as data repositories (lawyers don’t consider these sites to be merely collections of data, so they never use the term in this context). Even if your position at work means that you never need to deal with lawyers, it’s still a good idea to be familiar with laws that potentially impact your job, especially if your boss will be the one who meets with the lawyers to pitch your operation.
For the hard-chargers, consider subscribing to any of the myriad of legal websites and blogs that follow cyber law generally, and others that focus exclusively on the top-ten cyber cases. With time and effort, you’ll be at least conversationally familiar enough with the legal issues in these cases. Having a running knowledge of the major themes of these cases is important, but even more important is how they apply to your situation. Well, that’s precisely where your lawyer comes in, and with the background knowledge you’ve acquired, you’ll be able to engage in more fruitful discussions.
Online Legal Resources
The online resources described in this section are especially helpful if you feel the need to brush up on your legal knowledge. Some require paid subscriptions; others are free or offer free trials. Depending on your employment situation, you may have access to subscription-based legal research tools.
Legal research tools and resources vary widely. The ones recommended here should be especially helpful for those who are not lawyers. Since how you feel about interacting with a website is a matter of taste, we recommend visiting a few sites and taking them for a test drive.
Fastcase.com
Per the Fastcase website (www.fastcase.com/whatisfastcase/), “Fastcase.com is the leading next-generation legal research service that puts a comprehensive national law library and smarter and more powerful searching, sorting, and visualization tools at your fingertips.” Fastcase is very user-friendly, whether or not you’re a lawyer. The Fastcase search engine makes finding what you’re looking for easy.
The libraries are searchable by keyword (or Boolean search), natural language search, or citation lookup. This is the same as searching the Web or traditional legal research services, but what makes Fastcase’s solution so much smarter is its tools, which find the best answers fast.
Fastcase features an interactive map of search results, so you can see the most important cases at a glance. Long lists of text search results (even when sorted well) show only one ranking at a time. Sorting the most relevant case at the top might put the most cited case at the bottom. Sorting the most cited case at the top might place the most recent case at the bottom.
Fastcase also has a fairly revolutionary visualization tool called the Interactive Timeline. This tool shows all of the search results on a single map, illustrating how the results occur over time, how relevant each case is based on your search terms, how many times each case has been “cited generally” by all other cases, and how many times each case has been cited only by the super-relevant cases within the search result (“cited within”). The visual map provides demonstratively more information than a mere list of search results. Interactive Timeline is a powerful tool in the hands of a capable lawyer or paralegal; however, it might be a little overwhelming for others. Still, for the hard-core techno geeks who want to be in the deep end of the pool on everything they do, the Interactive Timeline should be the perfect way to get fully immersed in legal research.
One of the most important tasks for anyone conducting legal research is finding the seminal case. Generally speaking, when making legal arguments, you must be prepared to offer up cases that support the proposition of the law that is the basis of your position in the matter at hand. The seminal case is typically the first case from the highest court to have decided the issue and stated the proposition of law in question. If the proposition was itself a reversal or revision of earlier authority, the seminal case is the reversing or revising case (“The Art and Science of Selecting Cases to Cite,” Texas Bar Journal, April 2000). As the first case to have stated the proposition in question, the seminal case has generally gone into some depth in analyzing the issue and the court’s rationale in a manner that might not be repeated in later cases.
Search results on Fastcase automatically include the number of times each case has been cited. It’s the only service that allows you to find the most cited case in your results with a single click. On traditional services, you could do that only by Shepardizing or KeyCiting (propriety approaches found at LexisNexis and Westlaw KeyCite, respectively, which are used for determining the relevance of prior court decisions as precedent in the current case at hand).
NOTE
One of the most important skills a law student can develop is how to Shepardize a case, or check the relevance of a past court decision as precedent for a current case. US courts rely heavily on the principle of stare decisis (“let it stand”), so it’s critical to know whether the case law you’re relying on is actually still valid and pertinent. This task would be an endless nightmare if you had to hunt down the many cases that cite any one case by yourself. Fortunately, Frank Shepard, the nineteenth-century legal publisher who gave his name to the process, developed an indexing system that’s still in use today.
