7 vertical choice 2 international intervention the

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identify the true author of any attack, making real or cyberspace retaliation difficult. 7. Vertical Choice 2: International Intervention The discussions in parts 4, 5 and 6 illustrate some of the reasons why states may determine to cooperate with one another to address cyberterrorism. This part discusses some possible international legal and international organizational tools available to effect cooperation, drawing from examples in cybercrime, terrorism financing, and maritime security. a. Use of Analogs and Precedents This paper explores analogies to other areas of international cooperation. However, there has been a debate among academics as to whether the internet is exceptional or unexceptional in terms of its susceptibility to regulation. This debate challenges the possibility of analogical reasoning applied to cyberspace. While this debate has some interest, there is no reason to choose between the exceptionalists and the unexceptionalists in connection with cyberterrorism. There is both continuity and change in the adoption of new technologies; our question is how continuing concerns apply to new contexts, and how existing policies and mechanisms address those concerns. While there is no need to reinvent the wheel, we must be sensitive to new concerns and the need for new policies. From their first days in law school, budding lawyers learn to analogize and to distinguish. And it is true that the law of the internet, like the law of the horse, 47 may be understood as simply an amalgam of law that is generally, or functionally, applicable: the tax law of the horse or the internet, the property law of the horse or the internet, the procedural law, etc. There is no doubt that much in the cybersecurity problem is analogous, both substantively and doctrinally, to pre-existing problems. 48 And those pre-existing problems have pre-existing solutions. It would be foolish to argue that we can learn nothing from analogs. However, it would be equally foolish to argue that there is nothing different about cyberspace and cybersecurity, or that existing solutions are presumptively sufficient. The differences may be characterized at least partially as differences of 47 Frank H. Easterbrook, Cyberspace and the Law of the Horse , 1996 U. C HI . L EGAL F. 207 (1996). But see Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach , 113 H ARV . L. R EV . 501, 502 (1999) 48 See, e.g., Joel P. Trachtman, Cyberspace, Sovereignty, Jurisdiction and Modernism , 5 Indiana J. G LOB . L EGAL S TUDIES 561 (1998).
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Global Cyberterrorism, Jurisdiction, and International Organization 29 degree: of velocity and of volume, and of human behavior induced by these initial differences. At what point do differences of degree become differences of quality? This is not a well-posed question—the aptly posed question is when do these differences merit a different response? And it is important to note a degree of comparative law path dependence. Not every society will require the same response, nor will every society require a response at the same time. This is a source of asymmetry even among states with the same fundamental goals.
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