THE CYBER PRIVATIZATION PROBLEM: NAVIGATING THE LAW OF ARMED CONFLICT IMPLICATIONS OF OUTSOURCING OFFENSIVE CYBER OPERATIONS.

TABLE OF CONTENTS I. Introduction 598 II. Domestic and International Law Related to Private 600 Military and Security Contractors A. Inherently Governmental Function 600 B. Private Military and Security Contractors [...]
When it comes to warfare, cyberspace is the final frontier. To increase military operations in cyberspace, the federal government looks to private contractors to help modernize its capabilities. In 2016, U.S. Cyber Command awarded a five-year contract to several private contractors to aid in that modernization effort, which included development, delivery, and preparation of targeted offensive operations. However, the contractors' level of participation exposes them to lawful counterattacks because contractors may be designated as combatants under international law. These counterattacks may expand beyond cyber actions so long as they meet the principles of necessity and proportionality. To ensure that contractors are not classified as designated combatants, this Note proposes to (1) amend the Special Maritime and Territorial Jurisdiction Statute to include cyberspace, (2) define "inherently governmental function" to include tasks involved in the preparation or execution of combat operations, and (3) extend reporting requirements to include each cyber contractor's involvement in executed cyber operations. Together, these solutions will insulate contractors from crossing the threshold into being labeled as combatants in the context of adversary states' self-defense.