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42 Geo. J. Int'l L. 971 (2010-2011)
State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem

handle is hein.journals/geojintl42 and id is 979 raw text is: STATE RESPONSIBILITY FOR CYBER ATTACKS: COMPETING STANDARDS FOR A GROWING PROBLEM ScorrJ. SHACKELFORD & RICHARD B. ANDRES* At a time in which the unchecked sovereign authority of States is being challenged across many arenas, State responsibility remains a key component of international security. However, defining State responsibility in cyberspace has proven to be difficult given both the speed and anonymity of cyber attackers. Sponsoring States may, for example, incite groups to commit cyber attacks and then hide behind a (however sheer) veil of plausible deniability to escape accountability. This Article analyzes potential legal regimes of State responsibil- ity to help hold these State sponsors of cyber attacks more accountable, including the effective and overall control standards. Other lesser-known standards are also reviewed, including the governmental awareness and the sliding scale approach. These regimes are then applied to real examples of State sponsorship, from the Estonian cyber militia to cyber criminals in Africa, including instances of neutral States allowing their networks to be used for launching cyber attacks thus giving rise to problems of neutrality and distinction that is analyzed under the Law of Armed Conflict. The Article concludes by arguing for the adoption of a flexible standard of State responsibility for cyber attacks given the extreme difficulties involved with proving the identity of cyber attackers. TABLE OF CONTENTS I. INTRODUCTION ......................................... 972 * Scott J. Shackelford is an Assistant Professor of Business Law and Ethics at Indiana University, Kelley School of Business. He is a graduate of Stanford Law School, a Ph.D. candidate in international relations at the University of Cambridge, and author of the forthcoming book Cyber Peace: Countering Cyber Attacks in International Law, Business, and Relations, being published by Cambridge University Press. He wishes to thank his lovely wife, Emily, for all of her help and support, as well as his colleagues at Indiana University for their helpful comments including David Fidler and Fred Cate. He would also like to thank Evan Sarosi for his invaluable research support throughout this project, as well as the Indiana University Center for International Business Education and Research, the Center for Applied Cybersecurity Research, the Boren fellowship program, and the fantastic staff at the Institute for National Security Studies. Dr. Richard B. Andres is Professor of National Security Strategy at the U.S. National War College, and Senior Fellow and Chair of EESP at the Institute for National Strategic Studies at National Defense University. The views expressed in this article are those of the author and do not necessarily represent the official policy or position of the U.S. government. @ 2011, ScottJ. Shackelford and Richard B. Andres. 971

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