The Lawless Web

 

– By Taylor Horn

The American news cycle has been flooded with issues of cyber and telecommunications spying for months—something I’ve already commented on here. Much of the public debate and outrage has held it impossible to comprehend how our intelligence agencies stepped so far over what we average citizens may have regarded as the “line.” In reflexive airing of indignation, many have missed how we arrived at such an impasse. Our intelligence agencies, and our defense infrastructure more generally, have faced ever-increasing demands to adapt old methods of war and security to new realities of Internet and telecommunications technology. A necessary public debate, largely being supplanted by angry calls to restrain the NSA, is how we adapt our conceptions of war, states, and security to the changing environment of an increasingly technological world.
In 1899, and again in 1907, the Hague Conventions laid the groundwork for the modern system of International Humanitarian Law (IHL), which has since been a bedrock principle for the conduct of warfare between state armies. From IHL, we get three important principles of proportional response, necessity, and distinctiveness. Though all these principles have an extensive, specific legal framework underpinning them, a quick summary is that military action must be:

1. Necessary to achieve a military objective (Necessity)

2. Proportionally weigh civilian and unintended casualties (Proportional Response)

3. Carried out by soldiers who distinguish themselves from the general population (e.g. wearing uniforms and carrying weapons in plain sight) (Distinctiveness)

The war on terrorism has often been criticized as being impossible because terrorism is an idea. At the very least, terrorists do not conform to any of these standards, which were originally created to ensure that militaries of the world did not unwittingly attack or compromise the lives of the average citizen in their pursuit of soldiers.

Could anything sound more like the situation we find ourselves in today? The NSA argues that it must sweep up a great deal of data on regular peoples’ cell phone and telecommunications records because this is the only way it will be able to detect the anomalies it looks for. Essentially, they are articulating the old idea of proportionality, mentioned above, may not hold water in the online world. How do we define a proportional response or action in the online world? Are those citizens whose data is collected and simply warehoused “casualties” of military action in any real sense? With technology developing so quickly, is it possible that any definition of necessity in military action could stay constant over a period of even five years?

The third principle of IHL is perhaps the one which intuitively seems the most relevant to this conversation. The exact strategic applications of the Internet in the world of security are perhaps less well understood. A recent Time Magazine article, “The Secret Web,” does a great job of chronicling the real-world implications of the Internet.

Most of us have come to think of the Internet in terms of social media, where there is some degree of anonymity, but it is easy enough to trace comments back to their true source. However, “The Secret Web” tells the story of a Navy invented program called the Deep Web, a network of special “Tor” Internet servers. Once the user has passed a special login, “Tor” networks bounce their IP address between IP routers around the world. This makes it possible to conceal the user’s geographic location, and, as such, their identity, with near one-hundred percent effectiveness. This is an important platform for intelligence and police sting operations, but has grown into an equally useful platform for drug dealers, hit men, and the rest of the criminal underworld.

How can we begin to adopt a notion that “soldiers” must distinguish themselves in such an environment? And without such potential for clean and definitive targeting, how can those tasked to protect our increasingly wired society be expected to do so without compromising some law-abiding citizens’ privacy?

Since 9/11, we have seen the dangers of going to war with unclear definitions of victory, goals, and exactly whom we are at war with. Security mobilization without specificity can step on legitimate citizens’ rights, compromise moral authority, and affect our military capabilities.

All this, in my mind, makes the case for the necessity of a new set of international treaties on the conduct of civilizations in electronic warfare. Of course, a main problem consistently cited is the increasing role of non-state actors in the same struggles. However, I think their compliance might be a secondary, but no less important problem. Any treaties must aim to clarify how the countries of the world maintain their values and protect their security in this new age. We cannot do so without a global debate on the new role of the state, the government, and the military when they are no longer supported by previous international bedrock.

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Taylor Horn is a first-year MSPPM student concentrating on international and security policy. He is currently an analyst in a startup focused on water issues and infrastructure. Prior to this Taylor has worked in international mediation, on political campaigns, and in academic research. He received a bachelor’s degree from Bard College at Simon’s Rock double majoring in Political Science and Theater.