Discussion: Cyber Espionage

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A good deal of cyber law scholars’ studies have been focused on the obligations of nation states in relation to one another regarding “use of force” in cyber space. In reality, most cyber attacks today involve a lower level of cyber operation – a sub-war level of conflict. This level of attack would include such actions as degradation or theft of information, disruption of communications, or possibly even the destruction of certain capabilities. When the U.S. suffers such an attack, a response may be in order. The type of response permitted is based on many factors, including, but not limited to, such things as existing agreements and treaties, the scope of the cyber attack, and the magnitude of its effect.

Decisions regarding the application of law to cyber operations and what an appropriate response would look like affects national security in that both decisions can have a large role in shaping the economic world. Developing law to govern economic competition in the cyber world is central to maintaining order and providing stability. The law which applies in the physical world does not always easily or effectively translate to the cyber realm. So what is and should be allowed in terms of a state response to one of the most common forms of cyber attack – economic espionage?

Discuss

  • Think about Catherine Lotrainte’s suggested method for enforcing the rights of victim states against economic espionage.
    • Is the author’s suggested method viable?
      • Why or why not?
  • Scrutinize her claim (in Part III) that “there is a legally binding norm of non-intervention that reaches the kind of non-forcible economic influence that economic espionage represents” which is poorly understood.
  • Given the nature of the cyber domain, does the norm of non-intervention apply?
  • What additional rules might be required to supplement existing norms?
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