Hollywood and the entertainment industry are not critical infrastructure. The cyber attack on Sony’s computer networks and data is not, yet, a matter of national security. The attack is also not a use of force or an armed attack, the prerequisites for use of military force in self defense under international law. Thus, talk of military retaliation is inappropriate. The attack on Sony’s computer networks and data is first and foremost a law enforcement issue. Of course, as with any major crime with nation state involvement, diplomatic and economic responses also are legal and appropriate. The language of “proportional response” used recently by some U.S. Government officials echoes military terminology. It should not.
The U.S. has the legal tools to prosecute hacks and digital thefts like what happened to Sony. The crimes created by Congress are very broad and powerful, and Congress has made them applicable world-wide. The indictment in May of five Chinese military hackers for computer hacking, economic espionage and other offenses directed at six American corporate victims shows that the U.S. is willing to prosecute even foreign military officers. In October, the Department of Justice reorganized to increase its ability to handle cases just like this, especially state-sponsored economic espionage. The forensic abilities to prove these cases are surprisingly good. The problem is getting the defendants physically into a U.S. courtroom. Extradition for state-sponsored crimes is almost never possible until there is a regime change, but the indictment alone can cause real problems for the persons charged, limiting their ability to travel or to hold wealth outside of their home country. The legal tools are very powerful, but practical barriers make it very hard to put handcuffs on these defendants. Nevertheless, obstacles to prosecution do not legally elevate economic crime to warfare.
– Professor William C. Snyder
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