Inc. the court held that vicarious liability existed because the defendants had control over direct infringers of U.S. law, and it had a direct financial interest in the infringing activity.127 Together, these cases place the onus of on the private sector, which largely controls the internet, by policing its managed infrastructure so as to lessen the potential for damaging cyber attacks. In doing so however, companies (notably internet service providers) cannot be overzealous and block innocent websites as this would violate the first amendment and activate intermediate scrutiny according to the court in Ctr. for Democracy & Tech. v. Pappert.128 Nor do companies have secondary liability for providing internet services if they have no knowledge of the violation or infringement, as the court held in Hendrickson v. eBay, Inc.129
In addition to case law, several U.S. criminal statutes could also be used as a rubric for cyber attacks. For example, the U.S. has passed felony statutes criminalizing violation of international accords dealing with international radio or wire communications.130 Maliciously interfering with satellite transmissions is a felony in the U.S.,131 similar to wire fraud.132 These statutes could be expanded to include external and internal cyber attacks that do not reach the level of an armed attack. In this way, the U.S. terrorism statutes, which define terrorism as “committing acts constituting crimes under the law of any country to intimidate or coerce a civilian population; to influence
127 Fonovisa v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996).
128 Ctr. for Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004).
129 Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Cal. 2001).
130 See 47 USC 502 (stating that “Any person who willfully and knowingly violates any rule, regulation, restriction, or condition…made or imposed by any international radio or wire communications treaty or convention, or regulations annexed thereto, which the United States is or may hereafter become a party, shall, in addition to any other penalties, provided by law, be punished, upon conviction thereof by a fine of not more than $500 for each and every day during which such offense occurs.”).
131 18 USC § 1367.
132 18 USC. § 343.