Editing National position of the United States of America (2016)

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This is the national position of the United States of America on international law applicable to cyber operations. The position <ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016]</ref> has been presented by Brian J. Egan, Legal Advisor of the US Department of State, during a speech at Berkeley Law School on 10 November 2016.
 
This is the national position of the United States of America on international law applicable to cyber operations. The position <ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016]</ref> has been presented by Brian J. Egan, Legal Advisor of the US Department of State, during a speech at Berkeley Law School on 10 November 2016.
   
==[[Applicability of international law]]==
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==Applicability of international law==
<section begin=US_2016 applicability />
 
 
"Existing principles of international law form a cornerstone of the United States’ strategic framework of international cyber stability during peacetime and during armed conflict. The U.S. strategic framework is designed to achieve and maintain a stable cyberspace environment where all States and individuals are able to realize its benefits fully, where there are advantages to cooperating against common threats and avoiding conflict, and where there is little incentive for States to engage in disruptive behavior or to attack one another.
 
"Existing principles of international law form a cornerstone of the United States’ strategic framework of international cyber stability during peacetime and during armed conflict. The U.S. strategic framework is designed to achieve and maintain a stable cyberspace environment where all States and individuals are able to realize its benefits fully, where there are advantages to cooperating against common threats and avoiding conflict, and where there is little incentive for States to engage in disruptive behavior or to attack one another.
   
There are three pillars to the U.S. strategic framework, each of which can help to ensure stability in cyberspace by reducing the risks of misperception and escalation. The first is global affirmation of the applicability of existing international law to State activity in cyberspace in both peacetime and during armed conflict. The second is the development of international consensus on certain additional voluntary, non-binding norms of responsible State behavior in cyberspace during peacetime, which is of course the predominant context in which States interact. And the third is the development and implementation of practical confidence-building measures to facilitate inter-State cooperation on cyber-related matters."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 2-3.</ref><section end=US_2016 applicability />
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There are three pillars to the U.S. strategic framework, each of which can help to ensure stability in cyberspace by reducing the risks of misperception and escalation. The first is global affirmation of the applicability of existing international law to State activity in cyberspace in both peacetime and during armed conflict. The second is the development of international consensus on certain additional voluntary, non-binding norms of responsible State behavior in cyberspace during peacetime, which is of course the predominant context in which States interact. And the third is the development and implementation of practical confidence-building measures to facilitate inter-State cooperation on cyber-related matters."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 2-3.</ref>
   
==[[Sovereignty]]==
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==Sovereignty==
 
<section begin=US_2016 sovereignty />
 
<section begin=US_2016 sovereignty />
 
"[..] remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per se violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimis
 
"[..] remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per se violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimis
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Although certain activities—including cyber operations — may violate another State’s domestic law, that is a separate question from whether such activities violate international law. The United States is deeply respectful of other States’ sovereign authority to prescribe laws governing activities in their territory. Disrespecting another State’s domestic laws can have serious legal and foreign policy consequences. As a legal matter, such an action could result in the criminal prosecution and punishment of a State’s agents in the United States or abroad, for example, for offenses such as espionage or for violations of foreign analogs to provisions such as the U.S. Computer Fraud and Abuse Act. From a foreign policy perspective, one can look to the consequences that flow from disclosures related to such programs. But such domestic law and foreign policy issues do not resolve the independent question of whether the activity violates international law."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 11-13.</ref><section end=US_2016 sovereignty />
 
Although certain activities—including cyber operations — may violate another State’s domestic law, that is a separate question from whether such activities violate international law. The United States is deeply respectful of other States’ sovereign authority to prescribe laws governing activities in their territory. Disrespecting another State’s domestic laws can have serious legal and foreign policy consequences. As a legal matter, such an action could result in the criminal prosecution and punishment of a State’s agents in the United States or abroad, for example, for offenses such as espionage or for violations of foreign analogs to provisions such as the U.S. Computer Fraud and Abuse Act. From a foreign policy perspective, one can look to the consequences that flow from disclosures related to such programs. But such domestic law and foreign policy issues do not resolve the independent question of whether the activity violates international law."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 11-13.</ref><section end=US_2016 sovereignty />
   
==[[Prohibition of intervention]]==
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==Prohibition of intervention==
 
<section begin=US_2016 prohibition of intervention />
 
<section begin=US_2016 prohibition of intervention />
 
In certain circumstances, one State’s non-consensual cyber operation in another State’s territory ''could'' violate international law, even if it falls below the threshold of a use of force. This is a challenging area of the law that raises difficult questions. The very design of the Internet may lead to some encroachment on other sovereign jurisdictions. Precisely when a non-consensual cyber operation violates the sovereignty of another State is a question lawyers within the U.S. government continue to study carefully, and it is one that ultimately will be resolved through the practice and ''opinio juris'' of States.
 
