D factors relating to the control and jurisdiction

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d. Factors Relating to the Control and Jurisdiction Over the Network and the Attacker Once the nature of the network and the threat against it is understood, it becomes important to evaluate issues of control: do the decision-makers regarding protection have appropriate incentives to take efficient protective action? i. Whose network? Cyberterrorism may involve threats to either government networks or private networks. The point is that cyberterrorism is not by any means limited to attacks on government. In fact, with critical infrastructure largely in the hands of private actors, cyberterrorism attacks on critical infrastructure will largely involve attacks on private networks. Therefore, protection against cyberterrorism will require protection of private networks, raising the question of whether private actors have sufficient capability and incentives to take appropriate precautions, or whether governmental intervention is required. ii. Which government? In part 5 below, we will assess from a theoretical standpoint the question of allocation of authority over cyberspace activities, with reference to cyberterrorism. In this section, we provide some of the factual aspects of control. Cyberspace is a global network. It involves many linked computers located around the world. Its hardware and software structure are relevant to the question of how different states or international organizations may exercise power—in legal terms, jurisdiction—over cyberspace. The original root file of top-level domains—the list of domain names and their translation to numerical IP addresses that is consensually accepted as definitive—is physically located in the U.S., on the server of a company named NSI-Verisign, in Virginia. 12 It is contractually under the control of the U.S. government. This is a source 11 But see [Picker paper in this book] 12 See Markus Mueller, Who Owns the Internet? Ownership as a Legal Basis for American Control of the Internet , working paper dated March 21, 2004, available at
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Global Cyberterrorism, Jurisdiction, and International Organization 10 of power over other governments that depend on the root file for their national domain names. Through ICANN (Internet Consortium of Assigned Names and Numbers), it is also a source of power over some of the most significant domains, like .com, .net, and .org. In other respects, the internet is not subject to centralized power. Rather, it is a “network of networks” by which packets of data are transferred from one computer on one network to another computer on the same network or on another network. The critical power points are “backbone providers” 13 and internet service providers, and the routers they operate. 14 The backbone, which is the means of transmission from one network to another, is provided by backbone providers to internet service providers. The backbones and local loops that form the physical conduits through which packets flow on the internet are subject to the jurisdiction of the state in which they physically exist.
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