Governing Cyberspace: Behavior, Power and Diplomacy
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Governing Cyberspace OPEN ACCESS The publication of this book is made possible by a grant from the Open Access Fund of the Universiteit Leiden. Open Access content has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) license. Digital Technologies and Global Politics Series Editors: Andrea Calderaro and Madeline Carr While other disciplines like law, sociology, and computer science have engaged closely with the Information Age, international relations scholars have yet to bring the full analytic power of their discipline to developing our understanding of what new digital technologies mean for concepts like war, peace, security, cooperation, human rights, equity, and power. This series brings together the latest research from international relations scholars—par- ticularly those working across disciplines—to challenge and extend our understanding of world politics in the Information Age. Governing Cyberspace: Behavior, Power, and Diplomacy, edited by Dennis Broeders and Bibi van den Berg Governing Cyberspace Behavior, Power, and Diplomacy Edited by Dennis Broeders Bibi van den Berg ROWMAN & LITTLEFIELD Lanham • Boulder • New York • London Published by Rowman & Littlefield An imprint of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com 6 Tinworth Street, London, SE11 5AL, United Kingdom Copyright © 2020 by Dennis Broeders and Bibi van den Berg All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Names: Broeders, D. (Dennis), editor. | Berg, Bibi van den, editor. Title: Governing cyberspace : behavior, power, and diplomacy / edited by Dennis Broeders, Bibi van den Berg. Description: Lanham : Rowman & Littlefield, [2020] | Series: Digital technologies and global politics | Includes bibliographical references and index. | Summary: “Contributes to the discussion of growing insecurity and the unpredictable and often authoritarian use of the digital ecosystem”—Provided by publisher. Identifiers: LCCN 2020004795 (print) | LCCN 2020004796 (ebook) | ISBN 9781786614940 (cloth) | ISBN 9781786614957 (paperback) | ISBN 9781786614964 (epub) Subjects: LCSH: Computer networks—Law and legislation. | Internet—Law and legislation. | Cyberspace. Classification: LCC K564.C6 G685 2020 (print) | LCC K564.C6 (ebook) | DDC 343.09/944—dc23 LC record available at https://lccn.loc.gov/2020004795 LC ebook record available at https://lccn.loc.gov/2020004796 ∞ ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Contents Acknowledgments vii 1 Governing Cyberspace: Behavior, Power, and Diplomacy 1 Dennis Broeders and Bibi van den Berg PART I: INTERNATIONAL LEGAL AND DIPLOMATIC APPROACHES 2 International Law and International Cyber Norms: A Continuum? 19 Liisi Adamson 3 Electoral Cyber Interference, Self-Determination and the Principle of Non-intervention in Cyberspace 45 Nicholas Tsagourias 4 Violations of Territorial Sovereignty in Cyberspace—an Intrusion-based Approach 65 Przemysław Roguski 5 What Does Russia Want in Cyber Diplomacy? A Primer 85 Xymena Kurowska 6 China’s Conception of Cyber Sovereignty: Rhetoric and Realization 107 Rogier Creemers v vi Contents PART II: POWER AND GOVERNANCE: INTERNATIONAL ORGANIZATIONS, STATES, AND SUBSTATE ACTORS 7 A Balance of Power in Cyberspace 145 Alexander Klimburg and Louk Faesen 8 International Law in Cyberspace: Leveraging NATO’s Multilateralism, Adaptation, and Commitment to Cooperative Security 173 Steven Hill and Nadia Marsan 9 Cybersecurity Norm-Building and Signaling with China 187 Geoffrey Hoffman 10 Ambiguity and Appropriation: Cybersecurity and Cybercrime in Egypt and the Gulf 205 James Shires 11 The Power of Norms Meets Normative Power: On the International Cyber Norm of Bulk Collection, the Normative Power of Intelligence Agencies and How These Meet 227 Ilina Georgieva PART III: MULTISTAKEHOLDER AND CORPORATE DIPLOMACY 12 Non-State Actors as Shapers of Customary Standards of Responsible Behavior in Cyberspace 245 Jacqueline Eggenschwiler and Joanna Kulesza 13 Big Tech Hits the Diplomatic Circuit: Norm Entrepreneurship, Policy Advocacy, and Microsoft’s Cybersecurity Tech Accord 263 Robert Gorwa and Anton Peez 14 Cyber-Norms Entrepreneurship? Understanding Microsoft’s Advocacy on Cybersecurity 285 Louise Marie Hurel and Luisa Cruz Lobato Index 315 About the Editors and Contributors 323 Acknowledgments This book resulted from the inaugural conference of the Hague Program for Cyber Norms, titled “Novel Horizons: Responsible Behaviour in