Title

Seeing and Connecting the Dots: Legal Challenges to Countering Foreign Cyberattacks Launched from Within U.S. Domestic Cyberspace

Contributing USMA Research Unit(s)

Army Cyber Institute

Publication Date

Fall 10-27-2022

Publication Title

North Carolina Journal of Law and Technology

Document Type

Article

Abstract

Last year, General Nakasone, Commanding General of Cyber Command, testified to Congress that the foreign adversaries who conducted the SolarWinds hack utilized U.S. domestic cyberspace (consisting of leased Amazon Web Services cloud servers). They did so in order to evade Cyber Command detection due to legal restrictions on Cyber Command operations in U.S. cyberspace. In the words of General Nakasone, our adversaries “exploit[ed] a gap.” As a result, he stated “It’s not that we can’t connect the dots. We can’t see all the dots.” This tactic and potential methods of addressing this gap raise serious concerns, from the perspective of the 4th Amendment, FISA and the Executive Powers. This article examines each of these three legal lenses and their intersections as applied to this new tactic and concludes with considerations for lawmakers to address in attempting to resolve this challenge.

First Page

84

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