§ 394. Authorities concerning military cyber operations

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(a)In General.— The Secretary of Defense shall develop, prepare, and coordinate; make ready all armed forces for purposes of; and, when appropriately authorized to do so, conduct, military cyber activities or operations in cyberspace, including clandestine military activities or operations in cyberspace, to defend the United States and its allies, including in response to malicious cyber activity carried out against the United States or a United States person by a foreign power.

(b)Affirmation of Authority.— Congress affirms that the activities or operations referred to in subsection (a), when appropriately authorized, include the conduct of military activities or operations in cyberspace short of hostilities (as such term is used in the War Powers Resolution (Public Law 93–148; 50 U.S.C. 1541 et seq.)) or in areas in which hostilities are not occurring, including for the purpose of preparation of the environment, information operations, force protection, and deterrence of hostilities, or counterterrorism operations involving the Armed Forces of the United States.

(c)Clandestine Activities or Operations.— A clandestine military activity or operation in cyberspace shall be considered a traditional military activity for the purposes of section 503(e)(2) of the National Security Act of 1947 (50 U.S.C. 3093(e)(2)).

(d)Congressional Oversight.— The Secretary shall brief the congressional defense committees about any military activities or operations in cyberspace, including clandestine military activities or operations in cyberspace, occurring during the previous quarter during the quarterly briefing required by section 484 of this title.

(e)Rule of Construction.— Nothing in this section may be construed to limit the authority of the Secretary to conduct military activities or operations in cyberspace, including clandestine military activities or operations in cyberspace, to authorize specific military activities or operations, or to alter or otherwise affect the War Powers Resolution (50 U.S.C. 1541 et seq.), the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note), or reporting of sensitive military cyber activities or operations required by section 395 of this title.

(f)Definitions.— In this section:

(1)The term “clandestine military activity or operation in cyberspace” means a military activity or military operation carried out in cyberspace, or associated preparatory actions, authorized by the President or the Secretary that—

(A)is marked by, held in, or conducted with secrecy, where the intent is that the activity or operation will not be apparent or acknowledged publicly; and

(B)is to be carried out—

(i)as part of a military operation plan approved by the President or the Secretary in anticipation of hostilities or as directed by the President or the Secretary;

(ii)to deter, safeguard, or defend against attacks or malicious cyber activities against the United States or Department of Defense information, networks, systems, installations, facilities, or other assets; or

(iii)in support of information related capabilities.

(2)The term “foreign power” has the meaning given such term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

(3)The term “United States person” has the meaning given such term in such section.

(Added Pub. L. 114–92, div. A, title XVI, § 1642(a), Nov. 25, 2015, 129 Stat. 1116, § 130g; renumbered § 394 and amended Pub. L. 115–232, div. A, title XVI, §§ 1631(a), 1632, Aug. 13, 2018, 132 Stat. 2123.)

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