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Document Type

Article

Abstract

Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in a handful of sectors. Over the past few years, several novel laws and regulations addressing this emerging issue have been legislated. Yet, the overall trajectory of limited regulatory intervention has not changed. With that, the wisdom of such a limited regulatory framework must be revisited and possibly reconsidered. This Article fills an important gap in the legal literature by contributing to and promoting this debate on cyber-risk regulation of CIs, while mapping out the relevant rights, options, and interests this ‘critical’ debate entails and setting forth a regulatory blueprint that balances the relevant factors and considerations.

The Article begins in Part II by defining CIs and cyber risks and explaining why cyber risk requires a reassessment of CI protection strategies. Part III describes the means used by the United States and several other nations to address cyber risks of CIs. Part IV examines a market-based approach with minimal governmental intervention to critical infrastructure cyber-regulation, along with the various market failures, highlighting assorted minimal measures to correct these problems. It further examines these limited forms of regulation, which merely strive to bridge information and expertise barriers, assign ex post liability for security-related harms, or provide other specific incentives—and finds them all insufficient. Part V continues the normative evaluation of CI cyber-protection models, focusing on ex ante approaches, which require more intrusive government involvement in terms of setting and enforcing standards. It discusses several concerns with this regulatory strategy, including the lack of governmental expertise, regulatory capture, compromised rights, lack of transparency, and the centralization of authority. Finally, in Part VI, the Article proposes a blueprint for CI cyber protection that goes beyond the mere voluntary regulatory strategy applied today.

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