Academic journal article Journal of National Security Law & Policy

Spying and Fighting in Cyberspace: What Is Which?

Academic journal article Journal of National Security Law & Policy

Spying and Fighting in Cyberspace: What Is Which?

Article excerpt

Introduction

Traditionally, espionage has inhabited a niche between order and chaos. States have recognized the existence of espionage and enacted domestic legislation to prohibit it, but international law is silent on the subject.1 On the other hand, States accept espionage as part of the business of international relations and are generally tolerant of it. That may be changing, however. Cyberspace, especially the Internet, has become an integral part of everyday life. The use of cyberspace for espionage has generated difficult discussions about the nature of cyberspace, the extent of national sovereignty, and the importance of individual privacy, among other issues, all of which are relevant in a conversation about espionage. This article focuses on another issue, which is the overlap of espionage and aggressive cyber operations. Confusion about the intent behind an intrusion could lead to a misreading of aggressive intent, unnecessary escalation of tensions, or a false sense of security in the opening act of significant cyber aggression. This article also discusses the United States' stance on dividing espionage into categories depending on the purpose.

Rapid improvements in computer technology and techniques, as well as the exponential rise in the amount of data stored online, have driven a closer look at the subject of cyber espionage, in particular how it differs from traditional methods of spying. The speed of access and exfiltration in cyber espionage operations can rapidly result in libraries of information, dwarfing the information that can be obtained through more traditional methods of espionage.2 Although some of the issues discussed here are also relevant in traditional espionage operations, they have seemed less so in the past. They may have come to the forefront now because of the effectiveness and pervasiveness of cyber espionage. This article will focus only on cyber methods of espionage.

The United States defines espionage as "[t]he act of obtaining, delivering, transmitting, communicating, or receiving information about the national defense with an intent, or reason to believe, that the information may be used to the injury of the United States or to the advantage of any foreign nation."3

The distinction between cyber espionage and more aggressive cyber operations is critical under international law. Espionage has been considered unregulated under the international legal system - meaning cyber activities that constitute espionage are neither lawful nor unlawful under international law.4 As a result, States freely engage in espionage and generally accept it from other States, with results limited to punishing spies under domestic law and the expulsion of diplomats. This is in stark contrast to the treatment of aggressive activity, which might constitute an illegal use of force under the U.N. Charter.5

I. NOT ALL ESPIONAGE IS EQUAL

Historically, the United States appears to have agreed that international law should not apply to traditional espionage and that instead the punishment of spies should be left to domestic law. With the rise of cyber espionage, however, the United States has begun to change its position.6 ?Traditional espionage encompasses a government?s efforts to acquire clandestinely classified or otherwise protected information from a foreign government,? explains cyber security expert, David P. Fidler. ?Economic espionage involves a State?s attempts to acquire covertly trade secrets held by foreign private enterprises.?7 The United States manifested this distinction in the unprecedented indictment of five Chinese military officers for engaging in cyber espionage from China, in Administration statements critical of economic espionage, and in the U.S.-China agreement prohibiting cyber economic espionage for commercial gain, but is silent on other categories of espionage.8

In February 2013, the cyber security company Mandiant published a compelling portfolio of evidence tying the Chinese military to cyber economic espionage. …

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