Despite mounting concern about cyber attacks, the United States has been hesitant to embrace retaliatory cyber strikes in its overall defense strategy. Part of the hesitation seems to reflect concerns about limits imposed by the law of armed conflict. But analysts who invoke today's law of armed conflict forget that war on the seas has always followed different rules. The historic practice of naval war is a much better guide to reasonable tactics and necessary limits for conflict in cyberspace. Cyber conflict should be open-as naval war has been-to hostile measures short of war, to attacks on enemy commerce, to contributions from private auxiliaries. To keep such measures within safe bounds, we should consider special legal constraints, analogous to those traditionally enforced by prize courts.
Rabkin, Jeremy and Rabkin, Ariel
"Navigating Conflicts in Cyberspace: Legal Lessons from the History of War at Sea,"
Chicago Journal of International Law:
1, Article 7.
Available at: http://chicagounbound.uchicago.edu/cjil/vol14/iss1/7