Robert D. Williams · June 2011
79 GEO. WASH. L. REV. 1162 (2011)
This Article makes two related arguments: one descriptive and one normative. Descriptively, it contends that the use of computer networks in carrying out intelligence operations entails a blurring of the conceptual and legal distinction between intelligence collection and covert action. In light of this emerging reality, executive branch officials face an increasingly difficult choice of legal paradigms in conducting oversight of offensive intelligence operations, as well as in seeking to characterize and respond to cyber intrusions from a defensive standpoint. Normatively, the Article argues that, absent a legislative solution, the U.S. Government should adapt to this blurring of the legal lines by increasingly treating cyber intrusions as covert actions—even, in some cases, where the primary purpose of the operation is intelligence collection. This evolution in the practice and oversight of intelligence would serve as a check against the inherent uncertainty of consequences attendant to the use of cyberspace as a medium for clandestine intelligence operations. It would also account for the need to establish flexible and proactive deterrent options in a domain where traditional legal remedies are largely inadequate to manage the threats—and assets—of cyber exploitation and cyber attack.