In certain circumstances, one State’s non-consensual cyber operation in another State’s territory ''could'' violate international law, even if it falls below the threshold of a use of force. This is a challenging area of the law that raises difficult questions. The very design of the Internet may lead to some encroachment on other sovereign jurisdictions. Precisely when a non-consensual cyber operation violates the sovereignty of another State is a question lawyers within the U.S. government continue to study carefully, and it is one that ultimately will be resolved through the practice and ''opinio juris'' of States.
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Relatedly, consider the challenges we face in clarifying the international law prohibition on unlawful intervention. As articulated by the International Court of Justice (ICJ) in its judgment on the merits in the ''Nicaragua Case'', this rule of customary international law forbids States from engaging in coercive action that bears on a matter that each State is entitled, by the principle of State sovereignty, to decide freely, such as the choice of a political, economic, social, and cultural system. This is generally viewed as a relatively narrow rule of customary international law, but States’ cyber activities could run afoul of this prohibition. For example, a cyber operation by a State that interferes with another country’s ability to hold an election or that manipulates another country’s election results would be a clear violation of the rule of non-intervention. For increased transparency, States need to do more work to clarify how the international law on non-intervention applies to States’ activities in cyberspace."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 13-14.</ref><section end=US_2016 prohibition of intervention />
 
Relatedly, consider the challenges we face in clarifying the international law prohibition on unlawful intervention. As articulated by the International Court of Justice (ICJ) in its judgment on the merits in the ''Nicaragua Case'', this rule of customary international law forbids States from engaging in coercive action that bears on a matter that each State is entitled, by the principle of State sovereignty, to decide freely, such as the choice of a political, economic, social, and cultural system. This is generally viewed as a relatively narrow rule of customary international law, but States’ cyber activities could run afoul of this prohibition. For example, a cyber operation by a State that interferes with another country’s ability to hold an election or that manipulates another country’s election results would be a clear violation of the rule of non-intervention. For increased transparency, States need to do more work to clarify how the international law on non-intervention applies to States’ activities in cyberspace."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 13-14.</ref><section end=US_2016 prohibition of intervention />
   
==[[International human rights law]]==
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==Human rights law==
 
<section begin=US_2016 international human rights law />
 
<section begin=US_2016 international human rights law />
 
"The Internet must remain open to the free flow of information and ideas. Restricting the flow of ideas also inhibits spreading the values of understanding and mutual respect that offer one of the most powerful antidotes to the hateful and violent narratives propagated by terrorist groups.
 
"The Internet must remain open to the free flow of information and ideas. Restricting the flow of ideas also inhibits spreading the values of understanding and mutual respect that offer one of the most powerful antidotes to the hateful and violent narratives propagated by terrorist groups.
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That is why the United States holds the view that use of the Internet, including social media, in furtherance of terrorism and other criminal activity must be addressed through lawful means that respect each State’s international obligations and commitments regarding human rights, including the freedom of expression, and that serve the objectives of the free flow of information and a free and open Internet. To be sure, the incitement of imminent terrorist violence may be restricted. However, certain censorship and content control, including blocking websites simply because they contain content that criticizes a leader, a government policy, or an ideology, or because the content espouses particular religious beliefs, violates international human rights law and must not be engaged in by States." <ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 16-17.</ref><section end=US_2016 international human rights law />
 
That is why the United States holds the view that use of the Internet, including social media, in furtherance of terrorism and other criminal activity must be addressed through lawful means that respect each State’s international obligations and commitments regarding human rights, including the freedom of expression, and that serve the objectives of the free flow of information and a free and open Internet. To be sure, the incitement of imminent terrorist violence may be restricted. However, certain censorship and content control, including blocking websites simply because they contain content that criticizes a leader, a government policy, or an ideology, or because the content espouses particular religious beliefs, violates international human rights law and must not be engaged in by States." <ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 16-17.</ref><section end=US_2016 international human rights law />
   
==[[State responsibility]]==
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==State responsibility==
 
<section begin=US_2016 state responsibility /><section begin=US_2016 attribution />
 
<section begin=US_2016 state responsibility /><section begin=US_2016 attribution />
 
"From a legal perspective, the customary international law of state responsibility supplies the standards for attributing acts, including cyber acts, to States. For example, cyber operations conducted by organs of a State or by persons or entities empowered by domestic law to exercise governmental authority are attributable to that State, if such organs, persons, or entities are acting in that capacity.
 