If you have the time and access to a really good law library, you can also do the analogue approach with hard-copy volumes and supplements. Note that this is very tedious work indeed, because you must do it for every case in the search results.
For lawyers, determining the seminal case is among the most important tasks in legal research, and Fastcase’s integrated citation-analysis tools are probably the most powerful and efficient way to find it. Others usually don’t need to take legal research to this level, but for those who do, Fastcase is the answer.
Best of all, Fastcase has a great app for the iPad, which is a pleasure to use. Considering that the word “pleasure” has probably never appeared in the context of legal research (and in the same sentence) in the history of man, that’s really saying a lot!
FindLaw.com
FindLaw.com (www.findlaw.com) is really two distinct websites: one site for nonlegal professionals seeking legal help and advice, and another site for legal professionals. For the purposes of legal research, use the professional site. The site is very well organized and provides access to popular federal resources, including the following:
imageBranches of the government (executive, judicial, and legislative)
imageGovernment agencies
imageExecutive agencies
imageIndependent agencies
imageQuasi-official agencies
imageBoards and commissions
imageFederal resources indexes
imageFederal laws, such as the US Constitution, US Code, Federal Register, and Code of Federal Regulations
imageUS Courts of Appeals, including the Supreme Court, the first through eleventh Circuit Courts of Appeals, the D.C. Circuit Court of Appeals, and the Federal Circuit Court of Appeals
FindLaw’s state resources cover all 50 states plus the US territories: American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands. Of course, you can also search case opinions by court or legal topic, such as “cyber law.”
FindLaw also offers guides to nongovernmental websites and public interest groups.
Justia.com
Justia.com (www.justia.com) is a legal media and technology company focused on making legal information, resources, and services easy to find on the Internet. The site provides free case law, codes, regulations, legal articles, and legal blog databases, as well as community resources.
Justia.com is unique for its use of Google technology to index the Supreme Court database and other legal content sections of the website. Anyone who is reasonably good at searching with Google will find Justia.com very comforting because their interfaces are virtually the same. The familiar user interface and search relevance have streamlined the user experience.
Justia.com leverages Google’s reporting capabilities and tools to gain insight into what its legal research users are searching for and are interested in. This has enabled the site developers to build out sections of the website based on user activity.
The website is especially good at presenting various areas of the law that you might not otherwise consider when conducting research, such as international law (treaties) and the laws of other nations. It is also an excellent resource for locating blogs, other web forums, and social media with a legal focus.
Google Scholar
Google Scholar (scholar.Google.com) is a great resource if you are looking for background information to broaden your understanding or contextualize your reasoning. Google Scholar is very easy to use, and it performs very broad searches of scholarly literature to come up with answers. It also uses Google’s technology to deliver the most relevant choices first. You can search across many disciplines and sources: articles, theses, books, abstracts, and court opinions from academic publishers, professional societies, online repositories, universities, and other websites.
Nolo.com
Nolo.com (www.nolo.com) provides a wealth of information on how to find and understand the law. Most other websites presume you’re in the legal profession and already know what you are doing. So if you are completely new to legal research, Nolo.com is a smart place to begin. The site prides itself on communicating in plain English and providing great explanations of legal terms and concepts. The layout is also very clean and easy to navigate.
Nolo.com also provides exceptionally clear guidance on how to do legal research. The fundamentals of legal research are constant; therefore, mastering (or at least understanding) the fundamentals is essential and should pay dividends in your collaboration with your lawyer.
Common Legal Terms
The following is a brief list of key terms you are likely to come across when conducting legal research on federal or state statutes (www.nolo.com/legal-research):
Annotated codes   These incorporate state or federal statutes with summaries of cases that have interpreted the statutes. Annotated codes are typically available only in law libraries or on legal websites that charge a fee.
Bill   When a statute is introduced before the Congress or state legislature, it is known as a bill. Once it is passed by both houses and the president or a state governor, it becomes a law. It is then published according to its bill number in a publication called Session Laws or State Statutes at Large.
Bill number   In the interest of clarity, bills are referred to by an alphanumeric designation. The first two letters indicate the specific wing of the legislature that introduced the bill, such as HB (House Bill) or SB (Senate Bill). This designation is followed by a space and a number that identifies a particular bill, such as HB 1380.
