"Virtual" Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law

By Schmitt, Michael N. | Chicago Journal of International Law, Summer 2018 | Go to article overview

"Virtual" Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law


Schmitt, Michael N., Chicago Journal of International Law


Table of Contents

I. Introduction..........................32

П. The Context.....................33

III. Breach of Legal Obligation.................39

A. Violation of Sovereignty.............39

B. Intervention..................48

C. Due Diligence..................53

D. Other Breaches of International Law................55

IV. Attribution.................58

V. Responses ...................63

VI. Reflections on Grey Areas.................66

I. Introduction

In the aftermath of the 2016 presidential election, outgoing administration officials, including President Barack Obama and senior leaders of the intelligence community, accused the Russian government of meddling in U.S. elections.1 European leaders raised similar concerns regarding Russian interference in European elections.2 In contrast, President Donald Trump labeled the claims a hoax, announced that he believed Russian President Vladimir Putin's denials of meddling, and called the intelligence agency directors "political hacks."3 Now, more than a year after his inauguration, President Trump continues to claim that "the Russians had no impact on our votes whatsoever."4

The possibility that one State might interfere in the political processes of another is hardly shocking. Indeed, the U.S. has a long history of involving itself coverdy and overdy in foreign elections.5 But targeting a "super power" with an influence campaign that exploited social media and remotely conducting active intrusions into its cyber infrastructure marked a significant escalation in election meddling.6 Various aspects of the Russian campaign almost certainly violated U.S. law, as suggested by the U.S. Department of justice's February 2018 indictment under U.S. law of numerous Russians and Russian entities with close ties to the government.7 Far less certain is the character of the operations under international law.

This Article addresses the legality of both the Russian influence campaign and, since it is a growing phenomenon, cyber meddling in general. It attempts to pinpoint when cyber election meddling amounts to one or more "internationally wrongful acts," that is, when it is unlawful under international law and identifies responses available to the target State under international law.

Such "internationally wrongful acts" consist of two elements.8 First, there must be a breach of a State's legal obligation through either commission or omission. Second, the act in question must be attributable to the State concerned pursuant to the law of State responsibility. Following the examination of these two issues as applied to cyber operations, the Article turns to possible responses under international law by a State that is the target of cyber election meddling. Determining that many cyber operations lie within a "grey zone" of legal uncertainty, particularly with respect to the applicable legal thresholds for unlawfulness,9 it concludes with the author's reflections on the consequences of this uncertainty vis-â-vis cyber election meddling.

II. The Context

The most professional and thorough open-source analysis of the Russian influence campaign is the summary of a classified report on the matter prepared by the U.S. Central Intelligence Agency (CIA), Federal Bureau of Investigation (FBI), and the National Security Agency (NSA) under the auspices of the Office of the Director of National Intelligence (ODNI).10 Released less than two weeks before President Trump's inauguration, the report's key findings, offered with a "high degree of confidence,"11 were straightforward:

Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the U.S. presidential election. Russia's goals were to undermine public faith in the U.S. democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump. …

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