What role will overseas contractors play in the military’s expanded “persistent engagement” activities against foreign cyber threats?
In the runup to the 2018 midterm elections, the U.S. military took steps to protect the integrity of the election process. These steps included shutting down the servers of notorious “troll factory” Internet Research Agency in the hours before the November election. That operation signals a shift from the reactive cyber warfare policies of the past to a more proactive stance designed to eliminate potential threats.
Operations like this one are also risky. They do not always work, and often invite retaliation.
Legal and Tactical Aspects of Electronic Warfare
Undeclared wars, like the virtual war against the IRA, are not new. In fact, they are almost as old as the Republic. Shortly after he took office in 1801, American President Thomas Jefferson sent a contingent of U.S. Marines to protect American shipping in the Mediterranean from the Barbary Pirates, who operated under Libyan auspices. His action was not quite a foreign invasion, but it was close to it. His gamble worked, as both the pirates and their Libyan allies backed down. That bit about “the shores of Tripoli” in the Marine Hymn is a reference to this incident.
James Madison, who was Jefferson’s immediate successor, fought an undeclared war of his own, but with much different results. Around 1810, American and British naval vessels began trading shots over impressment, which was the forced service of American seamen into the British Royal Navy. That conflict soon lead to the War of 1812, which was perhaps the most divisive, destructive, and indecisive war in American history.
Congress very narrowly issued a declaration of war, as the conflict was unpopular everywhere except New England. Nearly every major battle was fought on U.S. soil, including the British burning of government buildings in Washington and the bloody siege of Ft. McHenry in Maryland (the Star Spangled Banner thing). Finally, the war with Britain ended with no exchange of territory and no resolution of the question which sparked it.
So, undeclared wars are playing with fire. Sometimes they work out very well, and sometimes things go sideways.
When so much is at stake, private military contractors are often better suited than regular servicemembers. Contractors often have a skill set that servicemembers do not have. Some contractors are former hacktivists, and there is an old saying that you need a thief to catch a thief.
Contractors are also cheaper than regular servicemembers. The government pays no benefits and is not tied down to a long-term employment agreement. Contractors are even cheaper if they serve in the MENA (Middle East and North Africa) region, where a dollar goes a lot further.
Even though they work in semi-comfortable offices instead of hot deserts, or perhaps because of this environment, cyber warfare contractors risk long-term injury. In the legal injury compensation world, these injuries are called occupational diseases. These conditions arise over the course of more than one work shift. Some examples include:
- Carpal Tunnel Syndrome: The median nerve, which is one of the most important nerves in the hand, must pass through the narrow carpal tunnel in the bony wrist. Prolonged typing on a keyboard creates additional pressure and compresses the nerve. Treatment usually involves injections and/or surgery.
- Vision Loss: Similarly, prolonged computer monitor viewing strains the eyes. The damage is so gradual that most people do not know it is happening until it is too late. As a general rule, if the screen is anywhere near 100% brightness, vision impairment will probably be an issue.
- Falls: If a person falls several times, even though the individual falls are not harmful, there could be a serious injury. According to the Centers for Disease Control, office workers are twice as likely to fall as their non-office counterparts. Electrical cords, loose carpet, and walkway obstructions are the most common culprits.
Occupational diseases like these, especially the non-traditional ones, are hard to diagnose. Typically, these issues begin with general pain or some similar symptoms. Many doctors use the “take two and call me in the morning” approach in these situations.
These conditions are also hard to tie to the work environment. Most people do not immediately think of computer screens when their vision begins deteriorating. As a result, they may not file DBA claims, and the fight for fair compensation becomes an uphill battle.
Because of all these issues, occupational diseases often create significant medical bills. The Defense Base Act pays for all reasonably necessary medical expenses, including:
- Diagnostic visits and tests,
- Surgery and other required medical care,
- Follow up medical treatment,
- Physical rehabilitation, and
- Medical devices.
Typically, the DBA insurance company pays these expenses directly, so injured victims never see medical bills.
A key phrase here is “reasonably necessary.” Many insurance companies challenge expenses on this basis, especially if they are nontraditional.
If a dispute arises, there is usually a settlement conference. At this meeting, a claims examiner tries to broker a deal between the victim and insurance company. Sometimes these conferences are successful, but most of the time, they do not adequately resolve the issues.
The next step is usually an administrative hearing, which is like a trial. At this hearing, an attorney can challenge evidence and make legal arguments.
Even if the dispute drags on, most victims get the treatment they need when they need it without paying any money upfront. Attorneys send letters of protection to medical providers. These letters guarantee payment when the case is resolved. Therefore, victims get the treatment they need instead of the treatment they can afford.
For more information about lost wages and other DBA benefits, contact Barnett, Lerner, Karsen, Frankel & Castro, P.A.