Eric Talbot Jensen, 𝘊𝘺𝘣𝘦𝘳 𝘞𝘢𝘳𝘧𝘢𝘳𝘦 𝘢𝘯𝘥 𝘗𝘳𝘦𝘤𝘢𝘶𝘵𝘪𝘰𝘯𝘴 𝘢𝘨𝘢𝘪𝘯𝘴𝘵 𝘵𝘩𝘦 𝘌𝘧𝘧𝘦𝘤𝘵𝘴 𝘰𝘧 𝘈𝘵𝘵𝘢𝘤𝘬𝘴, 88 Tᴇx. L. Rᴇᴠ. 1533 (2009).
Ninety-eight percent of all U.S. government communications travel over civilian-owned-and-operated networks. Additionally, the government relies almost completely on civilian providers for computer software and hardware products, services, and maintenance. This near-complete intermixing of civilian and military computer infrastructure makes many of those civilian objects and providers legitimate targets under the law of armed conflict. Other civilian networks, services, and communications may suffer collateral damage from legitimate attacks on government targets. To protect those civilian objects and providers from the effects of attacks, the law of armed conflict requires a state to segregate its military assets from the civilian population and civilian objects to the maximum extent feasible. Where segregation is not feasible, the government must protect the civilian entities and communications from the effects of attacks. The current integration of U.S. government assets with civilian systems makes segregation impossible and therefore creates a responsibility for the United States to protect those civilian networks, services, and communications. The U.S. government is already taking some steps in that direction, as illustrated by a number of plans and policies initiated over the past decade. However, the current actions do not go far enough. This Article identifies six vital actions the government must take to comply with the law of armed conflict and to ensure not only the survivability of military communication capabilities during times of armed conflict, but also the protection of the civilian populace and civilian objects.
88 Tex. L. Rev.
Texas Law Review