Scenario 02: Cyber espionage against government departments

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Enigma, 1923. Photo by Peter Mitterhofer, (CC-BY-SA 4.0).

A military unit of State B conducts a cyber espionage operation against State A’s Ministry of Foreign Affairs and its subordinate organizations. The data obtained in this operation is later published on the internet by State B.

The analysis considers whether State B’s operation violated sovereignty, the prohibition of intervention, and diplomatic and consular law. What measures, if any, can the victim State lawfully take in response?

1 Scenario[edit | edit source]

1.1 Keywords[edit | edit source]

Attribution, peacetime cyber espionage, diplomatic and consular law, prohibition of intervention, sovereignty, privacy

1.2 Facts[edit | edit source]

[F1] State A discovers that an email server and several other servers belonging to its Ministry of Foreign Affairs (MFA) have been infiltrated. (The MFA system is a closed system located in the territory of State A, with missions staff using VPN connection to access it.) Initially, the attackers are not identified. Investigation shows that the attackers gained access to the email server by obtaining passwords of several consular officers at State A’s missions abroad through spear phishing and fake log-on websites (incident 1).

[F2] After gaining access, the intruders escalated account privileges and moved laterally through the network, which includes servers located both within State A's territory and on diplomatic and consular premises abroad. Within a few days, they gained access to additional MFA network servers and services provided in various countries abroad. They had access to data of various MFA personnel including senior officials for several months (incident 2).

[F3] A large amount (over 10 GB) of unclassified data on MFA servers was exfiltrated, even though it is not immediately clear what precise data was affected by the incident (incident 3). No data was destroyed or encrypted and no MFA services were affected during the attack.

[F4] Nobody claims responsibility for the attack immediately after the MFA's discovery of the incident and publication of the fact that it has occurred. However, a few days later, emails, procurement documents, and internal memos belonging to the MFA of State A are published on the internet (incident 4).

[F5] Multiple evidence points to State B:

  • Technical investigation revealed the malware used by attackers in this case. The same malicious code was employed in the past during multiple campaigns by an entity affiliated with a military unit of State B. One of those campaigns was targeted against State C’s MFA.
  • Earlier on, head of an allied intelligence service in State C had publicly accused State B of a cyber espionage campaign conducted by the state military unit against State C’s MFA.
  • The attackers used tactics, techniques and procedures (TTPs) very similar to those observed in other attacks publicly attributed to State B by multiple countries including State A allies. Mimicking TTPs is much more difficult than tampering with other technical elements.
  • Judging by the nature and content of the compromised data and by persons who were apparently of particular interest to the attackers, State A cybersecurity authority indicated State B as a logical and the most probable perpetrator of the attack against the MFA.
  • State A intelligence service sources confirmed that State B institutions possessed information that was based on State A MFA’s internal data that was not in the public domain.

[F6] Both State A and State B are parties to the Vienna Convention on Diplomatic Relations (VCDR)[1] and the Vienna Convention on Consular Relations (VCCR).[2]

1.3 Examples[edit | edit source]

2 Legal analysis[edit | edit source]

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

[L1] The legal analysis focuses on a number of relevant international legal rules, including the obligation to respect the sovereignty of other States, the prohibition of intervention, inviolability under diplomatic law and privacy rights.

2.1 Attribution[edit | edit source]

State organs and persons and entities in exercise of governmental authority
The following types of conduct of State organs and persons and entities in exercise of governmental authority are attributable to a State:
  1. The conduct of any of the organs of that State, "whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State";[3]
  2. The conduct of an organ of another State placed at the disposal of the State in question, if "the organ is acting in the exercise of elements of the governmental authority" of the latter State;[4]
  3. The conduct of "a person or entity which is not an organ of the State […] but which is empowered by the law of that State to exercise elements of the governmental authority, […] provided the person or entity is acting in that capacity in the particular instance."[5]

Such conduct is attributable to the State even if the organ, person or entity acting in that capacity "exceeds its authority or contravenes instructions" (acts ultra vires).[6]

[L2] The military unit of State B qualifies as an organ of that State.[7] As such, its relevant conduct is directly attributable to State B.[8] The following analysis proceeds on the assumption that all activities described in the scenario (incidents 1–4) were conducted by the said State B’s military unit and are therefore attributable to it.

