To prevent automated spam submissions leave this field empty.
Mr. Eric Greenwald, currently serving on the White House National Security Staff, skillfully moderated this stimulating discussion regarding international legal norms governing countermeasures, specifically their application to State cyber activities. Several primary themes ran through the presenters' initial comments, including how the lack of State transparency regarding their cyber operations impacts clarification of legal bases for such actions. The panelists also all clearly identified the tension between states' immediate desires to exploit existing ambiguities in the application of the relevant law of state responsibility to the cyber realm, versus the potential long-term benefits of crafting a sustainable, clear legal framework of cyber countermeasures.
Ms. Alexandra Perina, from the Department of State and currently working at the Council on Foreign Relations, aptly placed this particular tension into a larger framework (and theme of this ASIL conference): the effectiveness of international law. Clear legal rules governing cyberspace countermeasures, according to Ms. Perina with agreement from her co-panelists, will evolve when the use of such rules aligns with State interest. The law of countermeasures, if its norms carried greater consensus regarding their application to the cyber arena, offers an important legal tool for managing state cyber measures that fall below the level of armed attack per Article 51, U.N. Charter. The law's utility depends on a better understanding of the primary legal norms in action. Ms Perina rhetorically asked: is a mere trespass by a State's cyber tool of another State's infrastructure a breach of the latter's sovereignty? Or is physical damage required? How do the principles of non-intervention and the duty of vigilance apply in the cyber realm? To what extent does the latter require States to monitor internet activities, thereby impacting privacy interersts?
Profesor Michael Schmitt, U.S. Naval War College & University of Exeter, has long been working on answering Ms. Perina's questions through his important contributions to the Tallinn Manual and subsequent efforts. The audience was treated to a summary of ten primary countermeasures principles as developed by his NATO-sponsored working group; this body of experts is currently drafting a partner Tallinn Manual focused on clarifying a legal framework for State cyber activities below the level of armed conflict. Professor Schmitt discussed the difficulty of applying these principles to a cyber context. For example, the well-accepted legal requirement of state attribution – that it must be one of factual attribution and be "well-founded" – in cyberspace is a difficult finding, as a matter of fact.
Mr. Joseph Hall from the Center for Democracy & Technology provided a computer scientist approach, agreeing with Professor Schmitt that attribution is vastly complicated in the cyber area. He highlighted the prevalence of "spoofing" on the internet, or the ability to essentially look like someone else via exploitation of signatures. Regarding the requirement of proportionality in countermeasures, Mr. Hall highlighted the inability to accurately forecast second and third order effects of cyber activities and limit their consequences, thereby increasing the difficulty of maintaining proportionality.
Professor Wenqi Zhu, Law School of Renmin University of China, emphasized the areas of common state agreement; fundamentally, that cyber security is a critical state interest. He highlighted U.S. Defense Secretary Hagel's recent comments regarding cyber security while in China; he characterized these as unsurprising, due to the fact that states' cyber measures can easily be viewed as hostile, a concern compounded by their potentially destructive effects. Professor Zhu views international law today as unable to appropriately deal with cyber operations, both State and non-state actions.
The panel enjoyed thoughtful inquiries from the audience, including probing questions regarding transparency plus the role of non-state actors. The only thing lacking about this panel was more time, as the audience was fully served by the expert opinions of the terrific panelists and could have continued listening and engaging for many more hours.
Rachel E. VanLandingham, Bruce R. Jacob Visiting Assistant Professor of Law, Stetson University College of Law.