International Cybertorts: Expanding State Accountability in Cyberspace
80 Pages Posted: 13 Mar 2017 Last revised: 3 May 2018
Date Written: March 1, 2016
The Sony and DNC hacks exposed a significant gap in the international law of cyberspace: States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not mere “cybercrimes” and do not constitute “cyberwarfare,” and states appear unwilling to extend existing definitions of unlawful acts permitting countermeasures to such conduct (possibly to avoid creating precedent restricting their own cyberoperations). As a result, victim states have few effective and non-escalatory responsive options, and the harms associated with these incidents tend to lie where they fall.
This Article draws on tort law and international law principles to construct a comprehensive system of state accountability in cyberspace, where states are both liable for their harmful acts and responsible for their wrongful ones. Namely, it identifies international cybertorts—acts that employ, infect, or undermine the internet, a computer system, or a network and thereby cause significant transboundary harm—as distinct from cybercrime and cyberwarfare. Not only does this term distinguish a specific kind of harmful act, it highlights how the principle of state liability for transboundary harms (which holds states accountable for the harmful consequences of their lawful and unlawful activities) could usefully complement the existing law of state responsibility (which applies only to unlawful state acts) to create a comprehensive system of state accountability in cyberspace. Furthermore, imposing state liability for international cybertorts preserves a bounded grey zone for state experimentation in cyberspace, minimizes the likelihood that victim states will resort to escalatory responses, and increases the chance that those harmed by cyberoperations will be compensated.
Keywords: Cyberspace, Cyberwarfare, Cybercrime, Cybertorts, State Responsibility, State Liability, Accountability
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