Cyber- space,” which was held in the Hague on November 5–7, 2018. The editors thank the participants for a great conference and especially those that submit- ted their work for this edited volume. A first round of editorial comments was done for the conference itself, and we thank Liisi Adamson, Els de Busser, Ilina Georgieva, and Zine Hom- burger, who were at the time all affiliated to the program, for their editorial contribution. We also thank Corianne Oosterbaan for all her hard work orga- nizing the conference and her invaluable help with the editorial process. Lastly, we would like to thank the Dutch Ministry of Foreign Affairs who generously fund the Hague Program for Cyber Norms and all of its activities and publications. The Hague, 2.12.2019 Dennis Broeders and Bibi van den Berg vii Chapter 1 Governing Cyberspace Behavior, Power, and Diplomacy Dennis Broeders and Bibi van den Berg WELCOME TO CYBERSPACE When states look at cyberspace, they do not necessarily see the same as most end users do. Sure, they see the massive added value in terms of the digital economy and, like their citizens, they have difficulties imagining life without the constant interactions and communication that is the bedrock of modern digital society. However, many parts of the government see cyberspace increasingly as a source of threat, insecurity, and instability. Where states looked at the early stages of the development of cyberspace with a certain degree of “benign neglect,” it became much more of a gov- ernment interest when the digital economy started off in earnest. Now, states increasingly view cyberspace through a lens of security. Not just in terms of cybercrime but more and more in terms of the high politics of international security (Klimburg 2017; Segal 2016; DeNardis 2014; Deib- ert 2013; Betz and Stevens 2011). Many states have formally declared the cyber domain to be the fifth domain of warfare—after land, sea, air, and space—and increasingly states conduct intelligence and pseudo-military operations in the cyber domain that fall short of “cyber war” but do create a permanent state of “unpeace” (Kello 2017; see also Boeke and Broeders 2018). The increase in cyber-attacks among states, or at least those that come out into the open, seem to be intensifying in terms of damage and impact, and provoke reactions from states and corporations. Cyber operations like WannaCry and NotPetya, politically attributed to North Korea and Russia, respectively, were both damaging and indiscriminate, which added to the feeling of vulnerability in the digital domain. However, even with NotPetya, of which the global damages have been estimated at roughly $10 billion (Greenberg 2018), no state was willing to say this operation was in violation 1 2 Dennis Broeders and Bibi van den Berg of international law. More in general, all public attributions of cyberattacks to states have not invoked international law other than in the most general terms possible (Efrony and Shany 2018). In cyberspace, a state of unpeace is heating up and although most states agree in principle that international law applies in cyberspace as it does in the analogue world, they do not seem to be able to agree on specifics. Furthermore, “the” regulation of “the” Internet does not exist. Nye (2014) has shown that the Internet is regulated through an elaborate cyber regime complex that has pockets of dense regulation in some subject areas as well as patches that are largely unregulated. Moreover, there are many aspects on which states are still struggling to find an effective governance structure to address the issues at hand (see also Klimburg and Faesen 2020 in this volume). Moreover, some elements of governance are firmly in the hands of private parties (companies, the technical community), whereas others—for example, military, intelligence, and diplomatic—are firmly in the hands of states. The mix between public and private actors in Internet governance is called “multistakeholder governance,” a concept that is embraced by Western liberal states (at least in theory) but is disputed by states that favor a much stronger role for sovereign states in the regulation and governance of cyberspace. States like Russia and China would like to bring “Internet governance” into a multilateral setting where sovereign states, rather than a wide array of stakeholders, steer the direction of cyberspace. This archetypical divide between multistakeholderism and multilateralism when talking about cybersecurity and Internet governance structures is connecting