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University of New South Wales at the Australian Defence Force Academy (UNSW Canberra)

Northcott Drive

Building 32 SR05

Campbell, ACT 2612

Australia

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The Tallinn Manual 2.0 (Rule 100) states that "an attack on data per se does not qualify as an attack" under the law of armed conflict.

The manual notes: "the majority of the International Group of Experts agreed that the law of armed conflict notion of 'object' is not to be interpreted as including data, at least in the current state of the law. In the view of these experts, data is intangible and [does not fall] … within the “ordinary meaning” of the term object… therefore, an attack on data per se does not qualify as an attack’.

How sustainable is this reasoning for the future? As the Tallinn manual goes on to note, data might be considered a military object where an attack on data ‘affects the functionality of cyber infrastructure or results in other consequences that would qualify the cyber operation in question as an attack.’ Similarly, as other experts argued, it is surely vital that – at the very least – significant civilian data sets (social security, tax records, bank accounts) should at the very least be classified as civilian objects so that they do not fall into the legal void of non-object and thus fall outside of LOAC regulation. How, then, should LOAC deal with: Weaponised data - data as the key component in an IO with kinetic effects; and data as the military asset in intelligence lead operations? This talk, by Professor Rob McLaughlin, shall attempt to engage with these questions in order to ask whether the current view of data per se as incapable of characterization as a military object is sustainable.

Prof Rob McLaughlin is Director of UNSW Canberra: Conflict + Security. He was previously at the ANU College of Law, Head of the UNODC Global Maritime Crime Program, and a Seaman and Legal Officer in the Royal Australian Navy. His specialties are LOAC and maritime operations law.

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University of New South Wales at the Australian Defence Force Academy (UNSW Canberra)

Northcott Drive

Building 32 SR05

Campbell, ACT 2612

Australia

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