The Fourteenth Annual Sommerfeld Lecture: The Wrong Questions About Cyberspace

AuthorGary D. Brown
PositionColonel (Retired), U.S. Air Force
Pages214-233
214 MILITARY LAW REVIEW [Vol. 217
THE FOURTEENTH ANNUAL SOMMERFELD LECTURE1
THE WRONG QUESTIONS ABOUT CYBERSPACE
GARY D. BROWN*
If they can get you asking the wrong questions, they don’t have to worry
about answers.
_Thomas Pynchon, Gravity’s Rainbow2
* Colonel (Retired), U.S. Air Force. Colonel Brown recently retired from a twenty-four-
year career as U.S. Air Force Judge Advocate, culminating in his assignment as the first
Staff Judge Advocate (SJA), U.S. Cyber Command (USCYBERCOM), Fort Meade,
Maryland. The U.S. Cyber Command is responsible for planning and conducting
operations in and through cyberspace, as well as operating and defending Department of
Defense (DoD) cyber networks.
Before his assignment at USCYBERCOM, Colonel Brown served five tours as a
SJA or Senior Legal Advisor at the Combined Air Operations Center, Southwest Asia,
Senior Officials Directorate, Air Force Inspector General’s Office, 20th Fighter Wing,
Shaw Air Force Base, South Carolina; 422d Air Base Squadron, Royal Air Force,
Crouhton, England; and 363d Air Expeditionary Wing, Prince Sultan Air Base, Saudia
Arabia. He also served as Chief of International and Operational Law at the U.S.
Strategic Command and in installation legal offices at Howard Air Force Base, Royal Air
Force, England and Whiteman Air Force Base, Missouri.
Colonel Brown is a prolific author and speaker. His work has appeared in the
Military Law Review, Naval Law Review, Military Review, Journal of Military Ethics,
JAG Magazine, Strategic Studies Quarterly and Joint Force Quarterly. He wrote the first
chapter on cyber operations for Air Force Operations and the Law, a publication similar
to The Judge Advocate General’s Legal Center and School Operational Law Handbook.
He frequently presents on cyber issues to military and civilian audiences. He was the
keynote speaker at cyber conferences at Berkeley and George Washington University
during the past year, in additional to presentations at many other events.
His military decorations include the Defense Superior Service Medal, Bronze Star
Medal, Defense Meritorious Service Medal, Meritorious Service Medal (with three oak
leaf clusters), and addition expeditionary medals. In 2001, the Air Force selected him as
the Albert M. Kuhfeld Outstanding Young Judge Advocate of the Year, and in 2012
honored him with the Thomas P. Keenan, Jr. award for his superior contributions to the
development of international law and military operations. Upon retiring from the Air
Force, he joined the Washington Delegation of the International Committee of the Red
Cross as the Deputy Legal Advisor, where he provides advice on the protection of
civilians in armed conflicts, customary international law, new warfare technologies and
the scope of the battlefield, among other areas.
1 Established in 1999, the Sommerfeld Lecture series was created at The Judge Advocate
General’s Legal Center and School to provide a forum for discussing current issues
relevant to operational law. The series is named in honor of Colonel (Ret.) Alan
Sommerfeld. A graduate of the 71st Officer Basic Course, Colonel Sommerfeld’s Army
judge advocate career was divided between the Active and Reserve Components. After
six years of active duty, he became a civilian attorney at Fort Carson, Colorado, and then
2013] FOURTEENTH SOMMERFELD LECTURE 215
I. Introduction
One of the first things to learn as one enters the field of cyber law
and policy is that there are two ways to look at cyberspeed. On one
hand, things happen fast. Packets of data travel incredibly rapidly and
the machines that make up the Internet react almost instantly. This kind
of speed defies description and human understanding. For example,
information traveling through the Internet can make a round trip between
the United States and Europe in about 70 milliseconds, or around
fourteen times in a second. That means that in the time it takes you to
read this sentence, it can cross the Atlantic 140 times. When it comes to
Internet speed, superlatives lose their meaning; we can just say “fast.”
On the other hand, when we talk about cyber policy and law, rather
than a cyber operation that has been launched, “cyberspeed” is
fundamentally different. In 1998, the U.S. government officially made
critical infrastructure protection a national goal and set out a strategy for
cooperation between the government and the private sector to protect
systems essential to the nation’s security.3 Sadly, fifteen years later,
implementation of a plan to defend critical infrastructure is still pending,
although the threat to it has increased. In 2013, the height of cyber
policy achievement is an Executive Order and a Presidential Policy
Directive that both, at their heart, say U.S. government agencies should
cooperate among each other and private industry to ensure the nation’s
cyber security. The cyber provisions of the Standing Rules of
Engagement for the Department of Defense (DoD), due for an update by
2010, were still incomplete as of the date of this writing.4 Classified
Presidential Policy Directive (PPD) 20, as reported by the Washington
at the Missile Defense Agency. He continued to serve in the Army Reserve, and on
September 11, 2001, Colonel Sommerfeld was the Senior Legal Advisor in NORAD’s
Cheyenne Mountain Operations Center, where he served as the conduit for the rules of
engagement from the Secretary of Defense to the NORAD staff. He was subsequently
mobilized for two years as a judge advocate for Operation Noble Eagle and became a
founding member of the U.S. Northern Command (USNORTHCOM) legal office, where
he served as its Deputy Staff Judge Advocate and then interim Staff Judge Advocate. He
retired from the Reserves in December 2003.
2 Thomas Pynchon, Gravity’s Rainbow, V262 (1973).
3 PRESIDENTIAL DECISION DIR./NSC 63, CRITICAL INFRASTRUCTURE PROTECTION (May
22, 1998).
4 Amber Corrin, Cyber Rules of Engagement Still Unfinished, FCW (Nov. 1, 2012),
http://fcw.com/Articles/2012/11/01/cyber-rules-of-engagement.aspx?Page=1.

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