Scenario 14: Ransomware campaign

__NUMBEREDHEADINGS__ Municipal governments and health care providers in one State fall victim to a ransomware campaign launched by a non-State group in a second State. The ransomware campaign disables municipal and health care services in the first State. The scenario explores how the ransomware campaign may be classified under international law. It first considers whether the campaign is a breach of an international obligation attributable to a State. It then discusses the possible legal responses available to the victim State.

Keywords
Ransomware, cyber operation, use of force, prohibition of intervention, sovereignty, due diligence, attribution, retorsion

Facts
[F1] A previously unknown strain of ransomware is directed toward several municipal governments and a variety of health care services providers in State A through the use of phishing emails. Upon opening the emails by government and health care services employees, computer systems are affected. In a major metropolitan city in State A, the local court is forced offline because the ransomware has encrypted its computer systems and the police are forced to revert to using pen and paper to issue traffic citations. Thousands of computers at the State A Department of Transportation stop working. City authorities refuse to pay ransom to the attackers and are forced to spend considerable sums to repair and restore the affected computer systems.

[F2] The same ransomware infects hospital systems in a separate city in State A. Doctors are unable to access patient data stored digitally. Staff resort to using paper charts, viewing X-rays on light boxes, and transmitting messages in person. Health records system of a major company incorporated in State A is also infected, leaving thousands of patient medical files inaccessible. The inaccessibility of patient data coupled with the disruption to the hospital computer systems results in the inability of the medical staff to perform critical surgeries. Patients are admitted to the emergency rooms but cannot be operated on in a timely manner, resulting in several otherwise preventable injuries, but no loss of life. Lesser harm is caused to patients who cannot be given necessary medication because their medical records are inaccessible.

[F3] Authorities in State A determine that the ransomware was created by a group of hackers in State B. The hackers’ relationship to State B is not clear. However, the methodology utilized by the hackers bears a striking similarity to a previous cyber operation attributed to State B. Moreover, State B, while formally denying any involvement in the incidents, praises the actions of the hackers as a just and foreseeable reaction to what State B characterizes as State A’s foreign policy misdeeds. State A and State B have strained relations.

[F4] State A indicts the hackers, but State B does not cooperate in extraditing the hackers to State A for prosecution under criminal laws of State A for several reasons. Firstly, State B is prohibited by its constitution from extraditing its citizen for criminal prosecution in other States. Secondly, relations between State A and State B are such that, even in the absence of the foregoing reasons, State B would be disinclined to co-operate with State A. Finally, State media in State B has lauded the actions of the hackers as a just response to State A’s purported misdeeds.

Examples

 * Sony Pictures Entertainment attack (2014)

Legal analysis
For a general overview of the structure of analysis in this section, see Note on the structure of articles.

[L1] The analysis in this scenario focuses on the legal qualification of the ransomware attacks from the perspective of international law. In particular, it examines whether the relevant conduct is attributable to State B and whether it amounts to a breach of an international obligation owed by State B to State A.

State organs and exercise of governmental authority
[L2] It is clear that the hackers are not a State organ of State B, nor are they exercising governmental authority on behalf of State B.

Non-State actors
[L3] As non-State actors, the actions of the hackers may still be attributable to State B if they were acting under the instructions or effective control of State B or if State B acknowledges and adopts the actions as its own. By condoning the actions of the hackers, State B may have acknowledged and adopted the actions as its own. However, the acknowledgment and adoption standard is applied narrowly and requires more State involvement that mere endorsement or expression of approval. State B’s approval of the hackers’ actions by itself does not allow for attribution of the actions to State B. Moreover, a minority view holds that the acknowledgement and adoption standard only applies prospectively, and, thus, under this view, State B’s praise of the actions after the fact would not suffice to meet the standard.

Breach of an international obligation
[L4] This section considers whether the ransomware attacks are a breach of an international obligation—specifically, the prohibition on the use of force, the prohibition on intervention, the obligation to respect the sovereignty of other States, and the duty of due diligence.

Use of force
[L5] It is unlikely that the ransomware attacks amount to a use of force. A following consideration of eight factors—severity, immediacy, directness, invasiveness, measurability of effects, military character, State involvement, and presumptive legality—proves that to be so.

[L6] Crucially, the ransomware attacks’ overall severity was significant. While the disruption in municipal functions caused only inconvenience for citizens and municipal agencies, the harm that resulted from the disruption to medical services was significant. Several patients admitted to hospitals in State A for emergency procedures were unable to be operated on in a timely manner, in several instances resulting in otherwise preventable injury.

