The Law of Cyber Interference in Elections
39 Pages Posted: 3 Oct 2017
Date Written: May 15, 2017
Cyberattacks are increasing in frequency, publicity, and impact, making significant cyber episodes are the hallmark of modern foreign policy. One sub-set of these cyber attacks has been state-supported interference in elections: ranging from email hacking and doxing in the 2016 U.S. presidential election, to cyber attacks on the Bundestag surrounding the 2015 German Parliamentary elections, to dissemination of “fake news” surrounding 2016 Italian referendum votes. But international law gives States limited means by which to respond to election interference. Faced with limited options for so-called “hacking back,” state officials and international legal experts alike have championed creative interpretations of international law to allow retribution on state hackers: invoking countermeasures, or the notion that a rogue state can be brought, forcefully, into line with international legal obligations. This Article explores the international legal framework that apples to cyber interference in elections. It makes the normative argument that stretching countermeasures to encompass cyber episodes is not only wrong, but also dangerous. Unless modern understanding of sovereignty and the norm of non-intervention are updated for a networked age, countermeasures represent an impermissible expansion of the use of force.
Keywords: law of war, international law, cyber, election interference, human rights
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