2.2 Breach of an international obligation[edit | edit source]

2.2.1 Diplomatic and consular law[edit | edit source]

Inviolability of documents and archives of diplomatic missions and consular posts
Diplomatic and consular law protects the inviolability of documents and archives of diplomatic missions and consular posts.[9] This includes any official correspondence, whether in electronic or paper form.[10] The international legal obligation to respect inviolability is unaffected by the frequent practice of States to conduct cyber espionage operations that violate this duty. This is because any such practice is regularly condemned by the victim States, whereas the offending States refrain from putting forward any corresponding legal justification of such operations.[11]

[L3] In incident 1, by gaining access to the official email accounts of several consular officers of State A, State B ran afoul of the inviolability of official correspondence under diplomatic and consular law. The lateral movement (incident 2) and exfiltration of data (incident 3) are just further steps in the illegal activity of State B, at least to the extent that the hacked accounts and servers contained data pertaining to State A’s diplomatic missions and consular posts, irrespective of their location.[12] This is because international law grants the inviolability of any official correspondence related to the missions and its functions. [13]

[L4] Incident 4, wherein the data was published on the internet, raises the question whether the published materials are still protected by international law under diplomatic and consular law. This issue is unsettled in the present state of the law. One view, endorsed by a majority of the experts drafting the Tallinn Manual, is that inviolability no longer applies to data that has been made public, as it is “not confidential as a matter of fact”.[14] By contrast, others believe that the duty to respect the inviolability of the materials in question continues to apply in such cases.[15] The primary reason for this view is that the duty of inviolability covers the protected materials “wherever they may be”,[16] which therefore includes even the public domain.[17]

[L5] Nonetheless, there may be aspects of the right to privacy in the context of international human rights law which are violated by the publication of the consular officers' and other MFA personnel's personal details and additional information associated with their emails.[18]

2.2.2 Sovereignty[edit | edit source]

Sovereignty
Sovereignty is a core principle of international law. According to a widely accepted definition of the term in the 1928 Island of Palmas arbitral award,

[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.[19]

Multiple declarations by the UN,[20] NATO,[21] OSCE,[22] the European Union,[23] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty. However, there is some debate as to whether this principle operates as a standalone rule of international law, the breach of which gives rise to state responsibility.
  • For the proponents of this view, the prohibition on violating the sovereignty of other States is a substantive primary rule of international law, the breach of which is an internationally wrongful act. This view was unanimously accepted by the experts who prepared the Tallinn Manual 2.0[24] and it was reportedly not challenged by any of the over fifty States that participated in the process of consultations regarding the Manual prior to its publication in 2017.[25]
  • By contrast, the opposing view is that sovereignty is a principle of international law that may guide State interactions, but it does not amount to a standalone primary rule.[26] This view has now been adopted by one State, the United Kingdom.[27] By this approach, cyber operations never violate the sovereignty of a State, although they may constitute prohibited intervention, use of force or other internationally wrongful acts.

The remainder of this section proceeds on the basis of the former “sovereignty-as-rule” approach. Those espousing the latter “sovereignty-as-principle” approach should refer to other relevant sections of the legal analysis (such as that on the prohibition of intervention).

It is understood that sovereignty has both an internal and an external component.[28] In the cyber context, the “internal” facet of sovereignty entails that “[a] State enjoys sovereign authority with regard to the cyber infrastructure, persons, and cyber activities located within its territory, subject to its international legal obligations.”[29][30]

As a general rule, each State must respect the sovereignty of other States.[31] It is clear that a cyber operation with severe destructive effects, comparable to a "non-cyber" armed attack or a use of force against a State, constitutes a violation of its sovereignty; however, with more subtle cyber operations, the question is far from settled.[32]

The following modalities, highlighted in the Tallinn Manual 2.0, represent different ways of determining what a “sovereignty violation” might mean in the context of cyber operations:

  1. A State organ conducting cyber operations against a target State or entities or persons located there while physically present in the target State's territory violates the target State's sovereignty.[33] This was agreed by all Experts drafting the Manual; however, “a few” of the Experts thought that the extensive State practice carved out an exception for espionage operations.[34]
  2. Causation of physical damage or injury by remote means;[35] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[36]
  3. Causation of a loss of functionality of cyber infrastructure: although the Tallinn Manual 2.0 experts agreed that a loss of functionality constituted “damage” and thus a breach of sovereignty, no consensus could be achieved as on the precise threshold for a loss of functionality (the necessity of reinstallation of operating system or other software was proposed but not universally accepted);[37] Below this threshold, there was no agreement among the Experts whether operations that do not cause physical consequences or a loss of functionality qualify as a violation of sovereignty.[38]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[39] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[40]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[41]

Attributing the relevant cyber operation to a State different from the target State is a necessary prerequisite for qualifying the cyber operation as a violation of the target State's sovereignty.