[L7] The consequences of the ransomware attacks did not follow immediately from the cyber activities. In most cases, the penetration of the affected systems occurred weeks before the ransom notice was directed to the victim, and monetary costs incurred by the victims to recover data and restore their systems followed weeks or months thereafter. States are more likely to view a cyber operation that causes immediate consequences as a use of force, as distinguishable from consequences that are delayed or manifest slowly over time. Likewise, the less opportunity a State has to mitigate or forestall the effects of a cyber operation, the more likely it is that the operation will be considered as a use of force. State A, in fact, had the choice, of making a ransom payment and thus preventing the consequences of the attacks.

[L8] The effects of the ransomware attacks on State A were not directly connected to the underlying cyber activity. Directness depends on the degree of attenuation between the initial act and its consequences. The initial act in this case was the sending of phishing emails. When those emails were mistakenly opened, the ransomware infected the recipient’s computers. Computer files were then encrypted and rendered inaccessible. Because the victims failed to make ransom payments, the files were not readily decrypted. Inability to access the files ultimately and indirectly resulted in harm to the victim organizations. While the attacks did have indirect consequences, in the form of the costs incurred to restore backed-up data and to implement improved security, the degree of attenuation between the initial act and its consequences means that directness of the attacks’ cause and effects was not comparable to the direct harm caused to people or objects by a kinetic attack.

[L9] The hackers did indeed invasively probe the networks of municipal governments and healthcare providers; however, these were not top-secret networks that were necessarily intended to have the highest level of security. And the networks that the hackers did access were not amongst the most secure maintained by the victims: for instance, emergency response networks were untouched. The effects of the ransomware attacks cannot be calculated with certainty, even if a numerical sum can be affixed to the remediation costs.

[L10] There is no suggestion that the attacks had a military character. No link has been publicly asserted between the hackers and the military of State B or of any other State. Nor were the military forces of State A the target of the ransomware campaign.

[L11] Likewise, no State is publicly alleged to have been involved, either directly or indirectly, in the campaign.

[L12] Finally, the reconnaissance and network probing activities of the hackers were qualitatively similar to espionage activities, which are not per se regulated under international law and are not presumptively judged to be uses of use.

[L13] On consideration of each one of the foregoing factors, severity is the only factor that could feasibly cause the ransomware attacks to meet the criteria of a use of force. However, severity is a subject to a de minimis rule. It is likely that the severity of the ransomware attacks was not so great as to meet that de minimis. While the otherwise preventable injuries to persons are certainly more than mere inconveniences, it is unclear whether the limited number of injuries, in light of the ransomware attacks’ failure to meet any of the other criteria, renders the attacks so severe as to constitute a use of force. However, scholars and states may reach different conclusions in their assessment.

Prohibition of intervention
[L14] There is no suggestion that the ransomware attacks in any way involved the external affairs of State A, but certain effects of the ransomware did implicate the domaine réservé of State A. For example, the conduct of traffic police or the operation of the Department of Transportation are certainly fields of activity not committed to international law but possibly form part of the domaine réservé of State A.

[L15] It is less likely that the attacks were coercive efforts designed to influence outcomes in those fields of activity. While the hackers may have manipulated hospitals in State A and the municipal government of a city in State A into making a choice between paying a ransom or spending considerably more to remedy the effects, that choice was not coercive in the sense that it was designed to compel the State A to adopt a particular policy with regard to traffic, policing, hospitals, or municipal policy. Instead, the coercion was intended to compel the payment of ransom.

[L16] Accordingly, the ransomware attacks were not coercive interventions in the domaine réservé or external affairs of State A.

Obligation to respect the sovereignty of other States
[L17] The attacks caused injury to persons, and they resulted in severe losses of functionality. Everything from normal employee workstations at the Department of Transportation to sophisticated surgical systems and diagnostic equipment at the hospital was unable to function. Medical services were disrupted. Municipal offices were forced offline for weeks. The loss of functionality required spending considerable sums of money to remediate.

[L18] Moreover, the ransomware attacks also interfered with the performance of inherently governmental functions. The court and police operations of State A’s cities are inherently governmental functions, which although not usurped were certainly interfered with.

[L19] Thus, provided that the attacks were attributable to State B (on which, see above), they amounted to violations of the State A’s sovereignty.

Due diligence obligation
[L20] Breaches of the duty of due diligence do not require that the act in question be attributable to a State. Instead, the duty of due diligence assumes the role of three parties: the target State toward which the cyber operation is directed; the territorial State; and a third-party author of the cyber operation. The third party may be another State, a non-State group, or a private person. While, in general, it is States, not individuals or private entities, that are able to violate international law, cyber operations carried out by individuals or private entities that nevertheless result in serious adverse consequences fall within a State’s due diligence obligation.

[L21] Thus, if State B has knowledge of the hackers’ operations, those operations affect the rights of and cause serious adverse consequences to State A, and State A intimates that State B take action to stop the interference in its internal affairs, State B has a duty to take feasible action to stop the ransomware attacks. While the harm caused by a cyber activity must be serious, the due diligence principle does not require that there be physical damage to objects or injuries to persons.

