680 CAPITAL UNIVERSITY LAW REVIEW [43:679
modern warfare—cyberspace.1 Unfortunately, however, scenarios of this
variety no longer solely play out in imaginary cyber-towns or fantastical
Hollywood screenplays; the recent rise in real-world implementation of
these types of attacks continually expose the delicate vulnerabilities in both
national infrastructures and private industries.2
United States policy makers, law enforcement agencies, and military
branches continue to recognize this evolving threat to our virtual borde rs.3
In 2005, the Air Force expanded its mission statement to read, “to fly and
fight in air, space , and cyberspace.”4 In early 2009, the assistant director of
the FBI’s cyber division ranked cyber-attacks as the third most su bstantial
risk to national security, just behind nuclear war and weapons of mass
destruction.5 In 2011, the Department of Defense moved towards a
comprehensive cyberspace policy when it published its strategy for
operating in cyberspace.6 In February 2013, President Obama nominated
the head of the Navy’s Cyber Command as the next director of the National
Security Agency (NSA).7
Obama’s nomination of a cyber-expert to head the NSA comes as no
surprise to those following the recent heightened focus on the development
of cyber-operations. Preceding the President’s NSA nomination, U.S. focus
on cyber policy peaked in October of 2012, when President Obama issued
Presidential Policy Directive 20 (Directive).8 The unpublished Directive,
leaked in June of 2013, contains measures to strengthen America’s offensive
and defensive cyber capabilities, including orders for intelligence officials
1 See Robert O’Harrow Jr., CyberCity Allows Government Hackers to Train for Attacks,
WASH. POST, Nov. 27, 2012, at A1.
2 Id. at A6.
4 Major Arie J. Schaap, Cyber Warfare Operations: Develo pment and Use Under
International Law, 64 A.F. L. REV. 121, 131 (2009) (emphasis added).
5 Id. at 123.
6 See Department of Defense Strategy for Operating in Cyberspace (July 2011),
7 Michael F. Cochrane, Next NSA director knows cyber warfare, WORLD (Feb. 3, 20 14,
2:12 PM), http://www.worldmag.com/2014/02/next_nsa_director_knows_cyber_warfare.
8 Obama tells intelligence chiefs to draw up cyber target list – full document text,
GUARDIAN (June 7, 2013, 3:07 PM), http://www.theguardian.com/world/interactive/2013/
jun/07/obama-cyber-directive-full-text. [hereinafter The Directive].