It’s becoming acceptable to conduct covert “warfare” on anyone

Remember two years ago when North Korea hacked Sony Pictures over a movie? Pundits and concerned citizens alike postulated whether such behavior could be an act of war.

Just this election cycle Russia hacked the Democratic National Committee servers and dumped emails in the midst of a US election. Such activity is one of the first openly obvious hacks done for covert political influence against another State. Ido Kilovaty, Cyber Fellow at the Center for Global Legal Challenges at Yale Law School, theorizes that international law principles of non-intervention are difficult to apply since cyberspace transcends political boarders. His latest blog warns that information is slowly becoming the new form of interference: the new form of covert action. And that is a national security problem.

What qualifies as a covert action and what rules are in place to oversee it are domestic issues defined by domestic laws of individual States. Covert actions conducted by the U.S. are governed for example by the amended National Security Act of 1947. Section 503(a)(5) is explicit that any covert action “may not authorize any action that would violate the Constitution or any statute of the U.S.” It is silent on whether or not a covert action must comply with customary international law (CIL). This silence is not U.S. specific either. Across the globe countries have ill-defined expectations and norms when it comes to State sponsored cyber use. States are coming to terms with the fact that cyber is our new form of covert warfare. This lack of clarity is our arising national security problem because it makes each of us vulnerable to a direct covert action from any State. Without defined expectations of use States will continue to use cyberattacks covertly to interfere in the lives of civilians because repercussions will remain nonexistent.  

The same cannot be said under CIL regarding other covert action use. I say CIL because espionage and covert actions have oddly enough been ill-defined in codified international law. Covert actions are legal because States have by custom covertly engaged in them. Satellite reconnaissance, electronic surveillance, and human efforts have all been seen as legally safe practices. (See this piece by Christopher D. Baker from the American University International Law Review regarding our tolerance for international espionage.)

The reality is that these other forms of covert action were conducted at specific State targets. Satellites followed military instillations etc. Not so with hacking. The basic customary principles of targeting, distinction, and government-focused entities when conducting operations seems not to apply in cyberspace. Everyone is a target.

Behavior becomes acceptable under CIL when States remain silent. The reality is that countries who care about protecting their citizenry from foreign covert actions must speak up more forcibly against state sponsored cyberattacks on civilians. Until then, the current legal option for those subject to foreign government hacks is domestic in nature. But good luck collecting your US Court judgment from North Korea.

Authored by Matthew Goepfrich

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The National Security Law Association (NSLA) is a student-run organization within Loyola University Chicago School of Law. Our organization promotes discussion of national security law topics through student group activities and through this blog, which serves as an online forum for students. The purpose of this blog is to break-down complex issues into more digestible topics and to foster conversation in afternoon briefings.

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