Talk:Scenario 01: Election interference

From International cyber law: interactive toolkit
Jump to navigation Jump to search

This is a sample comment. Kubomacak (talk) 14:02, 16 October 2018 (UTC)

Collection of comments to text edits[edit source]

In general, the scenario proposes a plausible and somewhat familiar set of facts that raise important legal issues in the context of cyberspace activity. It reads well and covers a nice array of issues.

There are, nonetheless, some inconsistencies in the presentation of the scenario that implicate the analysis. They're below in sequence(in addition to corrections made within the text itself):

(1) Two keywords added and will be worked into the analysis: cyber reconnaissance (as defined in the T2 glossary) and critical infrastructure (as defined in the T2 glossary and referred to in the OSCE, 2015 GGE and SCO, in the latter as "critical information infrastructure").

(2) cyber-enabled incidents or incidents in cyberspace

(3) Important to explain the distinction between fake news and real news for the purposes of the scenarios. Not a legal issue, but important for clarity. The one offered may not be perfect: although I'm not aware of any authoritative distinction (part of the problem!) we have to be careful.

(4) The changes to the line: "A large batch of private emails purportedly exchanged only among members of a candidate’s campaign team is leaked onto a well-known, publicly-accessible internet site" clarifies for readers what is later picked up on in the analysis, ie these are in-house, closed-circuit, private emails that have been outed. The word trove, I think, should be switched by batch.

(5) Is the intent candidate's or candidates'? The introduction uses the plural, have so corrected.

(6) "the accuracy and trustworthiness of results in the public opinion are thus placed in doubt." - Not clear if the intent is the election results as they are being published (on an ongoing basis?) by the commission, the final tallies, or only the non-binding opinion polls. Or all three. The task of the commission needs to be clarified, as it goes to the legal analysis: does the commission tally results, organize the election committees, make public announcements? Worth specifying for the analysis below. Also, is the next part of the scenario (the false election results) a result of infiltration of the same commission website or a different one?

(7) IN THE TRANSCLUDED TEXT ON SOVEREIGNTY (tried to edit - didn't succeed):

(a) Add reference to the 2015 SCO Code of Conduct at the word "sovereignty" in and "hence also the principle of sovereignty applies in cyberspace."

(b) The reference to sovereignty over cyber infrastructure and persons derives from the traditional concept of sovereignty, independent of the use of cyberspace. These are physical elements, well-accounted for already: important to mention them as non-cyber aspects of violation of sovereignty that may support the cyber-enabled violations. (c) The term espionage is introduced without any definition within the framework of the scenario - only in the transcluded text below, without any real explanation of what its elements are. This is problematic for the legal analysis below. T2 also defines the term "cyber reconnaissance", I believe also potentially applicable to this scenario: to my mind, it's a stretch to describe most of the hostile cyber activity described as "espionage", yet it's easily cyber reconnaissance. I'd distinguish on the basis of espionage having as a goal the transmission of information with intelligence / military / commercial value to an actor with a particular agenda or plan; cyber reconnaissance is more indicative of information gathering, which seems to be more appropriate to at least parts of this scenario. Others may disagree (or the terminology may simply be "hostile cyber activity"), but in any event it's important to define the alternatives (see T2 def's).

(d) There is some reference in T2, the OSCE doc (no's 3 and 15), the 2015 GGE, and the SCO Code of Conduct to critical infrastructure of states that encompasses critical databases. The inclusion of this issue in the scenario is important to a full understanding of Options 3, 4 and 5, as states have begun to broaden their definitions of CI to include databases that are especially vulnerable to hostile cyber activity.

(e) The last sentence on NSA's: add ", attribution to a State is necessary." Otherwise the reader's left hanging.


(8) After "nor does it run afoul of the other options." it's important to note also that freedom of information / expression is an international human right that needs to be taken into account. See the suggestion there.