Title: From the Cuckoo's Egg to Global Surveillance: Cyber Espionage that Becomes Prohibited Intervention
Abstract: In 1986, the first documented case of cyber espionage marked the beginning of what is now commonly referred to as cyber warfare. In fact, cyber espionage generally continues to be the most common manifestation of cyber warfare today. Recent examples confirm the extent of the phenomenon and its consequences, from the multiple high-profile Chinese operations observed since 2003, to the 2013 Snowden disclosures of the U.S. National Security Agency’s mass-scale foreign surveillance programs, and the recent Democratic National Committee hack attributed to Russia in the context of the 2016 U.S. Presidential election campaign.
The international legality of espionage is at best uncertain. As technology now allows for unprecedented mass-scale and long-distance data-collection, the international community must address legal uncertainty if it is to preserve international peace and security. While foreign surveillance has prompted a fair amount of literature on the extraterritorial applicability of human rights treaty law, this paper offers to focus on sovereignty implications. By placing espionage law within the framework of non-intervention, it provides a workable alternative in the response to mass-scale spying operations that does not involve the unrealistic consideration of all forms of espionage as inherent violations of political independence and territorial integrity. This paper also offers a reflection on the importance of clarity and predictability of the norm as a prerequisite for compliance, and suggests several strategies to achieve such compliance under international law in the context of cyber espionage.
Publication Year: 2017
Publication Date: 2017-06-19
Language: en
Type: article
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Cited By Count: 1
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