infrastructure falling down by the second? For such a legal regime to be functional, the doctrine of state responsibility for cyber attacks would have to be restructured and sufficiently defined.
State Responsibility for Cyber Attacks
The speed and anonymity of cyber attacks makes “distinguishing among the actions of terrorists, criminals, and nation states difficult.”170 Simultaneously, the instances of state-sponsored terrorist acts have increased since the end of the Cold War.171 Proving state responsibility for such acts though is exceedingly difficult. As seen in the Estonian cyber attack, a sponsoring state may not cooperate in the investigation, apprehension, and extradition of those who acted on its behalf in committing criminal or terrorist acts. A nation-state might even be able to “conceal its involvement in self-interested cyber attacks by encouraging ‘civilian’ cybercriminals and cyberterrorists to conduct their operations from within its borders since the fog of ‘civilian’ cyberattacks would obscure the purpose and origins of the state-sponsored attacks.”172 Consequently should the cyber attack on Estonia be characterized as: a cybercrime, with Russian Nashi hackers orchestrating a coup; cyberterrorism by a group pursuing idiosyncratic ideological goals; or cyberwarfare, a virtual sortie by Russian
170 The White House, The National Strategy to Secure Cyberspace 19, 64 (2003), available at (“Cyber attacks cross borders at light speed...”); Brenner, supra note 40.
171 See, e.g., Christopher C. Joyner & Wayne P. Rothbaum, Libya and the Aerial Incident at Lockerbie: What Lessons for International Extradition Law?, 14 Mich. J. Int’l L. 222, 229 (1993) (“State-sponsored terrorism has emerged since the 1970s as a dangerous strain of international violence.”). But see Susan W. Brenner & Anthony C. Crescenzi, State-Sponsored Crime: The Futility of the Economic Espionage Act, 28 Hous. J. Int’l L. 389 (2006) (economic espionage as state-sponsored crime); Douglas R. Burgess, Jr., Hostis Humani Generi: Piracy, Terrorism and a New International Law, 13 U. Miami Int’l & Comp. L. Rev. 293, 302-03 (2006) (writing that sixteenth-century British government regarded piracy “in much the same way as state-sponsored terrorism is viewed today”). In the discussion above “state-sponsored crime” denotes state involvement in the commission of conventional crimes, such as the theft of intellectual property. Brenner, supra note 40.
172 Brenner, supra note 40.