By William Gray
Few things in human history have had such an effect on society as the internet. Today, nearly all aspects of business can be conducted over the web. With all this information floating around in cyberspace, how does one protect themselves? Modern day computer science allows a user to install firewalls and encrypt their messages in an attempt to hide their online activity. However, these safety procedures are no match for your run of the mill hacker. A hacker’s tool is a computer and the internet is their playground. Although the vast majority of hackers have innocent motives, government agents and Intelligence Agencies across the globe have adopted this technique as their main form of international espionage. The days of sleeper cell and double agents may have died with the fall of the Soviet Union. Now, an intelligence officer may sit comfortably at his desk and retrieve confidential information from government servers in countries half way across the globe. Are these actions legal? Can hacking be considered an act of aggression? What does the United Nations and international law say about this?
In July 2016 the Democratic National Convention (“DNC”) was held in Philadelphia. The purpose of the convention is for party members to rally around their presidential nominee and to establish strategy for all Democratic elected officials as they get set to take office. Although this event is designed to reinforce pride in the Democratic Party, this past DNC was surrounded by controversy. Just before the national convention was scheduled to begin, word got out that DNC servers might have been hacked. Guccifer 2.0, DCleaks.com, and WikiLeaks began publishing confidential DNC information, including roughly 19,000 emails. Although the scope of the emails covered multiple topic, perhaps the most astonishing was the blatant DNC support for Hilary Clinton over Bernie Sanders. Several of the emails mentioned Senator Sanders dropping out of the democratic primary race months before the convention was scheduled to begin. Thus, controversy ensued. Supporters claimed that the DNC was corrupt and was pushing a Clinton run administration over Sanders. The aftermath of these private emails made public became a serious problem for the now Democratic presidential nominee, Hilary Clinton. Instead of the Democratic Party rallying behind Clinton as the presidential nominee, Sanders supporters began to actively speak out against the party. It took countless hours of damage control in order to get the situation under control and prepare to move forward to the general election
On Friday, October 7, 2016, the United States officially blamed Russia for the hacking of the DNC network and subsequent release of information. American intelligence agencies released a statement saying they believed Russia purposefully hacked and released DNC information in an attempt to tamper with the presidential election. Intelligence Agencies furthered this by stating that a hacking on this level could not have been accomplished without it being a direct order from Russia’s most senior officers. In the days since the accusation, senior Russian officials have denied any involvement in the hacking, although the sources releasing the information conform to Russian methods and motivations. Russian President Vladimir Putin released a statement saying, “Everyone is saying, ‘Who did it?’ But does it matter that much? It’s what’s inside the information that matters.” This neither confirms nor denies the allegations brought against his country. Regardless of who hacked the DNC servers, the United States has fallen victim to cybercrime a number of times in recent years. These events beg the question “what legal action can the United States take to counter these ongoing cyber-attacks?”
A hacker is defined as one who uses a computer to gain unauthorized access to data and information. The issue with bringing a legal claim in these scenarios is that the person who hacked your network could be a government intelligence agency or a random person in their basement hacking networks for amusement. However, hacking into a private government network from overseas is another story. In order to resolve this issue one must turn to international law and determine if there is a possible solution. Article 2(4) of the United Nations Charter states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Since the drafting of this article, it has been commonly recognized that cyberwarfare would include tools designed to cause death or injury to an individual or the destruction of objects and infrastructure. The focus here should be on “infrastructure”. If the true purpose of the DNC hack and release was to steer the direction of the presidential election, this would directly affect the political infrastructure of the United States. By the definition and interpretation of “use of force”, this would qualify as a use of force against the United States. In the event that the United States is able to accurately direct blame for this assault, they may be justified in taking series measures.
Although Russia seems to be the obvious culprit, we should not be so fast to jump to conclusions. All three websites denied any connection to the Russian government and have sworn to have acted independently. Although this may feel reassuring that a state v. state conflict may not erupt from this event, one should not be so naive to overlook the horrors of a possible “lone wolf” cyber-attack. In the event that a state actor did not carry out the hack, this would mean private citizens across the globe now have the capability to hack even the most secure networks on Earth. What are the possible ramifications of this? Is privacy a thing of the past? How will the law evolve to thwart such attacks in the future? Although these questions may never have crossed the minds of the framers of the UN Charter, they are very real threats today and must be taken seriously.
Student Bio: William Gray is currently a 2L at Suffolk University Law School and a Staff Member of the Journal of High Technology Law. He holds a B.S. in Political Science with a minor in Criminal Justice from Quinnipiac University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
