Election hacking and international law

Ido Kilovaty’s Doxfare – Election Hacking as Prohibited Intervention, 9 Harvard National Security Journal ___ (Spring 2018) “argues that foreign actors meddling with a legitimate political process in another State through cyberspace ought to be in violation of the norm of non-intervention. Although seemingly the constitutive coercion element is absent, international law should adapt to the digital era’s threats, and consider non-coercive interferences that constitute “doxfare” – the public release of sensitive documents – with the intent of disrupting legitimate domestic processes, as violations of the norm. As this paper contends, cyberspace operations are distinct in their effects from their physical counterparts, and a traditional standard of coercion for the norm on non-intervention is outdated and requires the introduction of a more nuanced approach, that takes into account interventions that are non-coercive in nature.”

Jens David Ohlin’s Did Russian Cyber-Interference in the 2016 Election Violate International Law?, Texas Law Review (Forthcoming 2018):  “When it was revealed that the Russian government interfered in the 2016 U.S. presidential election by hacking into the email system of the Democratic National Committee and releasing its emails, international lawyers were divided over whether the cyber-attack violated international law. President Obama seemingly went out of his way to describe the attack as a mere violation of “established international norms of behavior,” though some international lawyers were more willing to describe the cyber-attack as a violation of international law. However, identifying the exact legal norm that was contravened turns out to be harder than it might otherwise appear. To the layperson, the Russian hacking constituted an impermissible (and perhaps shocking) interference in the American political process—an intervention that non-lawyers would not hesitate to label a “violation of sovereignty” as that term is used in political or diplomatic discourse. The problem arises when one attempts to translate that common-sense intuition into legal discourse. At that point, the translation effort breaks down for a variety of reasons. The genesis of the difficulty is that none of the standard rubrics for understanding illegal interventions clearly and unambiguously applies to the facts in question. That being said, it would be a mistake to hastily reject our common-sense intuitions about the impropriety of Russian hacking during the election. The lack of fit with the doctrinal requirements for an illegal intervention against another state’s sovereignty is simply an indication that the notions of “sovereignty” and “intervention”—though mainstays of contemporary public international law doctrine—are poorly suited to analyzing the legality of the conduct in this case. A far better rubric for analyzing the behavior is the notion of self-determination, a legal concept that captures the right of a people to decide, for themselves, both their political arrangements and their future destiny.”

— Joe

 

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