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Making Democracy Harder to Hack: Should Elections Be Classified as ‘Critical Infrastructure?’

40 Pages Posted: 19 Oct 2016 Last revised: 17 Nov 2016

Scott Shackelford

Indiana University - Kelley School of Business - Department of Business Law; Harvard Kennedy School Belfer Center for Science & International Affairs; Center for Applied Cybersecurity Research; Stanford Center for Internet and Society; Stanford Law School

Bruce Schneier

Harvard University - Berkman Klein Center for Internet & Society; Harvard University - Harvard Kennedy School (HKS)

Michael Sulmeyer

Harvard University - Belfer Center for Science and International Affairs

Anne E. Boustead

University of Arizona - School of Government and Public Policy

Ben Buchanan

Harvard University - Belfer Center for Science and International Affairs

Amanda Craig

Indiana University Maurer School of Law

Trey Herr

Harvard Kennedy School (HKS), Belfer Center for Science and International Affairs (BCSIA)

Jessica Zhanna Malekos Smith

Kings College London, Department of War Studies, Students

Date Written: October 14, 2016

Abstract

With the Russian government hack of the Democratic National Convention email servers, and further leaks expected over the coming months that could influence an election, the drama of the 2016 U.S. presidential race highlights an important point: Nefarious hackers do not just pose a risk to vulnerable companies, cyber attacks can potentially impact the trajectory of democracies.  Yet, to date, a consensus has not been reached as to the desirability and feasibility of reclassifying elections, in particular voting machines, as critical infrastructure due in part to the long history of local and state control of voting procedures. This Article takes on the debate in the U.S. using the 2016 elections as a case study but puts the issue in a global context with in-depth case studies from South Africa, Estonia, Brazil, Germany, and India. Governance best practices are analyzed by reviewing these differing approaches to securing elections, including the extent to which trend lines are converging or diverging. This investigation will, in turn, help inform ongoing minilateral efforts at cybersecurity norm building in the critical infrastructure context, which are considered here for the first time in the literature through the lens of polycentric governance.

Keywords: cybersecurity, cyber attack, election, voting, critical infrastructure

Suggested Citation

Shackelford, Scott and Schneier, Bruce and Sulmeyer, Michael and Boustead, Anne E. and Buchanan, Ben and Craig, Amanda and Herr, Trey and Malekos Smith, Jessica Zhanna, Making Democracy Harder to Hack: Should Elections Be Classified as ‘Critical Infrastructure?’ (October 14, 2016). University of Michigan Journal of Law Reform, 2017; Kelley School of Business Research Paper No. 16-75. Available at SSRN: https://ssrn.com/abstract=2852461

Scott J. Shackelford (Contact Author)

Indiana University - Kelley School of Business - Department of Business Law ( email )

Bloomington, IN 47405
United States

Harvard Kennedy School Belfer Center for Science & International Affairs ( email )

79 JFK Street
Cambridge, MA 02138
United States

Center for Applied Cybersecurity Research ( email )

Wylie Hall 105
100 South Woodlawn
Bloomington, IN 47405
United States

Stanford Center for Internet and Society ( email )

Palo Alto, CA
United States

Stanford Law School ( email )

Stanford, CA 94305
United States

Bruce Schneier

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
Cambridge, MA 02138
United States

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Michael Sulmeyer

Harvard University - Belfer Center for Science and International Affairs ( email )

Cambridge, MA 02139
United States

Anne E. Boustead

University of Arizona - School of Government and Public Policy ( email )

315 Social Science Building
Tucson, AZ 85721
United States

Ben Buchanan

Harvard University - Belfer Center for Science and International Affairs ( email )

Cambridge, MA 02139
United States

Amanda Craig

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Trey Herr

Harvard Kennedy School (HKS), Belfer Center for Science and International Affairs (BCSIA) ( email )

79 JFK Street
Cambridge, MA 02138
United States

Jessica Zhanna Malekos Smith

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

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

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