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to protect submarine cables.  Modern communications law is crafted by the International Telecommunications Union (“ITU”), a specialized UN Agency for information communication technologies.114  Article 35 of the ITU Charter prohibits “harmful interference” defined in Annex 2 as “interference which endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radio communication service operating in accordance with the Radio Regulations [emphasis added].”115  This passage could be used to hold those states that use cyber attacks to “endanger…safety services” responsible under international law.  “Safety services” conceivably includes public services such as health, police, and public transport, all of which are sectors vulnerable to cyber attacks.  Though, the lack of mandatory enforcement mechanisms limits the ability of this regime to hold states accountable.

There are also provisions giving governments wide discretion in regulating private activity that may appear dangerous to the security of the State.116  This includes “cut[ing] off any private telecommunications which may appear dangerous…or contrary to state laws, to public order, or to decency.”117  Unlike space law or the ATS, Article 38 does have an exception for military activities,118 but does not specify how the treaty applies during “armed conflict.”  Since the British cut the five submarine cables serving Germany in the days following the outbreak of WWI, communications facilities have been regarded as priority military targets.119  State practice though asserts that these

114 See ITU website: http://www.itu.int/net/about/index.aspx.  Last visited: Feb.  24, 2008.

115 ITU Charter, Art. 35.  

116 DOD, supra note 33.

117 ITU Charter, Art.  19.

118 ITU Charter, Art.  38.

119 DOD, supra note 33.

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