Chapter   This term refers to related state or federal statutes grouped together in a particular title or code.
Chaptered   A bill becomes chaptered if it is approved by the legislature and signed by the governor.
Citation   This term refers to formal references to statutes that describe where they are published. For instance, the citation “23 Vt. Stat Ann § 1185” tells us that this cited statute is in Section 1185 of Title 23 of Vermont Statutes Annotated. Similarly, the federal citation “42 USC § 1395” tells us that this cited federal statute can be found in Title 42, Section 1395 of the United States Code.
Code   This term essentially refers to the main body of statutes of the jurisdiction (for example, the United States Code or the Arizona State Code). The statutes within a given state code are organized by subject matter into Titles, as in Title 50 of United States Code (War and National Defense). In some states (such as California, Texas, and New York), the term may be used to refer both to the overall collection of statutes and the separate subject matter groupings of the statutes, as in Penal Code, Family Code, and Probate Code.
Engrossed   This term refers to when a legislative body, such as the House, votes to approve a bill and sends it on to the other legislative body (the Senate).
Enrolled   The bill is enrolled when both houses of the legislative body voted to approve it, and it has been sent to the executive branch (the president or a state governor) for signing).
Legislative history   This term refers to assorted materials generated in the course of creating legislation, including committee reports, analysis by legislative counsel, floor debates, and a history of actions taken.
NOTE
Legislative history for recently enacted federal statutes can be found at http://thomas.loc.gov/. Legislative history for state statutes is rarely found online, and will likely require a trip to the law library.
Session Laws   When bills become laws, they are published in a text according to the session of the legislature that enacted them into law. Thus, laws passed by the California legislature in 1989 were passed in the 1989–1999 session. The individual laws in the publication for a particular session (such as Session Laws 1989–1999) can be found according to their original bill number.
Statutory scheme   This term refers to a group of statutes that relate to one particular subject. For instance, all of the federal statutes that make up Title VII of the Civil Rights Act (which forbids employment discrimination and sexual harassment) are known as a statutory scheme because they are all related to each other.
Title   In the federal system and in some states, this term is used to denote a collection of state or federal statutes by subject matter, as in Title 11 of the United States Code for bankruptcy statutes or Title 42 of the United States Code for civil rights statutes. The term is also used to denote a group of statutes within a larger set of statutes, as in Title IX of the Civil Rights Act (which itself is located in Title 42 of the United States Code).
The Role of Statutes in Our Legal System
When people talk about “what the law says” or “what the law is,” they are generally referring to statutes (sometimes called codes), which are created by the US Congress and our state legislators in an attempt to lay out the ground rules of “the law.” When disputes arise over the meaning of the statutes, state and federal courts issue court opinions in an effort to interpret the statutes more clearly. The by-product of that process is referred to as case law.
How to Find a Law
Essentially, there are two ways to find a given state or federal statute on a state website: do a general search or browse the table of contents. Many states permit such searches, but not all. If the site allows searches, simply enter a few terms that relate to the subject of the statute. Each state has its own computer- or cyber-related laws (such as codes and statutes), covering the spectrum of issues from hacking, viruses, contaminants. destructive transmissions to intellectual property, and so on.
To do a good search, you need to anticipate the words used in the statutes you are seeking.
Searching can be difficult because you may not know the exact terms your state uses to address the issue you’re researching. Browsing the table of contents of statutes is often a better way to find laws on your subject. You can first look at the general subjects (titles or divisions). From there, you can move on to particular topics (chapters or articles), and then to the precise statutes you need (sections). By browsing, you also get a general idea of all the statutes there are on a specific subject.
Do Your Background Homework
If you are interested in a particular area of the law, you will need to read all relevant statutes on that subject. If you do not, you may miss an important statute that contradicts the law you have found.
Fortunately, most statutes are organized in clumps called statutory schemes, which are published together in one title, chapter, section, or act. So, once you find a statute on your subject, it is simply a matter of finding out where the statutory scheme starts (usually by backing up to earlier statutes), and then reading all related statutes until you reach a new title, chapter, section, or act.
Sometimes the statutes you read will refer to other statutes. You should take the time to read those statutes as well. Often, they will include exceptions, further explanations, or details that are important to your issue.