[L22] The ransomware attacks affected State A’s sovereign right to perform inherently governmental functions—operating courts and police departments. Moreover, the attacks caused serious adverse consequences. The loss of functionality in hospital equipment caused injury to patients, and the encryption of health records led to improper medical care resulting in injury to patients.

[L23] Knowledge, actual and constructive, is a constitutive element of the duty of due diligence. A State is in breach even if it is unaware of cyber activity conducted from its territory but “objectively should have known that its territory was being used.” State A believes that State B knew that the hackers were operating from its territory. State B, on the other hand, argues that it had no such knowledge. It is not reasonable to assert that State B objectively should have known that the hackers were utilizing its cyber infrastructure to launch attacks against State A because the ransomware employed was complex and previously unknown. State B cannot be expected to prevent the use of malware of which is it entirely unaware. Given that the knowledge requirement was not met in this case, State B’s lack of response did not amount to a violation of its duty of due diligence.

Permissible responses by State A
[L24] Having established that the ransomware attacks do not meet the criteria of an internationally wrongful act, this section examines the options available for State B to take in response. Cyber operations may, in general, be met with four responses under international law: countermeasures, the plea of necessity, self-defense, and retorsion. For the reasons explained below, only retorsion is available to State A.

Countermeasures
[L25] Countermeasures are not an available response to the ransomware attacks in the present scenario because the object of countermeasures must be a State, and, as seen above, it was not possible to attribute these ransomware attacks to a State. Moreover, there must be an internationally wrongful act to justify countermeasures. Even if there was one, countermeasures should be limited to ensuring that the unlawful act stops, potentially obtaining assurance and guarantees of non-repetition from the responsible State, and compelling the responsible State to make reparations. Because the ransomware incidents have stopped, countermeasures would have to be limited to compelling the responsible State to guarantee that the incidents do not resume and providing compensation for damages. Countermeasures may not be punitive or have a retaliatory effect.

[L26] State A would be advised to take precautions not to violate an obligation owed to a third State if engaging in countermeasures in response to the ransomware attacks even if they were attributable to State B because if the countermeasures were to violate a legal obligation owed to a third State, the State A could itself be in breach of international law. The wrongfulness of such a breach is not precluded by the validity of the countermeasure against the responsible State. Thus, State A could find itself in breach of its international law obligations.

Plea of necessity
[L27] A State’s “essential interest” is not clearly defined. It would certainly include healthcare, justice, and policing. Thus, the ransomware attacks on healthcare service providers and police and court systems certainly impaired essential interests of State A. It is unlikely that the temporary interruption in functionality the ransomware caused was sufficient to put those essential interests in grave and imminent peril. It is also unlikely that no other means existed to safeguard those interests. In any case, the ransomware attacks have abated, if temporarily, and the plea of necessity could only be invoked to end the harmful activity.

Self-defence
[L28] The ransomware attacks did not amount to a use of force. Based on a consideration of following eight factors — severity, immediacy, directness, invasiveness, measurability of effects, military character, State involvement, and presumptive legality — the ransomware campaign is not at the level of a use of force (see above). Because the ransomware attacks failed to meet the criteria of use of force they could equally not amount to an armed attack triggering the right to self-defense. State A therefore has no right under international law to respond to the attacks with force.

Retorsion
[L29] Retorsion is the only way for State A to respond to the ransomware campaign without a determination that another State B has breached an international obligation owed to it. State A is likely to view State B’s refusal to extradite or prosecute the attack’s perpetrators as an unfriendly act. State A may signal its displeasure at State B’s unfriendly action through common methods of retorsion such as expelling State B’s diplomats or imposing financial sanctions on State B.

Checklist
to be added

Bibliography and further reading

 * William Banks, State Responsibility and Attribution of Cyber Intrusions After Tallinn 2.0, 95 Tex. L. Rev. 1487 (2017)
 * ET Jensen and S Watts, ‘A Cyber Duty of Due Diligence: Gentle Civilizer or Crude Destabilizer’ (2017) 95 Tex. L. Rev. 1555
 * Christian Payne & Lorraine Finlay, Addressing Obstacles to Cyber-Attribution, 49 Geo. Wash. Int’l L. Rev. 535 (2017).
 * Michael N. Schmitt, ‘“Below the Threshold” Cyber Operations: The Countermeasures Response Option and International Law’, 54 Va. J. Int’l L. 697 (2014).
 * Michael N Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017).
 * US Department of Defense, Office of the General Counsel, Law of War Manual (June 2015)

Contributions

 * Scenario by: Kenneth Kraszewski
 * Analysis by: Kenneth Kraszewski
 * Reviewed by: TBC