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Recent news reports state that the National Infrastructure Protection Center of the FBI has warned that escalating friction between the United States and Iraq could lead to cyberattacks between both countries. This follows closely on the heels of reports that President Bush has executed a secret order permitting the U.S. government to promulgate guidelines pursuant to which the Defense Department could launch cyberattacks against computer systems in other countries. While the government is attempting to create a cyberoffensive capability (whether good or bad), individuals certainly should not try to take matters into their own hands as “hacker patriots.” It is difficult to envision how intentionally launched cyberattacks would not result in potential criminal and civil liability under the Computer Fraud and Abuse Act — a statute that was enacted in 1986 and that has been amended over time to address a wide range of nefarious computer crimes. Moreover, once unleashed, cyberattacks easily could travel around the world over the Internet and cause harm far beyond the intended targets. Not only would this wreak havoc for communications and commerce, it very likely would lead to civil litigation filed by victims of the attacks. For these reasons, in addition to other global considerations, the U.S. government also needs to be very careful about the potential genie it may try to let out of the bottle in terms of Internet attacks. WHAT TO DO? Even if cyberattacks as a form of warfare between countries do not occur, there is little doubt that viruses, worms and other malicious code will continue to cause major disruptions on the Internet at least from time to time. So, what is the average person or company to do? All reasonable technological measures should be taken to protect computers, servers and networks. Even the best technological protective measures cannot protect against all forms of cyberthreats, especially as they change and evolve. Thus, to mitigate economic risk, it is prudent to purchase insurance coverage for cyber-risks. Traditional insurance policies respond to damage to tangible, physical property — not electronic data. Recently, a number of new insurance products designed to cover cyber-risks have come into the marketplace. However, they differ widely one from the other, as they have not yet become standardized. Furthermore, the policy language of these policies has not yet been interpreted much by the courts. And, many of these new policies contain exclusions for various types of risks. Thus, it is important to review these policies with a keen eye, and probably with counsel experienced in this area, to obtain the coverage that is most appropriate for you. CROSS YOUR FINGERS Let’s all hope and pray that international tensions will ease and that we will not face cyberwarfare, or any type of warfare anytime soon. Nevertheless, we must brace ourselves for disruptions on the Internet, whether they are formally launched attacks between countries, or as a result of the viruses and worms we already are encountering. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His Web site is www.sinrodlaw.com, and he can be reached at [email protected]. To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected].

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