Whether non-State actors can violate territorial sovereignty on their own is a matter of disagreement.[42]

[L6] Whether State A's sovereignty was violated in incidents 1–3 depends on whether the espionage operation was fully conducted from outside of State A’s territory, or whether a part of it was conducted by operators physically located in State A’s territory. In the latter case, the operation could be considered a violation of sovereignty, and hence State B’s breach of its corresponding international obligation (option 1 above).[43] As for a possible interference with data or services that are necessary for the exercise of "inherently governmental functions", the data was merely copied by the adversary, not destroyed or modified, and the services kept working during the espionage operation.

[L7] Taken separately, the publication of the acquired data (incident 4) would not violate the sovereignty of State A (however, if the publication was done in order to coerce State A, it might be a prohibited intervention - see below). Had the published information been classified in State A, then the publication is likely illegal according to State A’s domestic law; State A can also be party to international agreements which regulate the transfer of its classified information to third parties, which may create obligations for third States with regard to this information.[44]

2.2.3 Prohibition of intervention[edit | edit source]

Prohibition of intervention
The obligation of non-intervention, a norm of customary international law prohibits States from intervening coercively in the internal or external affairs of other States. Prohibited intervention was authoritatively defined by the International Court of Justice in the judgment on the merits in the 1986 case Nicaragua v United States:

A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.[45]

In order for an act, including a cyber operation, to qualify as a prohibited intervention, it must fulfil the following conditions:
  1. The act must bear on those matters in which States may decide freely. The spectrum of such issues is particularly broad and it includes both internal affairs (such as “choice of a political, economic, social, and cultural system”[46]), and external affairs (“formulation of foreign policy”[46])—the so-called domaine réservé of States.[47] The content of the domaine réservé is determined by the scope and nature of the state's international legal obligations.
  2. The act must be coercive in nature. There is no generally accepted definition of “coercion” in international law. However, in the cyber context, the Tallinn Manual 2.0 suggests that “the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State”.[48] On that basis, the “key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take)”.[49] This approach distinguishes coercing or compelling the target State from merely influencing it by persuasion or propaganda and from causing nuisance without any particular goal.[50] The element of coercion also entails the requirement of intent.[51]
  3. Finally, there has to be a causal nexus between the coercive act and the effect on the internal or external affairs of the target State.[52]

[L8] In the present scenario, prohibited intervention could also be a relevant qualification. The incidents encroach on State A’s external affairs which are the sole prerogative of State A. However, incidents 1–3 (infiltration into State A systems and exfiltration of data) do not contain the element of coercion, because they are conducted merely with the aim to gather information, which does not compel State A to adapt the conduct of its external affairs.[53]

[L9] As for incident 4 (publication of the data), if it can be attributed to State B, it is coercive in the sense that it has the potential to cause State A to adapt its external (and internal) affairs based on the published information and to contain the relevant political damage. It may be harder for State A to ascertain the intent of State B, which might have had no particular outcome in mind, apart from causing mischief. This might also pose an issue for establishing the causal nexus between State B’s activity and the resulting reaction by State A: the causality might not be deemed direct enough.

2.2.4 Espionage[edit | edit source]

Peacetime cyber espionage
Peacetime espionage has been traditionally considered as unregulated by international law. This is also reflected in the Tallinn Manual 2.0, which posits that ‘[a]lthough peacetime cyber espionage by States does not per se violate international law, the method by which it is carried out might do so.’[54]

However, the methods of peacetime cyber espionage are varied and the legal consensus is almost non-existent with regard to cyber operations below the threshold of use of force or armed attack.

It must be noted that although cyber espionage operations are generally not illegal from the perspective of international law, they are usually prohibited according to the domestic law of the target State. Moreover, the acting State’s authorities will also typically be subject to specific domestic law prescriptions pertaining to the conduct of foreign intelligence operations.

