In recent years, cyberspace has turned into an arena of inter-state competition and conflict. Cyberattacks, pervasive electronic surveillance, data breaches, cyber espionage, strategic theft of intellectual property, data nationalization, and foreign interference efforts are becoming the new normal of geopolitics. These developments throw into relief that in the borderless digital world, what our government is doing vis-à-vis its adversaries and allies has a profound impact on our civil rights and (cyber)security. This, in turn, begs two questions: how much are these exercises of governmental power are constrained by the rule of law and democratic accountability? How much should they be? This article argues that to best analyze these questions, we must look outside the confines of the law and the constitutional structure of the government. In cyber, a different set of instruments largely shapes and constrains government power: international law, international politics, the architecture of cyberspace, and the private sector. Each of these instruments plays an important role in shaping cyber policy and ‘regulating’ government behavior; each has a dynamic relationship with the law, and each generates various costs and benefits.
This article seeks to make three main contributions: descriptive, explanatory, and normative. First, it provides a realistic account of how and to what degree governments are in effect constrained in their power to hack, spy, and generally wield their force in cyberspace. Second, it sheds new light on a longstanding debate. Since the early days of the internet, cyber theorists have debated what the rise of cyberspace means for the future of government power. While libertarian visions of cyberspace as a government-free zone have waned over the years, the crux of the debate remained intact as some scholars argue that we are entering an era of awesome state power while others predict its decline. This article explains the source of these conflicting narratives, showing how each of the four instruments has crosscutting effects: while they help keep the government in check in some ways, they empower it in others. And finally, this article argues that in order to better align government cyber power with basic principles of legality and democratic governance, the law and the governmental institutions that make and interpret it should utilize and manipulate these external instruments as means to check the Executive. This account opens new pathways for lawmakers and judges to rein in the cyber-Executive more effectively.
Meeting ID: 860 9662 4331