Cyber Law and Espionage Law as Communicating Vessels

Proceedings of the 10th International Conference on Cyber Conflict, CyCon X: Maximising Effects, NATO Cooperative Cyber Defence Centre of Excellence (CCDCOE) (2018)

24 Pages Posted: 10 Jan 2018 Last revised: 27 Jun 2018

See all articles by Asaf Lubin

Asaf Lubin

Yale University; Berkman Klein Center for Internet & Society; Yale University - Information Society Project

Date Written: March 17, 2018

Abstract

Existing legal literature would have us assume that espionage operations and “below-the-threshold” cyber operations are doctrinally distinct. Whereas one is subject to the scant, amorphous, and under-developed legal framework of espionage law, the other is subject to an emerging, ever-evolving body of legal rules, known cumulatively as cyber law. This dichotomy, however, is erroneous and misleading. In practice, espionage and cyber law function as communicating vessels, and so are better conceived as two elements of a complex system, Information Warfare (IW). This paper therefore rst draws attention to the similarities between the practices – the fact that the actors, technologies, and targets are interchangeable, as are the knee-jerk legal reactions of the international community. In light of the convergence between peacetime Low-Intensity Cyber Operations (LICOs) and peacetime Espionage Operations (EOs) the two should be subjected to a single regulatory framework, one which recognizes the role intelligence plays in our public world order and which adopts a contextual and consequential method of inquiry.

The paper proceeds in the following order: Part 2 provides a descriptive account of the unique symbiotic relationship between espionage and cyber law, and further explains the reasons for this dynamic. Part 3 places the discussion surrounding this relationship within the broader discourse on IW, making the claim that the convergence between EOs and LICOs, as described in Part 2, could further be explained by an even larger convergence across all the various elements of the informational environment. Parts 2 and 3 then serve as the backdrop for Part 4, which details the attempt of the drafters of the Tallinn Manual 2.0 to compartmentalize espionage law and cyber law, and the deficits of their approach. The paper concludes by proposing an alternative holistic understanding of espionage law, grounded in general principles of law, which is more practically transferable to the cyber realm.

Keywords: International Law, Information Warfare, Espionage, Cyber Law, Tallinn Manual 2.0, Sovereignty, Diplomatic Law, Consular Law, General Principles of Law

Suggested Citation

Lubin, Asaf, Cyber Law and Espionage Law as Communicating Vessels (March 17, 2018). Proceedings of the 10th International Conference on Cyber Conflict, CyCon X: Maximising Effects, NATO Cooperative Cyber Defence Centre of Excellence (CCDCOE) (2018). Available at SSRN: https://ssrn.com/abstract=3099769 or http://dx.doi.org/10.2139/ssrn.3099769

Asaf Lubin (Contact Author)

Yale University ( email )

New Haven, CT 06520
United States

Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
153
Abstract Views
982
rank
198,401
PlumX Metrics