Hanford, Elizabeth

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Loyola University Chicago, School of Law: LAW eCommons

Public Interest Law Reporter
Volume 20
Issue 1 Fall 2014 Article 5
2014
The Cold War of Cyber Espionage
Elizabeth Hanford
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Elizabeth Hanford, The Cold War of Cyber Espionage, 20 Pub. Interest L. Rptr. 22 (2014).
Available at: http://lawecommons.luc.edu/pilr/vol20/iss1/5
Loyola Public Interest Law Reporter
The Cold War of Cyber Espionage
Elizabeth Hanford
During the Cold War, governments raced against each other to create the
strongest and most effective nuclear weapons in the world.1 Today, govern-
ments race against each other to obtain sensitive information through cyber
espionage.2 However, in cyber espionage “there is no MAD in the Cold War
sense. . . You can’t be ‘assured’ of attribution.”3
Criminals are difficult to find in cyberspace, because “there is no
equivalent of a DNA sample or fingerprint to identify the perpetrator of a
specific cyber crime.”4 Perpetrators use proxy servers, virtual private networks,
or peer-to-peer software to hide their identities within the vast world of cyber-
space.5 Although attribution proves difficult, researchers can analyze data such
as the “time zone, location of the physical servers used in the attack, nation-
specific tools and techniques, and language indicators.”6
One example of this problem is Turla malware. The cyber espionage oper-
ation closely monitors diplomatic embassies in the former Eastern Bloc.7 Re-
searchers suggest state sponsorship, as there is “a steep cost to conduct such
surveillance, yet no apparent economic motive.”8 However, the exact source of
the operation remains unclear.9 Another example includes Dragonfly, a cyber
espionage operation capable of shutting down entire power grids in multiple
1 Robert Crowley and Geoffrey Parker, The Reader’s Companion to Military History, HIS-
TORY, 2009. Available at http://www.history.com/topics/cold-war/arms-race.
2 Rick Wilking, Expert: US in cyberwar arms race with China, Russia, NBC NEWS, Feb. 20,
2013. Available at http://investigations.nbcnews.com/_news/2013/02/20/17022378-expert-us-
in-cyberwar-arms-race-with-china-russia.
3 Id.
4 DJ Summers, Fighting in the cyber trenches, FORTUNE, Oct. 13, 2014. Available at http://
fortune.com/2014/10/13/cold-war-on-business-cyber-warfare/.
5 Proxy and VPN Detection, THREATMETRIX, http://www.threatmetrix.com/technology/
proxy-and-vpn-detection/; Anne I. Harrington, Cyber Operations in DOD Policy and Plans: Issues
for Congress, CONG. RESEARCH SERV. R43848, 7 (2015). Available at http://www.fas.org/sgp/
crs/natsec/R43848.pdf
6 Supra note 4.
7 Turla: Spying tool targets governments and diplomats, SYMANTEC, Aug. 7, 2014. Available at
http://www.symantec.com/connect/blogs/turla-spying-tool-targets-governments-and-diplomats.
8 Supra note 4.
9 Supra note 7.
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Hanford: The Cold War of Cyber Espionage
Published by LAW eCommons, 2014
No. 1 • Fall 2014
countries.10 The large scale of the operation and “high degree of technical
capability” suggests the operation is also state sponsored.11
Fortunately, Turla malware and Dragonfly abstain from harming civilians
or causing physical damage at this point in time. However, every security
breach is a serious threat that impairs national security and defense operations.
When states become victim to cyber espionage, scholars turn to existing laws
of armed conflict to determine permissible remedies.12
SELF DEFENSE
According to the laws of armed conflict, the victim state may resort to self-
defense in the wake of an armed attack.13 The principles of necessity and pro-
portionality govern whether an attack rises to the level of an armed attack.14 In
the context of cyber operations, scholars analyze a cyber attack in two steps.15
If the activity satisfies both steps, the activity is referred to as “cyber warfare.”16
First, the cyber activity must constitute a “cyber attack.”17 One definition
of a cyber attack is an attack that can “disrupt, deny, degrade, or destroy infor-
mation resident in computers and computer networks, or the computer [net-
work] itself.”18 Other scholars define a cyber attack as “any action taken to
undermine the functions of a computer network for a political or national
security purpose.”19 In order to constitute a cyber attack, the cyber operation
must do more than steal information or “passively observe a computer
network.”20
10 Dragonfly: Western Energy Companies Under Sabotage Threat, SYMANTEC, June 30, 2014.
Available at http://www.symantec.com/connect/blogs/dragonfly-western-energy-companies-
under-sabotage-threat
11 Id.
12 Oona A. Hathaway and Rebecca Crootof, The Law of Cyber-Attack, 100 CLR 820-21
(2012).
13 U.N. Charter art. 51. Available at http://www.un.org/en/documents/charter/chapter7
.shtml.
14 Supra note 12 at 849.
15 Id. at 836-37.
16 Id. at 837.
17 Id. at 836.
