– By Muskaan Garg
– Intern IPPCS’21
– Student of Symbiosis Law School, Pune
Introduction
Cyber espionage is an activity of intrusion via cyberspace with the intent of non-authorised exploiting or spying upon , digitally protected data of the other party. This form of cyber-intrusion distinguishes it from its conventional counterpart by greatly enjoying the geographical and physical independence of the activity as it requires no physical presence of man or device at the target point. At international levels, cyber espionage can be performed by both state and non-state actors and follows no boundary limitations.
Historical aspect: the first case of cyber espionage dates back to 1986 wherein the US military base system was attacked by a German hacker for military secrets. ‘Moonlight Maze’ in 1999, against the US government, was one of the first attacks to be bring cyber espionage to limelight. After the beginning, various attempts and attacks have been witnessed and might still be underway.
Early literature focusses on cyber espionage as information warfare and whether the principles of international law are applicable to it. This article considers the status of law on cyber espionage intervention within international law.
Legality of cyber espionage intervention
Cyber espionage is the modernized form of espionage activities which are prohibited in domestic laws. But such prohibition is not merely enough to deem similar at international levels as subject to domestic laws are not states but individuals.
Rule 32 of the Schmitt 2017 states that peacetime cyber espionage is not per se regulated by international law. Rather, it is the manner (i.e., the methods) in which cyber espionage operations are conducted that may violate international law and, when considering how these rules apply to cyber operations, the Tallinn Manual 2.0 often uses cyber espionage as an example. However, there is no consensus on what “methods” used to conduct cyber espionage may violate certain rules of international law.
Cyber Espionage as self-defence: This argument states that cyber espionage is an element of self-defence and follows the doctrine of necessity in the times of no trust amongst nations. Article 51 of the UN Charter permits the right of self-defence in forms of anticipatory and pre-emptive self-defence, thereby cyber espionage would fall in this category only if the attack is of defensive nature without any aggressive intentions towards the target. The incident named ‘Gary powers U2’ is a congruent example wherein the US planes flew over soviet territory on espionage missions and got shot down. The US later clarified that their intent was solely defensive and there was no intent of aggravation. Hence, it is the nature of the attack and intention of the attacker which decides if cyber espionage could be considered as an element of self-defence.
Principle of non-intervention and article 2(4) of UN charter: The principle of non-intervention states that sovereign states should not intervene in each other’s internal affairs while Article 2(4) prohibits the use of armed force. According to this, cyber espionage might not be considered as the use of armed force, but could be very well considered as intervening in a sovereign state.
It is argued that cyber espionage does not cause any damage or sabotage immediately but provides information which can be used to put together an armed conflict against the target. Thereby, it supports the use of armed force and could be considered to also violate Article 2(4). A counter argument states that the charter does not define ‘use of force’ in specific terms which makes it difficult to match the contents of cyber espionage and contextualise in context to the Charter. There is also a parameter of unfriendly behaviour wherein such actions are considered detrimental by states but they do not surpass the threshold of force and do not per se breach any specific international norm which stands binding. Hence, it depends on the intensity and damage caused by the specific act of cyber espionage in question in order to ascertain whether it violates the ‘use of force’ clause.
Breach of principle of sovereignty of state and territory: if the law assumes that cyberspace is subject to sovereignty then cyber-espionage becomes a violation of the principle of sovereignty due to its nature of gaining unauthorized access into the systems within the territory and sovereignty of state. In this case the state may exercise complete control over the cyber infrastructure and activities surrounding it. But if this assumption is disregarded by law, then the control of cyber space and its activities are not bound to any specific legal structure as of now.
Beyond this cyber espionage lacks the aspect of physical dimension and is thereby an unauthorized virtual trespass but the work done is equivalent to an agent who breaks into a government office to exploit information. Hence the method might differ but the intent and result is similar to conventional attacks.
Issues and recommendations with regard to cyber espionage
Cyber espionage is as such not strictly prohibited in action by the international law but such activities are to be individually tried and judged on a case-to-case basis. Thus, International law yet has no binding law preventing cyber espionage but through the discussions there have been several highlighted issues and recommendations while tackling the legality of cybersphere and cases of cyber espionage.
One of the main advantages for the intruders is that they can run their actions through a chain of intermediaries located in various third states, making it difficult to track an intrusion to its original source. Therefore, a retaliation by the victim state is improbable. There might be diplomatic or other political reasons to suspect specific states to be behind the cyber espionage, but it would be difficult to provide sufficient material to technically attribute a state to a specific case of cyber espionage. The difficulty in defining the location, nature and substance of cyberspace creates is a major cause of the disagreements as to whether cyberspace is subject to state sovereignty or not.
Cyberspace is claimed to be a space unregulated or only partly regulated by law. If this were to be absolutely true then the discussion would conclude with the climax that cyber espionage is not prohibited. Whereas, agreeing with an independent cyberspace not being subject to state sovereignty or international law, puts to an end the discussion of extraterritorial data intrusions by states, since no state has a cyber territory. Hence, formulating a legal model fit for international cybersphere and its member nations, keeping in mind the underlying and the upcoming challenges with regard to the cyberspace and its tributaries.
The Tallinn manual is a research initiative published by Cambridge university press in the year 2013, which addresses the most severe cyber operations. This has over time gained recognition and has become an influential resource for policy experts dealing with cyber issues. The manual was updated in 2017 by the name of Tallinn manual 2.0. In the year 2021, the project of Tallinn manual 3.0 has been launched which is a five-year venture involving revision and exploration to pace it up with the emerging issues and resolutions. The nature of the manual will continue to be a non-legally-binding, scholarly document intended to provide an objective of international law applied to the cybersphere until it is given the status of a binding statue, or is descripted into a treaty for equal application.
Conclusion
Thereby, with the above readings, it is realized that technology has paced ahead of policy making in the domain of cyber sphere. Cyber war’s greater ability to deploy latent disruptive capabilities and a greater ability to conduct surveillance will make guidelines to determine the propriety of this type of conduct increasingly important in years to come. On a broader level, any proposals should account for the huge social and economic value inherent in cooperation, as exemplified by the success of the internet’s federated but cooperative architecture. At the same time, they should recognize how a lack of alignment in underlying interests, the increase in the number of participants, and the reduced ability to verify others’ compliance have the tendency to cause cooperation to break down. In the absence of such cooperation, nation-states may use lawfare as a tool of obstruction in the course of waging total war.
References
- https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0212.xml
- S J. Shackelford, Managing Cyber Attacks in International Law, Business and Relations: In Search of Cyber Peace (1st edition Cambridge University Press, UK 2014) 53.
- J P. Barlow, ‘A Declaration of the Independence of Cyberspace’ (1998) accessed 3 March 2014.
- Baker (n 114); Demarest (n 112)
- https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2541&context=faculty_scholarship
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