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State Cyber Operations and International Law: Russian and Western Approaches

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State Cyber Operations and International Law: Russian and Western Approaches State Cyber Operations and International Law: Russian and Western Approaches THESIS Presented in Partial Fulfillment of the Requirements for the Degree Master of Arts in the Graduate School of The Ohio State University By Brandon S. Davis Graduate Program in Slavic & East European Studies The Ohio State University 2018 Master's Examination Committee: John B. Quigley, J.D., Advisor Richard K. Herrmann, PhD Copyrighted by Brandon S. Davis 2018 Abstract Cyber operations for the purpose of furthering state power, wealth, and influence are a relatively recent historical development. State cyber operations have consistently increased in scale, scope, and frequency since the mid-1990s. The trend marks a transition from the use of conventional conflict to the use of cyber operations as a key component to protecting and advancing national interests. The Westphalian international order has provided nation-states with a robust set of laws and norms that govern conventional and nuclear armed conflict. However, cyberspace is an increasingly contested domain with minimal international governance or agreement on its use as nation-states do not uniformly understand and apply international law to cyberspace. The Russian Federation has been actively challenging US cyberspace dominance for the previous decade, reshaping international cyberspace norms. The US must establish and maintain an effective cyberspace strategy that is uniquely suited to Russia’s application of cyber operations. In order for the US strategy to adequately provide security for the nation’s economy, infrastructure, and democratic institutions, it must take into account the distinction between the Western and Russian application of international law to state cyber operations. Russian scholars differ from Western legal scholars in four aspects; 1) Russian scholars differ in their understanding of the relationship between state sovereignty and cyberspace, 2) Russian experts generally do not view the current international framework as a sufficient guiding body for establishing legal norms in cyberspace, 3) Russia’s concept of self-defense in cyberspace changes with the strategic environment, and 4) The country emphasizes “information security” as opposed to “cyber security,” which has impacts on international human rights. ii Vita May 2002 .......................................................Tri-Valley High 2006................................................................B.A. Criminal Justice, Bowling Green State University 2012................................................................M.A. Criminal Justice, Troy University 2015................................................................A.A. Russian Language, Defense Language Institute, Foreign Language Center 2006 to present ..............................................U.S. Army Officer Fields of Study Major Field: Slavic and East European Studies iii Table of Contents Abstract ........................................................................................................................................... ii Table of Contents ........................................................................................................................... iv List of Figures ................................................................................................................................ vi Chapter 1: Introduction .................................................................................................................. 1 Chapter 2: Current Cyberspace Operating Environment ............................................................... 3 Russia’s Utilization of Cyber Operations.................................................................................... 4 Estonia ..................................................................................................................................... 6 Georgia .................................................................................................................................. 10 Ukraine .................................................................................................................................. 14 United States .......................................................................................................................... 18 United States’ Utilization of Cyber Operations ........................................................................ 23 Iran ......................................................................................................................................... 23 North Korea ........................................................................................................................... 25 Espionage............................................................................................................................... 25 Chapter 3: Cyber Operations and International Law .................................................................... 27 Western Approaches ................................................................................................................. 28 Sovereignty ............................................................................................................................ 29 Due Diligence ........................................................................................................................ 30 iv Jurisdiction............................................................................................................................. 31 Internationally Wrongful Cyber Acts .................................................................................... 32 Attribution ............................................................................................................................. 33 Countermeasures ................................................................................................................... 34 Espionage............................................................................................................................... 36 International Human Rights Law .......................................................................................... 37 Use of Force........................................................................................................................... 39 Armed Attack and Self-defense ............................................................................................. 40 Collective Security ................................................................................................................ 43 Russian Approaches .................................................................................................................. 44 Sovereignty ............................................................................................................................ 46 Current International Legal Framework Versus New Treaty System ................................... 48 Self-Defense .......................................................................................................................... 52 Cyber Security vs. Information Security and International Human Rights Law................... 55 Chapter 4: Implications and Conclusion ....................................................................................... 59 References ..................................................................................................................................... 61 v List of Figures Figure 1: Cyber Incidents Over Time (n=208), and Top Nation States (n=162) ................ 4 Figure 2: Levels of Cyber Operations ............................................................................... 41 vi Chapter 1: Introduction Cyber operations for the purpose of furthering state power, wealth, and influence are a relatively recent historical development. State cyber operations have consistently increased in scale, scope, and frequency since the mid-1990s. The trend marks a transition from the use of conventional conflict to the use of cyber operations as a key component to protecting and advancing national interests. The Westphalian international order has provided nation-states with a robust set of laws and norms that govern conventional and nuclear armed conflict. However, cyberspace is an increasingly contested domain with minimal international governance or agreement on its use as nation-states do not uniformly understand international law and apply it to cyberspace. The US has become increasingly concerned with cyber operations only within the last ten years, and this is evident in the analysis of previous NSS (National Security Strategies). In 1997, President Clinton mentioned “cyber” zero times in his NSS (United States Executive Office of the President). In President Trump’s 2017 NSS, “cyber” is noted 45 times (United States President). The US has increasingly recognized the threat to its dominance of cyberspace and the potential security implications this has on the country. US cyberspace dominance is being actively challenged by many state and non-state actors. These actors include North Korea, China, and ISIS. However, with a well-developed cyber strategy, the Russian Federation has been particularly challenging to US cyberspace dominance for the past decade, reshaping international cyberspace norms. The US must establish and maintain an effective cyber strategy that is uniquely suited to Russia’s application of operations. 1 In order for this strategy to adequately provide security for the nation’s
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