18 James E. Cartwright, Memorandum for Chiefs of the Military Services, U.S. DEP’T OF DEF.
Available at http://www.nsci-va.org/CyberReferenceLib/2010-11-joint%20Terminology%20for
%20Cyberspace%20Operations.pdf.
19 Supra note 12 at 826.
20 Id. at 830.
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Loyola Public Interest Law Reporter
Second, the cyber attack’s “effects must be equivalent to an ‘armed attack,’
or [the] activity must occur in the context of armed conflict”.21 Professor John
C. Dehn explains, “the operation’s attacks must be directed toward a military
objective, which creates a direct military advantage.”22 In Nicaragua v. U.S.,
the International Court of Justice analyzed the United States’ operation’s “scale
and effects” in Nicaragua to determine whether the acts of an operation rose to
the level of an armed attack.23 The larger the “scale and effects” of the opera-
tion, the more likely a court will find the threshold has been met.24
Scholars argue that cyber espionage fails to constitute a cyber attack, be-
cause the operation fails to disrupt or destroy a computer network.25 Addition-
ally, states fail to claim that cyber espionage constitutes a prohibited use of
force.26 Therefore, states should not launch a military offensive attack to deter
or retaliate against cyber espionage. One way for states to deter cyber espionage
may be to prosecute offenders under domestic law.
DOMESTIC PROSECUTION
On May 19, 2014, the United States brought the first ever charges against
a state actor for cyber espionage.27 The indictment alleged five Officers of the
Chinese People’s Liberation Army gained access to six United States utility
companies and stole trade secrets from 2006-2014.28 According to U.S. offi-
cials, the purpose of the indictment is to expose China’s spying and reduce the
targeting of American companies.29
21 Id. at 833.
22 Interview with John C. Dehn, Assistant Professor, Loyola University Chicago School of
Law (Oct. 24, 2014).
23 Nicar. v. U.S., 1986 I.C.J. 14, 195 (June 27).
24 Id.
25 Supra note 12.
26 David P. Fidler, Economic Cyber Espionage and International Law: Controversies Involving
Government Acquisition of Trade Secrets Through Cyber Technologies, AM. SOC’Y OF INT’L L., Mar.
20, 2013. Available at http://www.asil.org/insights/volume/17/issue/10/economic-cyber-
espionage-and-international-law-controversies-involving#_edn10
27 U.S. Charges Five Chinese Military Hackers for Cyber Espionage Against U.S. Corporations
and a Labor Organization for Commercial Advantage, DEP’T OF DEF., May 19, 2014. Available at
http://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-
us-corporations-and-labor.
28 Id.
29 Shane Harris, Exclusive: Inside the FBI’s Fight Against Chinese Cyber-Espionage, FOREIGN
POL’Y, May 27, 2014. Available at http://foreignpolicy.com/2014/05/27/exclusive-inside-the-
fbis-fight-against-chinese-cyber-espionage/.
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Hanford: The Cold War of Cyber Espionage
Published by LAW eCommons, 2014
No. 1 • Fall 2014
China points to Edward Snowden’s WikiLeaks, which revealed United
States involvement in the hacking of Chinese companies, and accuses the
United States of hypocrisy.30 In response, the head of the United States’ Justice
Department’s National Security Division John Carlin argues, “[United States]
spying on foreign companies is qualitatively different than what the Chinese
are doing, because the United States doesn’t share the fruits of its espionage
directly with companies, the way China does.”31
Even with the indictment of the Chinese Officers, it is unlikely govern-
ments will stop stealing sensitive information. Government espionage is al-
ready exposed. This exposure fails to reduce the amount of espionage.32
Additionally, the United States admits incarceration of the Chinese Officers is
unlikely.33 The offenders’ diplomatic status raises the protection of diplomatic
immunity.34 Furthermore, attribution is difficult to obtain in the cyber
world.35 Cyberspace creates a criminal playground where the risks are low and
the gains are high.36 To win the cold war of cyber espionage, states should
“protect data at its core” and focus on creating the most effective cyber defense
arsenals in the world.37
30 Jonathan Kaiman, China reacts furiously to US cyber-espionage charges, THE GUARDIAN,
May 20, 2014. Available at http://www.theguardian.com/world/2014/may/20/china-reacts-
furiously-us-cyber-espionage-charges.
31 Supra note 29.
32 CSIS AND MCAFEE, NET LOSSES: ESTIMATING THE GLOBAL COST OF CYBERCRIME 2
(2014).
33 Supra note 29.
34 Supra note 26.
35 Supra note 4.
36 Supra note 32.
37 Did Obama’s Cybersecurity Proposals Go Far Enough?, WALL ST. J., (Jan. 21, 2015). Availa-
ble at http://www.wsj.com/video/did-obama-cybersecurity-proposals-go-far-enough/7B14948F-
6713-4159-BBA5-4CA41067B66E.html.
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The Cold War of Cyber Espionage

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