physical world, cyberspace is an abstract reality of ideas, information, and logic. A cyber attacker entering this domain can anomalously shed ties of citizenship and cross sovereign boundaries without a trace, all the while masquerading as a real or fictitious entity.75 Subsequent efforts to determine exactly which physical locations a virtual entity traversed are exceedingly difficult. There are no physical wires or devices that can be easily identified as the “circuit” carrying a particular cyber transaction (though submarine cables may provide a useful analogue), while current information systems are designed to have as many alternates and redundancies as possible to enhance reliably.76 Though hardware is physically rooted in sovereign jurisdictions, the information contained in these systems and the software that controls them is not. An attacker is not physically present, except in the form of anonymous, invisible radio waves or electrons.77 As cyberspace is increasingly being used to harm sovereign interests through offensive cyber weapons, the effects principle dictates that cyber security should “become an element of national strategy and a matter for political negotiation between sovereign entities.”78
Yet even if sovereignty can be established over portions of the information commons through international negotiations,79 it is very difficult to attribute a particular computer network attack (“CNA”) to a foreign state despite it being legally permissible to do so under the effects principle for the reasons outlined above. Article 2(4) of the UN
77 DOD, supra note 33.
79 The purpose of international political theorizing is to understand, explain, and predict international outcomes resulting from interactions among sovereign entities. Classical theorists such as Boden and Hobbes have shaped sovereignty to advocate an urgent need for international order, influencing centuries of international relations to follow. This dialogue endures. The Temple of Westphalia has been eroded by acid rain, flooded by rising waters, made porous by free information flows and the ever increasing rate of economic interdependence; but it remains standing. The intersection of the two, as stated by Rosalyn Higgins, is the domain of law. Rosalyn Higgins, Terrorism and International Law 265 (1997).