United States: Cybersecurity 2018 – The Year In Preview: International Law And Cyber Warfare

Last Updated: December 21 2017
Article by Aaron Lang

Editors' Note: This is the seventh in a multi-part end-of-year series examining important trends in data privacy and cybersecurity during the coming year. Previous installments include analyses of HIPAA compliance, emerging security threats, federal enforcement trends, state enforcement trends, biometrics, and education. Up next: a deep dive into the SEC's enforcement actions.

In this series, we've written about emerging threats and the industries they target. This post addresses one thread that ties them all together—cyber warfare.

Cyber warfare refers generally to the malicious use of information and communication technologies (ICTs) by state actors. This is particularly problematic, as state actors have more resources and are more sophisticated than run-of-the-mill cyber criminals. State actors are believed to be behind some of the most notable cyber attacks of this past year, such as the WannaCry ransomware attack, which some have attributed to North Korea.

Experts recognize the need for an international approach to rein in this behavior. However, given the events of this year, international consensus on such an approach appears unlikely. What follows are some significant developments from 2017, which shed light on what 2018 might have in store.

A Setback for International Rules on Cyber War

Back in November 2016, we wrote about the lack of any formal agreement among nations on how international law should apply to cyber warfare. Next year, we likely won't see much meaningful headway in this area. This is due in part to the collapse of the fifth "GGE"—that is, the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security.

The GGE was tasked with setting international norms for state behavior in cyber space. And for years, its member countries had been making slow but steady progress. In 2013, they agreed in the first instance that international law—particularly, the U.N. Charter—applied. They also agreed that state sovereignty was to be a bedrock principle, and that states were responsible for the "internationally wrongful acts attributable to them" and could not use proxies to commit "internationally wrongful acts." These developments might seem minimal, but they were important stepping-stones to other pressing matters.

But this year, the GGE failed to agree on a draft for its fifth report. The sticking point appears to have been Article 51 of the UN Charter, dealing with the right to self-defense. That right is triggered by an "armed attack"—generally, a physical incursion into one state's territory by armed forces under another state's command. Certain GGE members worried about equating this concept with the "malicious use of ICTs."

GGE members might also have been concerned about implicit approval of "countermeasures." As experts Michael Schmitt and Liis Vihul explain, "[c]ountermeasures are actions or omissions that would be unlawful but for the fact that they respond to an internationally wrongful act of another State and are designed to cause the latter to comply with its legal obligations." They give as an example the "hack-back in response to another State's unlawful cyber operation."

Commentators have criticized the falling out as a "manufactured controversy." Indeed, the GGE had already agreed that the UN Charter applied, presumably in full. In any event, the GGE will not submit a fifth report, leaving an uncertain future for an international framework.

This does not mean that we are left without any guidance. In 2016, we wrote about the Talinn Manual—an ambitious attempt by a group of NATO-affiliated experts to distill from the laws of war several rules to govern cyber warfare. This year, the group released an update—the Talinn Manual 2.0. The new version takes the next step of setting out additional principles for how international law should apply to state cyber behavior in peacetime. But of course, the manual is mere guidance.

Experts appear to agree that some form of international order is preferable to the Wild West. As Arun M. Sukumar has noted, "[f]or those opposing the inclusion of specific legal principles, it should be clear that the tide is turning. Governments today increasingly desire rules that predict state behavior." So does the private sector.

More Transparency in the Processes for Disclosure of Zero-Day Vulnerabilities?

Without international consensus on a legal framework, individual nations will begin to lead by example. One way the United States has started to do this is by releasing details of its process for notifying developers about zero-day vulnerabilities.

The intelligence community has warned Congress that "more than 30 nations are adopting offensive cyber capabilities" and integrating them into "military operations and planning." These operations include the use of "zero-day" vulnerabilities—that is, vulnerabilities in equipment and software that are unknown to developers that, in some cases, bad actors can exploit and gain remote access to operating systems and web browsers. A recent study by RAND Corporation of 200 zero-day vulnerabilities found that they have an "average life expectancy—the time between initial private discovery and public disclosure—of 6.9 years." The study also found that it is highly unlikely that two separate actors will discover the same zero-day vulnerability.

Just last week, the United States released its Vulnerabilities Equities Policy and Process, a document describing how the government balances different factors in deciding when to notify vendors about zero-day vulnerabilities. The United States is the only country to have done this so far. The United Kingdom, Canada, and some European countries have either acknowledged having a process or that they are working on developing one. But we don't know much more than that.

Experts have criticized this lack of transparency, and are using the United States' disclosure to prompt a discussion on the further development of similar processes in other countries. They warn that "multiple countries around the world are likely discovering, retaining and exploiting zero-day vulnerabilities without a process to properly consider the trade-offs." Perhaps the United States' release of its process will spur other countries into action.

More Cyber Attacks Causing Physical Disruption: The Threat to Critical Infrastructure

Last year, we wrote about cyber threats to the energy industry. Those threats continue to intensify. Just last week, Reuters reported a "watershed" cyber-attack against an unspecified "critical infrastructure facility." That attack targeted a workstation running a safety shutdown system that is "widely used in the energy industry, including at nuclear facilities, and oil and gas plants." The malware apparently "sought to reprogram controllers used to identify safety issues." Cyber security professionals believe that the attackers were probing the safety system with the eventual goal of modifying it so that it would fail to detect a breach. FireEye, the cyber-security firm that discovered the malware—dubbed "TRITON"—reported with "moderate confidence" that the attacker was "sponsored by a nation state" actor.

FireEye did not disclose the location of the attacked facility or the nature of its operations. But some have theorized that the attack occurred in a facility in Saudi Arabia. These kinds of attacks have not yet occurred in the United States.

TRITON must be taken seriously. It is the third of a class of detected malware capable of physically disrupting a facility's operations. (The first was Stuxnet, which disrupted equipment in Iranian nuclear facilities.) Now more than ever, it is important for utility companies and other critical infrastructure entities to guard against potential attacks that pose physical threats to their operations.

We at the Security, Privacy and the Law will remain vigilant in the coming year. Be sure to check back with us for the latest developments on international law and cyber warfare.

To view Foley Hoag's Security, Privacy and The Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
11 Dec 2018, Webinar, Boston, United States

The False Claims Act continues to be one of the Department of Justice’s top enforcement priorities. Its reach affects companies of all types and sizes, including many in the life sciences industry.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions