IEEE Technology and Society Magazine - June 2019 - 73

citizens. First, the existence and effect of the weapon
must be known to the government and the lawmaker so
it could be restricted. A militiaman is armed with his
personal armament: rifle, bayonet, and sidearm. In the
nondigital world, as an example, claymore mines and
hand grenades are not permissible weapons for the citizenry, but are considered "dangerous and unusual" and
therefore restricted to government use. The damage
and hazards surrounding claymore mines and hand
grenades are known to the government and the lawmaker. The tripwire will detonate the claymore mine,
and the hand grenade is thrown without a clear understanding of the final impact and effect. The mine is
autonomous in its execution, and the grenade is not
sufficiently accurate, with a possibility of damages
beyond the intended scope of the defender. These
effects are known to the government. With cyberweapons, this decision path is different.
The lawmaker needs to be aware of cyberweapons
and the means of restricting them. Otherwise, the result
would be a ban on thought and innovation; the law
would then arbitrarily punish what in retrospect is considered "dangerous and unusual cyberweapons"
through law that is ex post facto legislation.

Definition of Cyber Arms
There no precise definition of cyber arms or their anticipated capabilities and effects of their utilization. One
reason is that the very nature of software creates multiple purposes for utilization.
The U.S. Department of Defense has no codified, uniform definition, but refers to cyber arms as a "capability:" "a device, computer program, or technique,
including any combination of software, firmware, or
hardware, designed to create an effect in or through
cyberspace" [5].
The common definition of cyber arms is broad and
comprehensive. One definition, by the North Atlantic
Treaty Organization (NATO) Cooperative Cyber Defence
Centre of Excellence (CCDOE), is [6] "...software, firmware or hardware designed or applied to cause damage
through the cyber domain."
This definition is legally problematic because of the
assumption that the intended usage of software, firmware, or hardware would alter the status of a nonweapon to a weapon. This contradicts elementary principles
in the rule of law, where legal rules altered after the fact
are referred to as ex post facto laws. The cyber community has yet not presented a commonly accepted definition, even if attempts have been made to define cyber
weapons [7].
The U.S. Constitution specifically prohibits this in
Article 1, Section 9: "No Bill of Attainder or ex-post facto
Law shall be passed [8]."
JUNE 2019

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Does the Second Amendment to the
United States Constitution give the
right to bear and own military-grade
cyber weapons?

The Second Amendment does not address the
intent of the arms owner. In 1791, the right was derived
from the status of a citizen in the newborn union of
free colonies. The military-design, semi-automatic
rifles that are protected by the Second Amendment
and owned by citizens are primarily hunting rifles - in
other words, a utility that could, if necessary, serve as
a weapon of military conflict. There is a similarity
between the gun-powder-propelled arms that are protected by the Second Amendment and dual-use hacking software since the software is dual-use as both
utility and weapon. The network mapping tools, discovery tools, and port scanners are on one hand practical
system administrative utilities for day-to-day business
operations and also of direct military use in offensive
probes and reconnaissance.

Unusual Weapons
In the legal precedence [9], as exemplified by English v.
State, 35Tex. 473, 476 (1871), Bowie knives, slungshots,
daggers, and brass knuckles with no military value do
not bring Second Amendment protection to bear. In the
digital realm, the unusual is far harder to prove for the
government when the weaponized software is in most
cases of dual use. A computer user can use a port scanner to determine which ports are responding to calls to
install a printer. Thus, the port scanner could be a hacking tool, but it could also be a civilian utility software.
Networking mapping software, such as the open-source
software Nmap [10], is primarily a tool for network discovery. Hackers could use Nmap software to increase
their knowledge of network topography, but Nmap is primarily a utility tool, not a weaponized, hacking tool. A
way to weaponize the tool is to cluster multiple Nmap to
achieve an ability to scan large portions of a network
[11]. So the fact that clustered Nmap can be a weaponized tool and the single use of the software would give
military and intelligence hackers a tool to do network
discovery, even if never intended to be a military tool,
rendering Nmap status as a military useful software.
This dual use pertains not only in civilian and military
realms, but also in the multiple purposes of cyberweapons as a weaponized software, and a networking utility

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IEEE Technology and Society Magazine - June 2019

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