On that note has anyone written up what might be a viable agreement on the use of the internet and warfare?

Yup, you’re both right, although I dispute the analogy of the Zeros. It’s difficult to simply transfer analogies between the physical and the cyber domains. But, yes, it does matter what we call things, how we interpret them, and how we then decide to respond, and with what.

It’s worth pointing out that there’s a live debate in this field about attribution, which is hedged around with numerous ‘ifs’ and ‘buts’. One of the elements in this discussion is whether circumstantial evidence is sufficient to ascribe responsibility for attacks to particular actors. Evidence can look compelling but might turn out to be false, as it did last July, when DPRK looked the obvious culprit but seemed to have little to do with the events that compromised US and ROK assets. That matter is still unresolved.

If cyber is to be considered under the Laws of Armed Conflict, it has to meet the conditions of military necessity, distinction, proportionality, discrimination, perfidy, and neutrality. It is less than clear how these conditions are met and respected by cyber ops. So, I agree, there are big issues to tackle here, but I’m fairly certain that declaring war rather than a more nuanced approach is not useful at this stage.

Is a hack-attack just some thrill seeker, attempted theft or is it an act of war?

Not all attacks are acts of war, that is a given, but given enough attacks, with analysis showing the true destructive aim of the attack, it becomes an act of war–such is the case with China and North Korea and their attacks against the US.

Think of it this way, if in November 1944, armed Japanese Zeros were making repeated runs at Pear Harbor but were intercepted and turned back, wouldn’t those attempts be considered an act of war? Of course. Same with cyber attacks because those attacks can cause physical damage and death, not to mention economic collapse and threaten national survival.

The challenge is to determine quickly if the attacks are deliberate acts of a hostile power or movement. Back to the analogy: We need to know if the incoming aircraft are a flight of 99′s (http://www.ninety-nines.org/), or Zeros. If Zeros, it is War.