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Preemption

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Definitions Edit

Cyberwarfare Edit

Preemption

(sometimes also known as anticipatory self-defense) is the first use of cyber force against an adversary that is itself about to conduct a hostile cyber action against a victim.[1]

Statutory Edit

Preemption refers to the displacing effect that federal law has on a conflicting or inconsistent state law.

Overview (Statutory) Edit

The Supremacy Clause (Article VI, section 2) of the U.S. Constitution states that:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Thus, when there is a conflict between a state law and federal law, the federal law (subject to the Tenth Amendment, Fifth Amendment to the U.S. Constitution and other constitutional provisions) overrides — or "preempts" — state law.

The term "preemption" is also sometimes used to refer to the displacing effect state laws might have on ordinances enacted by municipalities.

Types of preemption Edit

There are two situations where preemption claims might or may arise: "express preemption" and "implied preemption."[2]

  1. "Express preemption" occurs where Congress says within a statute "we hereby preempt" or uses words of similar import. Here, federal laws explicitly preclude state and local regulations.
  2. "Implied preemption" has three sub-categories: conflicts preemption, preemption because state law impedes the achievement of a federal objective, and preemption because federal law occupies the field.
  • Conflicts preemption is where it is impossible to comply with both the federal statute and the state or local law. In this situation, the federal statute must be followed. It is, however, appropriate to have two laws, one federal and one state, that differ. The federal law, in this case, may be a minimum standard, while the state enacts a law to be more strict. State law, therefore, would not be preempted. Preemption would only occur if the federal and state laws were mutually exclusive.
  • The second type of implied preemption is preemption because state law impedes the achievement of a federal objective. This type of preemption occurs when a state or local law interferes with a goal or objective Congress was trying to attain with a federal statute. The purpose of each law must be determined and compared to each other. If both laws are trying to achieve the same goal, federal law will preempt the state or local regulation.
  • The final type of implied preemption is preemption because federal law occupies the field. In this situation, one must look at Congress's intent, and whether the federal law was meant to be exclusive in that area.

"In all cases, congressional intent to preempt state law must be clear and manifest."[3]

References Edit

  1. At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues, at 73.
  2. In re Google Inc. Street View Electronic Comm'ns Litig., 794 F.Supp.2d 1067, 1084 (N.D.Cal. 2011) (full-text) (quoting Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003) (full-text)).
  3. In re Cybernetic Servs., Inc., 252 F.3d 1039, 1046 (9th Cir. 2001) (full-text).

See also Edit


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