Civilians in cyberwarfare: Conscripts

Abstract

Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the targeted state than on invading its territory. Cyberattackers will probably target military computer systems, at least to some extent, but in a departure from traditional warfare, they will also target companies that operate aspects of the victim nation's infrastructure. Cyberwarfare, in other words, will penetrate the territorial borders of the attacked state and target high-value civilian businesses. Nation-states will therefore need to integrate the civilian employees of these (and perhaps other) companies into their cyberwarfare response structures if a state is to be able to respond effectively to cyberattacks. While many companies may voluntarily elect to participate in such an effort, others may decline to do so, which creates a need, in effect, to conscript companies for this purpose. This Article explores how the U.S. government can go about compelling civilian cooperation in cyberwarfare without violating constitutional guarantees and limitations on the power of the Legislature and the Executive.