Conversely, the mere fact that an operation is a cyber espionage operation does not make it legal in international law, according to a majority of the experts drafting Tallinn Manual 2.0.[55] According to a minority of the experts, espionage creates an exception for certain otherwise illegal cyber operations.[56]

[L10] As this overview demonstrates, the mere characterization of a cyber operation as amounting to cyber espionage is not conclusive as to the question of its lawfulness under international law.[57] Reference must be had to specific rules of international law, which may be breached by the operation in question in its specific circumstances (see especially Sovereignty and Prohibited intervention above).

[L11] It may be noted that there is a view that acts of espionage represent a customary exception to the relevant prohibitions.[58] However, this interpretation would amount to the establishment of a novel circumstance precluding wrongfulness, for which there is no evidence in international law. Accordingly, the lawfulness of incidents 1–4 therefore must be assessed with reference to other applicable international legal rules.

3 Checklist[edit | edit source]

4 Appendices[edit | edit source]

4.1 See also[edit | edit source]

4.2 Notes and references[edit | edit source]

  1. Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964), 500 UNTS 95.
  2. Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967), 596 UNTS 261.
  3. ILC Articles on State Responsibility, Art 4(1).
  4. ILC Articles on State Responsibility, Art 6.
  5. ILC Articles on State Responsibility, Art 5.
  6. ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
  7. See, for example, ICRC Customary IHL Study, vol 1, 530–531 (“The armed forces are considered to be a State organ, like any other entity of the executive, legislative or judicial branch of government.”).
  8. ILC Articles on State Responsibility, Art. 4(1); Tallinn Manual 2.0, commentary to rule 15, para 1.
  9. Art 24 VCDR; Art 33 VCCR.
  10. Tallinn Manual 2.0, commentary to rule 41, para 3.
  11. Tallinn Manual 2.0, commentary to rule 41, para. 11. However, commentary to rule 41, para. 8, notices that the Experts were divided on whether the duty to respect the inviolability over archives or material at rest on private servers as opposed to transit lies upon all States and not only the receiving State.
  12. See Tallinn Manual 2.0, commentary to rule 41, para 6 (noting that archives and documents of a diplomatic mission or a consular post remain inviolable even if they are stored outside of the receiving State, including on a server belonging to the sending State’s ministry of foreign affairs).
  13. Art. 33 VCCR, Art. 61 VCCR and Art. 24 VCDR, Art. 27(2) VCDR and Art. 40(3) VCDR .
  14. Tallinn Manual 2.0, commentary to rule 41, para 14.
  15. Tallinn Manual 2.0, commentary to rule 41, para 15.
  16. Art. 24 VCDR and Art. 33 VCCR.
  17. Tallinn Manual 2.0, commentary to rule 41, para. 15.
  18. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Art. 17.
  19. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  20. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  21. North Atlantic Treaty Organization, 'Wales Summit Declaration' (issued by the Head of State and Government participating in the meeting of the North Atlantic Council in Wales (5 September 2015) para 72.
  22. Organization for Security and Cooperation in Europe, Decision No. 1202, OSCE Confidence-Building Measures to Reduce the Risks of Conflict Stemming from the Use of Information and Communication Technologies (Permanent Council, 10 March 2016) PC.DEC/1202.
  23. Council of the European Union,"Council Conclusions on the Joint Communication to the European Parliament and the Council: Resilience, Deterrence and Defence: Building strong cybersecurity for the EU" (Council conclusions, 20 November 2017),
  24. Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).
  25. See Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Tex L Rev. 1639, 1649 (noting that States ‘voiced no meaningful objection to Rule 4’ and that ‘it appeared to be received knowledge that a primary rule on territorial-sovereignty violations existed and applied to cyber operations.’).
  26. Gary P. Corn and Robert Taylor, ‘Sovereignty in the Age of Cyber’ (2017) 111 AJIL Unbound 207, 208 (arguing that sovereignty is ‘a principle of international law that guides state interactions’).
