Last week Rep. Himes (D,CT) introduced HR 5220,
the Cyber Act of War Act of 2016. This bill is very similar to S
2905 that was introduced earlier last week. A minor wording difference
could result in significantly different consequences.
Differences
The only significant difference between the two bills is found
in four words in §2(a)(1).
The Senate bill requires the President to develop a policy for “determining
when an action carried out in cyberspace constitutes an act of war against the
United States”. The House version substitutes ‘a use of force’ for the words ‘an
act of war’. The House version allows the US government much more leeway in how
it would be expected to reply to the base cyberspace action by an adversary.
Moving Forward
Neither Himes, or his co-sponsor {Rep. Westmorland, (R,GA)}
is a member of either the House Foreign Affairs Committee or the Armed Services
Committee. Thus it is unlikely that either committee will take up consideration
of the bill.
The House version of this bill would be more likely to be
passed by Congress because it provides much more leeway in the expected
response to serious cyber attacks. It is, however, unlikely that the bill would
ever make it to a committee vote, much less a vote before either body.
Commentary
This version of the bill is a much less strident political
message and seems to be less of an attempt to specifically make President Obama
look bad. It appears to be a more reasonable attempt to address the place of
cyber-attacks on the homeland within the conventional force response playbook
of the United States military. The inclusion of the Armed Services Committee in
the list of considering committees reflects this fact.
Still this bill is unnecessary as the current version of the
Law
of War Manual already adequately addresses this policy issue.
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