The Crystal Gavel (TM) is CyberLaw’s series of publications dealing with the nexus of future technology and the law. The sample publications below may be of interest to CyberLaw clients and anyone wondering what the future may bring as technology continues to evolve and impact society.
To See Today’s Topics of Interest, Click Here.
For more detailed publications providing in-depth coverage of issues, please see below for summaries and links to the full articles.
DATA BREACH CLASS ACTION UPDATE
In eyes of law, not all data breaches or losses are the same. The class action survived Marriott’s Motion to Dismiss. Plaintiffs have standing because based on alleged motive behind the theft and actual misuse of the data, they adequately alleged Injury-In-Fact in the form of losses from identity theft, imminent threat of identity theft, costs spent mitigating the harms from the data breach, loss of the benefit-of-their-bargain, and loss of value of their personal information. The case is proceeding to discovery on alleged elements of negligence, breach of contract and several state statutes including MPIPA and MCPA. While this ruling covers the threshold to bring viable litigation versus proving a case, it opens up the possibility for proliferation of future lawsuits in response to the growing number of data breaches.
FBI vs Apple
In early August 2017, Apple CEO Tim Cook declared “we obey the laws where we do business,” explaining his decision to adhere to the Chinese government’s demands to remove access to privacy enhancing applications. It was an interesting twist given the vociferous campaign that the company and its allies waged against the U.S. government last year. It’s worth taking a closer look at what really happened in the case of Apple vs. FBI and why it still matters today in the ongoing struggle between privacy and security.
Developing a strategy for cyber conflict
History teaches the importance of developing the right strategy to adapt to a changing situation on the world stage. At the dawn of the last century, a significant shift in the global balance of power began to emerge. Germany’s power was rising, but it still faced significant rivals on both her Eastern and Western borders. The Schlieffen Plan was developed as a strategy to meet this challenge and was put to the test in World War I. The strategy called for Germany to leverage its military and infrastructure strengths to rapidly mobilize and concentrate forces to quickly defeat the French army on one front before shifting east to face the Russians. The strategy failed and the results were catastrophic. Almost ten million soldiers died in that war, far exceeding any conflict to date, and the unresolved struggle soon led to another war, which was even more devastating.
Now, in the early 21st century, the United States is the sole global superpower, but new concerns require non-linear extrapolation to develop a strategy to overcome current and future adversaries. In particular, the emergence of the cyberspace domain presents unprecedented opportunities and challenges for national security. Nations around the world have begun to recognize the significance of this dynamic, but the United States has the most at stake due to its premier position. With this in mind, U.S. Cyber Command is in the process of training and deploying a cyber force. But to optimize that force, the right strategy is needed.
This paper explores the question, “How do we develop the right force optimization strategy for cyber conflict?” It is important to invest time and effort to work through the concepts because the stakes are enormous. The first issue to address is the significance of conflict in cyberspace, not just as an aspect in the evolution of modern warfare, but as an integral element of today’s society and world. Within this context, optimal approaches for conducting cyber warfare are explored, including the best ways to posture and utilize the cyber force. Ultimately, a risk management approach is proposed to allow for leverage against many unknown factors. In the absence of hard-earned lessons learned through full-scale conflicts, simulation, exercises, and war games become the vital ingredients for developing successful strategies. But these tools can only go so far—the objective strategy may require a significant restructuring and rebalancing effort. The scale of the change seems daunting, but as cyber conflict transcends military conflict, the change should be dealt with in a revolutionary manner that does not underestimate the growing importance of cyberspace in global affairs.