  27. Jeremy Wright, ‘Cyber and International Law in the 21st Century’ (23 May 2018) (stating that he was ‘not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law’); see also Memorandum from JM O’Connor, General Counsel of the Department of Defense, ‘International Law Framework for Employing Cyber Capabilities in Military Operations’ (19 January 2017) (considering that sovereignty is not ‘a binding legal norm, proscribing cyber actions by one State that result in effects occurring on the infrastructure located in another State, or that are manifest in another State’), as cited by Sean Watts & Theodore Richard, 'Baseline Territorial Sovereignty and Cyberspace' (2018) 22 Lewis & Clark L. Rev. 771, 829.
  28. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448
  29. Tallinn Manual 2.0, rule 2.
  30. Sovereignty over cyber infrastructure derives from the traditional concept of sovereignty, independent of the use of cyberspace. See Wolff Heintschel von Heinegg, 'Territorial Sovereignty and Neutrality in Cyberspace' (2013) 89 Int’l L. Stud. 123 (noting that '[t]erritorial sovereignty [..] implies that, subject to applicable customary or conventional rules of international law, the State alone is entitled to exercise jurisdiction, especially by subjecting objects and persons within its territory to domestic legislation and to enforce these rules.')
  31. UN GA Res 2625 (XXV) (24 October 1970) (Friendly Relations Declaration), preamble (emphasizing “that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations”); Tallinn Manual 2.0, rule 4.
  32. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  33. See, eg, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] ICJ Rep 665, 704–05, paras 97–99 (holding that the presence of Nicaragua’s military personnel in the territory under Costa Rica’s sovereignty amounted to a violation of Costa Rica’s territorial sovereignty); see also Tallinn Manual 2.0, commentary to rule 4, para 6.
  34. Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9.
  35. Tallinn Manual 2.0, commentary to rule 4, para 11.
  36. Tallinn Manual 2.0, commentary to rule 4, para 12.
  37. Tallinn Manual 2.0, commentary to rule 4, para 13.
  38. Tallinn Manual 2.0, commentary to rule 4, para 14.
  39. Tallinn Manual 2.0, commentary to rule 4, para 15.
  40. Tallinn Manual 2.0, commentary to rule 4, para 16.
  41. Tallinn Manual 2.0, commentary to rule 4, para 18.
  42. In favour: see, eg, Theodore Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 LJIL 73, 84; Marcelo Kohen, ‘The Court’s Contribution to Determining the Content of Fundamental Principles of International Law’ in Giorgio Gaja and Jenny Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Brill 2012) 145. Against: see, eg, Tallinn Manual 2.0, commentary to rule 4, para 3.
  43. Tallinn Manual 2.0, commentary to rule 4, paras 6-7; commentary to rule 32, para 9.
  44. See, for example, Agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the French Republic concerning the mutual protection of classified information (signed on 27 March 2008 in London, entered into force 1 December 2008, France No. 1 (2008), Cm. 7425.
  45. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para. 205.
  46. 46.0 46.1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 205.
  47. See, for example, Katja Ziegler, “Domaine Réservé”, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated April 2013) (defining the domaine réservé as those “areas where States are free from international obligations and regulation”).
  48. Tallinn Manual 2.0, commentary to rule 66, para 19.
  49. Tallinn Manual 2.0, commentary to rule 66, para 21.
  50. Tallinn Manual 2.0, commentary to rule 66, para 21.
  51. Tallinn Manual 2.0, commentary to rule 66, paras 19, 27.
  52. Tallinn Manual 2.0, commentary to rule 66, para 24 (The exact nature of the causal nexus was not agreed on).
  53. Tallinn Manual 2.0, commentary to rule 66, para 33.
  54. Tallinn Manual 2.0, rule 32.
  55. Tallinn Manual 2.0, rule 32 and commentary to rule 32, para 6.
  56. Id.; Ashley Deeks, 'An International Legal Framework for Surveillance' (2015) 55 VA.J.INT’LL. 291, 302-3.
  57. See also Tallinn Manual 2.0, commentary to rule 32, para 6 (“By styling a cyber operation as a ‘cyber espionage operation’, a State cannot ... claim that it is by definition lawful under international law; its lawfulness depends on whether the way in which the operation is carried out violates any international law obligations that bind the State.”).
  58. See, for example, Tallinn Manual 2.0, commentary to rule 32, para 9; Ashley Deeks, “An International Legal Framework for Surveillance” (2015) 55 Va J Int’l L 291, 302-3.

4.3 Bibliography and further reading[edit | edit source]

4.4 Contributions[edit | edit source]

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