The Microsoft Cyber Army & the Judicial Power to Declare War

This past Monday, an Alexandria, Virginia Federal court granted a request from Microsoft to allow Microsoft to take down tens of thousands of internet addresses that the company claims are linked to harmful hacking activities and botnets, specifically the Waladec botnet. Microsoft claimed the IP addresses listed in the request are involved in spam, virus propagation, and D-DOS attacks (distributed denial of service, an activity aimed at taking a server down by overloading it with countless computer requests).

The legal action allowing this order appears to be against numerous "John Doe" defendants. Since these parties haven't been identified, the action is proceeding more like an in rem action than an in personam action, or a proceeding against a thing instead of a person. Microsoft is basically suing the numerous computers that have been infected with the malicious code that allowed them to be wielded by hackers. Thus, there is no legal representation for the tens of thousands of computers that Microsoft has just been authorized to attack. Likely, numerous innocent non-hacker individuals are going to have their computers shut down by Microsoft hackers due to the infection that they have on their computer, potentially requiring hours of repair efforts per computer to remedy.

To add to the mysteriousness of this action, the order has been issued under seal to allow Microsoft to begin its attack without giving the hackers advance warning of what will be attacked. Considering the non-adversarial nature of the issuance of this order, and the fact that it was issued in secret, this order would appear more similar to a search warrant issued to police by a judge without any representation for the defendant. But even the police aren't usually given the power to attack the resources of innocent bystanders. The amount of power conferred by this order rises nearly to the level of the Congressional power to grant letters of marque and reprisal to privateers (a.k.a. pirates). Article 1 Section 8 Clause 11 of the United States Constitution (the same clause empowering Congress to declare war) gives Congress the authority to extend rights to privateers to attack and pillage enemies of the US (used during the Revolutionary War days to encourage pirates to attack British boats). However here a single judge authorized the act, instead of the two thirds of the House and Senate that would be required to grant letters of marque!

Hopefully the order will soon be unsealed for a more detailed inspection, and possibly even challenged, because this decision has the potential to greatly increase the judicial power to grant cyber-warfare powers to corporations and individuals.

Here is the link to Microsoft's complaint.