2022 Conference on International Cyber Security| 8-9 November 2022
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Panel 1

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International Law and Norms: Enduring Cyber Dilemmas

Amaris Trozzo

Amaris Trozzo is an evening student at Georgetown Law expecting to graduate in February 2023. Amaris recently completed a Summer Law Clerk program with Pillsbury Winthrop Shaw Pittman LLP in Washington, D.C. Previously, she worked at an energy trade association where she tracked congressional activities, covered hearings, and provided commentary on draft legislation related to climate change, infrastructure, and cybersecurity. This encouraged her interest in national security and foreign relations, which she will continue to explore in her final semester of law school and post-graduation.

Prior to starting her career in the energy sector in 2018, she served as a paralegal for Wiley Rein LLP in the international trade department. She has an undergraduate degree in International Affairs from The George Washington University. Amaris has lived in Washington, D.C. since 2013.

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Abstract

Keynote

Pushing the Envelope in Cyberspace: Recommendations for National Security Lawyers as They Set Normative Behavior in Offensive Cyber Operations

Application of U.S. law in offensive cyber operations has remained unclear despite increased activities both domestically and internationally. Because of the United States’ role in norm creation through its behavior in cyberspace, national security lawyers must keep in mind the influence their decisions will have in creating the legacy for future cyber operations. This paper recommends a series of questions to guide national security lawyers as they address operations that fall outside of clearly defined legal markers. The recommendations are founded in promoting the “best view” theory of legal consultation. This theory dictates that lawyers should orient themselves as always moving towards the best legal advice that can be offered. However, this paper wrestles with the reality that the “best view” in cyberspace is incredibly difficult to define. “Pushing the envelope,” encouraging lawyers to broaden the scope of legal reasoning to encompass the authorization of a necessary operation, is dangerous in a setting where norms are actively being created through state behavior regardless of the state’s intent in setting such precedent.

The questions raised in the paper consider how international legal principles (both those established and currently debated) are implicated by the proposed operation; whether U.S. action should be directed by the Executive alone or with Congress; whether the operation and its decision-making process, including the legal opinion authorizing the operation, should remain confidential; and finally what stakeholders or interest groups should be consulted when reviewing authorizing offensive cyber operations. Ultimately, the paper seeks to encourage a dialogue between national security lawyers to determine how the United States will act in cyberspace which contributes to the international development of normative behavior in offensive cyber operations.