Keep in mind that you are gathering background information in preparation for working with counsel. This is not to suggest that you can’t have a productive working relationship with a lawyer if you have not done extensive background research on the relevant legal issues. A happy medium is probably the best approach. If you have a general sense of the law, it can be of value in developing strategies and plans to address your operational needs and requirements, especially if you do the development work in collaboration with your lawyer. Most lawyers would prefer to be involved from the beginning stages, to ensure legal compliance, rather than being handed the operational plan at the eleventh hour.
Reading the Law
Some statutes are clearly written, meaning that you can easily understand exactly what the legislature intended and what the law is on a particular subject. Unfortunately, many statutes are very difficult to understand. Exceptions to the statute, “whereas” clauses, and cross-references to other statutes can make it very hard to understand what a statute means. Here are some rules to use when interpreting a statute:
imageRead the statute three times, and then read it again.
imagePay close attention to all the “ands” and “ors.” The use of “and” to end a series means that all elements of the series are included, or necessary. An “or” at the end of a series means that only one of the elements needs to be included.
imageAssume all words and punctuation in the statute have meaning. For example, if a statute says you “may” do something, that means you are allowed to do it. But if a statute says you “shall” do something, that means you are required to do it.
imageIt’s tempting to skip words you don’t quite understand. Don’t do it. If you’re confused about what a word means and can’t understand from the context, look up the word.
imageIf the statute is one of a number you are studying, interpret it to be consistent with the other statutes if at all possible.
imageInterpret a statute so that it makes sense rather than leads to some absurd or improbable result.
imageTrack down all cross-references to other statutes and sections, and read those statutes and sections.
The terminology for IT and cyber technology is constantly evolving. To stay on top of the language, and also to find a place with clearly written definitions that you can use to help in your discussions with lawyers, try Webopedia (www.webopedia.com). This website is an excellent resource because it is kept up to date, and the editors do a phenomenal job of covering the spectrum of technical terminology. In fact, it is probably the best resource for technically precise explanations and definitions available on the Web.
Communicating with Lawyers
When dealing with lawyers, the importance of clarity of thought and expression cannot be overemphasized. Lawyers use language with precision, and one of the most frustrating aspects of dealing with lawyers is saying precisely what you mean. All too frequently, misunderstandings arise because of lack of precision in both written and spoken words.
You will be miles ahead of your counterparts if you can develop the skill of communicating more precisely. You may believe that a lawyer is splitting hairs by perceived “wordsmithing,” but we can assure you, counsel is reaching out to understand and translate what you are saying into a specific picture that most accurately represents what you are presenting, in a legal sense.
When you get together with your lawyers at the outset of planning, you will be able to scope out your operations and explain them in technically precise yet easy-to-understand language. From a lawyer’s perspective, you’ve already distinguished yourself from the typical techie as someone who’s really concerned with being understood. By that, we mean many IT professionals are so focused on the technical details (which are, of course, the nature of the job) that they take for granted that everyone understands what they’re talking about. And in most IT professional-to-IT professional cases, this is true. However, the manner in which you speak to a lawyer should be different, and that difference is precision of language.
Even if you are tech-savvy, it is still a good idea to review the definitions of terms you are familiar with. You are likely to find plain language that is more easily understood than that you ordinarily use.
Taken as a whole, improving the precision of your language and doing enough legal research to help you understand the context of the operation you are proposing will go a long way to improving the dynamic of the working relationship you’ll have with your lawyer. Ideally the clarity and precision of your communications will improve over time the more closely you work with legal counsel. As an IT professional, it is not expected that you take a course on legal research and writing just to be able to work with a lawyer. A far more effective approach would be to create a dialogue, within the working relationship with a lawyer, and strive to improve communication together.
Ethics in Cyberspace
Beyond the legalities of your actions, you should also be thinking about your ethical responsibility in cyberspace. Yes, even in cyberspace (especially in cyberspace), you should be thinking about the ethical implications and ramifications of your actions. As practitioners on the frontlines, you are individually, if not collectively, shaping and sometimes chipping away at the very edges of what may one day pass for the ethical status quo. Put another way, your collective hands are on the lid to Pandora’s box. What is unthinkable today may be happening tomorrow, thanks to the cutting of ethical corners or failing to do the right thing.
