State Responsibility and Attribution of Cyber Intrusions after Tallinn 2.0

By Banks, William | Texas Law Review, June 1, 2017 | Go to article overview

State Responsibility and Attribution of Cyber Intrusions after Tallinn 2.0


Banks, William, Texas Law Review


On July 22, 2016, WikiLeaks released a collection of more than 18,000 e-mails from the formally impartial Democratic National Committee (DNC) that showed bias against the Bernie Sanders campaign and a cozy relationship between the DNC and its top officials with the Hillary Clinton campaign.1 Apparently timed to embarrass and disrupt the DNC and the Clinton campaign on the eve of the Democratic National Convention, the leak led to the resignation of key DNC officials, a formal apology to Senator Sanders and his supporters, and lingering impressions that the DNC was anything but neutral during the campaign and that the Clinton campaign could not be trusted.2 On October 7, WikiLeaks began serial publication of thousands of e-mails to and from John D. Podesta, Mrs. Clinton's campaign manager. Released nearly daily over the last month of the campaign, the Podesta e-mails led to news reports and manipulation on social media that focused on tensions inside the Clinton campaign and campaign insiders' opinions that Clinton was not a strong candidate, among other things.3 A second batch of DNC e-mails was released on November 6, two days before the election.4

The Federal Bureau of Investigation (FBI) first contacted the DNC in September 2015 to warn the Democrats that at least one of their computer systems had been compromised by hackers linked to the Russian government.5 Inept responses and inattention from the DNC staff and casual follow-up from the FBI allowed the hackers free reign in DNC networks for more than six months until senior DNC officials learned of the hacks and hired a private security firm to protect their systems.6

Meanwhile, reports that Russian intelligence agencies were responsible for hacking the DNC, disseminating the materials to WikiLeaks, and encouraging or reporting "fake news" on social media and in nonmainstream publications swirled around the last months of the presidential election campaign.7 A hacker calling itself Guccifer 2.0 took credit for the leaks,8 and WikiLeaks would not reveal its source.9 Over the remainder of the summer and early fall of 2016, several cyber experts and private security firms publicly claimed that the DNC hack had been carried out by Russian intelligence operatives and was directly controlled by the Russian government.10

On October 7, the Department of Homeland Security (DHS) and the Office of the Director of National Intelligence (ODNI) issued a joint statement that the Intelligence Community was confident that the Russian government was responsible for the hack and publication of the materials in its attempt to "interfere with the US election process."11 Although the joint statement constituted an official attribution of the DNC hack to the Russian government, the statement provided no evidence to support its assessment.

On December 9, the Central Intelligence Agency (CIA) briefed members of Congress on an Intelligence Community assessment that concluded the Russian government conducted these cyber operations during the 2016 presidential election in order to assist the candidacy of Donald Trump.12 According to the Intelligence Community assessment, intelligence assets with direct ties to the Kremlin provided the DNC e-mails as well as others from prominent Hillary Clinton supporters, such as campaign chairman John Podesta, to WikiLeaks.13 Their conclusion that Russia was behind the hack was delivered with "high confidence."14 The CIA briefing was not a formal assessment by the Intelligence Community because of minor disagreements among the agencies and because intelligence officials did not yet have specific intelligence demonstrating that Russian government officials directed the hackers to pass along their information to WikiLeaks.15 On December 16, CIA Director John Brennan stated that the FBI and DNI supported the CIA's conclusion that the Russian government interfered in the election to assist the Trump candidacy and to attack U.S. democratic processes. …

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State Responsibility and Attribution of Cyber Intrusions after Tallinn 2.0
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