"From a legal perspective, the customary international law of state responsibility supplies the standards for attributing acts, including cyber acts, to States. For example, cyber operations conducted by organs of a State or by persons or entities empowered by domestic law to exercise governmental authority are attributable to that State, if such organs, persons, or entities are acting in that capacity.
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I also want to note that, despite the suggestion by some States to the contrary, there is no international legal obligation to reveal evidence on which attribution is based prior to taking appropriate action. There may, of course, be political pressure to do so, and States may choose to reveal such evidence to convince other States to join them in condemnation, for example. But that is a policy choice—it is not compelled by international law."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 17-20.</ref><section end=US_2016 state responsibility /><section end=US_2016 attribution />
 
I also want to note that, despite the suggestion by some States to the contrary, there is no international legal obligation to reveal evidence on which attribution is based prior to taking appropriate action. There may, of course, be political pressure to do so, and States may choose to reveal such evidence to convince other States to join them in condemnation, for example. But that is a policy choice—it is not compelled by international law."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 17-20.</ref><section end=US_2016 state responsibility /><section end=US_2016 attribution />
   
==[[Retorsion]]==
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==Retorsion==
 
<section begin=US_2016 retorsion />
 
<section begin=US_2016 retorsion />
 
"[..]a State can always undertake unfriendly acts that are not inconsistent with any of its international obligations in order to influence the behavior of other States. Such acts—which are known as acts of retorsion—may include, for example, the imposition of sanctions or the declaration that a diplomat is ''persona non grata.''"<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 20.</ref><section end=US_2016 retorsion />
 
"[..]a State can always undertake unfriendly acts that are not inconsistent with any of its international obligations in order to influence the behavior of other States. Such acts—which are known as acts of retorsion—may include, for example, the imposition of sanctions or the declaration that a diplomat is ''persona non grata.''"<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 20.</ref><section end=US_2016 retorsion />
   
==[[Countermeasures]]==
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==Countermeasures==
 
<section begin=US_2016 countermeasures />
 
<section begin=US_2016 countermeasures />
 
"The customary international law doctrine of countermeasures permits a State that is the victim of an internationally wrongful act of another State to take otherwise unlawful measures against the responsible State in order to cause that State to comply with its international obligations, for example, the obligation to cease its internationally wrongful act. Therefore, as a threshold matter, the availability of countermeasures to address malicious cyber activity requires a prior internationally wrongful act that is attributable to another State. As with all countermeasures, this puts the responding State in the position of potentially being held responsible for violating international law if it turns out that there wasn’t actually an internationally wrongful act that triggered the right to take countermeasures, or if the responding State made an inaccurate attribution determination. That is one reason why countermeasures should not be engaged in lightly.
 
"The customary international law doctrine of countermeasures permits a State that is the victim of an internationally wrongful act of another State to take otherwise unlawful measures against the responsible State in order to cause that State to comply with its international obligations, for example, the obligation to cease its internationally wrongful act. Therefore, as a threshold matter, the availability of countermeasures to address malicious cyber activity requires a prior internationally wrongful act that is attributable to another State. As with all countermeasures, this puts the responding State in the position of potentially being held responsible for violating international law if it turns out that there wasn’t actually an internationally wrongful act that triggered the right to take countermeasures, or if the responding State made an inaccurate attribution determination. That is one reason why countermeasures should not be engaged in lightly.
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I also should note that countermeasures taken in response to internationally wrongful cyber activities attributable to a State generally may take the form of cyber-based countermeasures or non-cyber-based countermeasures. That is a decision typically within the discretion of the responding State and will depend on the circumstances."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 21-22.</ref><section end=US_2016 countermeasures />
 
I also should note that countermeasures taken in response to internationally wrongful cyber activities attributable to a State generally may take the form of cyber-based countermeasures or non-cyber-based countermeasures. That is a decision typically within the discretion of the responding State and will depend on the circumstances."<ref>[https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf, Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016] 21-22.</ref><section end=US_2016 countermeasures />
   
== [[International humanitarian law (jus in bello)|International humanitarian law (''jus in bello'')]]==
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==International humanitarian law (''jus in bello'')==
 
<section begin=US_2016 IHL />
 
<section begin=US_2016 IHL />
 
"Turning to cyber operations in armed conflict, I would like to start with the U.S. military’s cyber operations in the context of the ongoing armed conflict with the Islamic State of Iraq and the Levant (ISIL). As U.S. Defense Secretary Ashton Carter informed Congress in April 2016, U.S. Cyber Command has been asked “to take on the war against ISIL as essentially [its] first major combat operation […] The objectives there are to interrupt ISIL command-and-control, interrupt its ability to move money around, interrupt its ability to tyrannize and control population[s], [and] interrupt its ability to recruit externally.
 
"Turning to cyber operations in armed conflict, I would like to start with the U.S. military’s cyber operations in the context of the ongoing armed conflict with the Islamic State of Iraq and the Levant (ISIL). As U.S. Defense Secretary Ashton Carter informed Congress in April 2016, U.S. Cyber Command has been asked “to take on the war against ISIL as essentially [its] first major combat operation […] The objectives there are to interrupt ISIL command-and-control, interrupt its ability to move money around, interrupt its ability to tyrannize and control population[s], [and] interrupt its ability to recruit externally.
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=== See also ===
 
=== See also ===
*[[National position of the United States of America (2012)]]
 
*[[National position of the United States of America (2020)]]
 
   
 
=== Notes and references ===
 
=== Notes and references ===
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