Ethics in cyberspace is a relatively new area for the legal ethicist. Most ethicists aren’t practitioners and therefore don’t often deal with issues concerning deception in the context of network defense. Their focus is largely on the protection of privacy of the individual.
Once you move to the realm of network defense, you are dealing with adversaries who by law are not where they are supposed to be. In almost every instance, the intruder made his way into the network illegally by essentially trespassing.
There is a very well-developed legal framework to deal with intruders, and as one of the “good guys.” your responses are bound by that framework. You can expect to work closely with legal counsel to ensure that your operation is legal, but it is still somewhat rare to have discussions about the ethical implications of your actions with legal counsel. But this does not mean that there are no ethical consequences to your actions. Even if your specific operation does not push ethical boundaries, taken collectively, the actions of you and your colleagues just may.
It would be easy to take the position that as long as it’s “legal,” you don’t need to give any thought to ethical ramifications. You can imagine how this could lead to a less comfortable future for all of us. In this context, lessons learned from the kinetic world (armed conflict) are insightful. Depending on your age, the only armed conflict that has happened in your lifetime may be asymmetric, characterized by combatants not in uniform, without allegiance to a nation state and who don’t play by the rules of armed conflict. In the recent past, we’ve seen the law grapple with the difficulties of dealing with enemy combatants (such as struggling with the definition of an enemy combatant), to dealing with torture and questions of jurisdiction for prosecution of their alleged crimes. Up until this time, the law of armed conflict was well settled with regard to the treatment of combatants. Politics aside, asymmetric warfare forced national leadership to address these legal issues, sometimes with less than ideal results, particularly from an ethical perspective.
For the Department of Homeland Security—with its responsibility for the .gov infrastructure, United States Cyber Command (USCYBERCOM), and .mil infrastructure, and the recognition of the “responsibility void” with regard to the .com infrastructure—dealing with asymmetric or patriotic hacker threats presents many of the same dilemmas and impediments. Probably more than any other obstacle, the problem of attribution has served to impede the resolution of the central ethical dilemma regarding transnational persistent threats. It will be difficult indeed to address attribution in a vacuum devoid of ethical consequences. When dealing with adversaries who are not bound by our rules, but rather wish to exploit those rules, it may be tempting to want to loosen our ethical constraints, if not laws, to more squarely address the adversary. This tension is always present, especially when blending or merging legal authorities. Even if you work exclusively in the private sector, you need to remain aware of this tension and how your actions may impact this balance.
Conclusion
This chapter provided points of consideration to the IT/cyber professional on how to be a better client to a lawyer charged with the responsibility for providing legal advice and guidance regarding proposed or pending operations. The legal landscape of cyberspace is a dynamic and seemingly ever-changing environment. For those who are not lawyers, knowing the information about your operational strategies and plans of value to your lawyer can significantly reduce the amount of time needed to understand the legal options and ramifications of your operations.
Learning to communicate more effectively (precision and clarity) with your lawyer is an important first step. You would do well to explain technical jargon and terms in the plainest possible language, while asking questions about aspects of the law that are not clear. It can be just as confusing for a lawyer trying to speak geek. Remember that you are gathering background information in preparation for working with counsel, not to replace the lawyer. This is not to suggest that you can’t have a productive working relationship with a lawyer if you have not done extensive background research on the relevant legal issues. A happy medium is probably the best approach.
If you have a general sense of the law, it can be of value in developing strategies and plans to address your operational needs and requirements, especially if you do the development work in collaboration with your lawyer. Most lawyers would prefer to be involved from the beginning stages, to ensure legal compliance, rather than be handed the operational plan at the eleventh hour.
Probably the most efficient way to stay on top of legal issues in IT and the cyber realm is to follow one of the many blogs and websites dedicated to that area of the law. From there, if you need to research laws that are specific to your planned operation, a reasonable review of applicable state and federal law is prudent. Of course, cyberspace transcends international boundaries, and can involve international law and treaties. Being familiar with applicable laws as they relate to your planned operation is a good idea, and doing legal research can be helpful; however, it is ultimately the lawyer’s job to understand and navigate this complex terrain.
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