No State Is an Island in Cyberspace

5 Journal of Law and Cyber Warfare 4, (2016)

39 Pages Posted: 14 Aug 2016 Last revised: 21 Aug 2016

See all articles by Jessica Zhanna Malekos Smith

Jessica Zhanna Malekos Smith

Duke Law School; Kings College London, Department of War Studies, Students

Date Written: August 12, 2016

Abstract

Economic espionage against one state is an affront to the economic stability of all; for no state is an island in cyberspace. But does a state’s difficulty in attributing a hostile cyber act to its true provenance challenge the enforcement of international law in cyberspace? For if a cyber actor can remain anonymous, or impervious to sanctions, do international accords prohibiting the cyber-enabled theft of intellectual property hold any measurable deterrent effect? Given the distinct cultural norms embedded in distinguishing between permissible and impermissible intelligence collection, a dispute resolution framework that accounts for both cultural disparities and the complexities of attribution, is needed. This Article therefore provides a legal theory – a Cyber Espionage Predominant Purpose Test – for equitably resolving international disputes concerning cyber espionage operations that involve mixed elements of national security espionage and commercial espionage.

Keywords: Economic Espionage, Attribution, Cyber Espionage, China, International Law, Cyberspace, Security

Suggested Citation

Malekos Smith, Jessica Zhanna, No State Is an Island in Cyberspace (August 12, 2016). 5 Journal of Law and Cyber Warfare 4, (2016). Available at SSRN: https://ssrn.com/abstract=2822576

Jessica Zhanna Malekos Smith (Contact Author)

Duke Law School ( email )

210 Science Drive
Durham, NC 27708-0204
United States

Kings College London, Department of War Studies, Students ( email )

King's College London, Strand
London, WC2R 2LS
United Kingdom

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