This is part II of Ed Stacey’s interview with Dr Tim Stevens on offensive cyber in the 2020s for Strife’s Offensive Cyber Series. You can find Part I here.
ES: Thinking about the relationship between offensive cyber and international law and ethics, how far have debates gone around when and how it is right to use these capabilities and how confident are we in their conclusions?
TS: Depending on who you ask, this issue is either settled or it is not. Now the point about the discussion around these capabilities is that, actually, when we think about international law and ethics, whether from a liberal democratic standpoint or otherwise, the conversation is not about the capabilities themselves, generally speaking – it is not about cyber weapons as such – but tends to be more about the targets of those capabilities and the effects.
In 2015, the United Nations (UN) Group of Governmental Experts (GGE) on information security, which is led by the permanent five – the UK, Russia, France, China and the US – but also involved twenty or so other countries, agreed that international law applies to this domain in its entirety. That includes the UN Charter, they found a couple of years later. There is also a big NATO process which says that international humanitarian law (IHL), which governs the use of force in war, also applies to this environment. And what comes out of that is an understanding of several things.
Firstly, that the use of any capabilities that you might describe as offensive – or indeed defensive, hypothetically – has to abide by the laws of war. So they have to be necessary, proportionate and they have to have distinction, in the sense that they cannot target civilians under normal circumstances. The 2015 GGE said that you could not target civilian infrastructure through cyber means and so on.
But the problem is that, as we look at the world around us, for all of those international legal constraints and associated ethical arguments about not targeting civilians, for example, what we see is the significant use by states and other actors of exactly these types of capabilities, targeting exactly these types of targets. We have seen civilian infrastructure being targeted by the Russians, for example in Kiev on a couple of occasions in winter, where they have essentially turned the electricity off. That is exactly the opposite of what they signed up to: they signed up to say that that was not legal under international law, yet they do it anyway.
So the question really is not whether international law applies. It is slightly an issue about the details of how it applies and then if someone is in breach of that, what do you then do, which throws you back into diplomacy and geopolitics. So already you have gone beyond the conversation about small bits of malicious software that are being used as offensive cyber capabilities and elevating it to levels of global diplomacy and geopolitics. And essentially, there is a split in the world between liberal democracies, who at least adhere for the most part to international law, and a small set of other countries who very clearly do not.
ES: Given that context, what are the prospects for regulating offensive cyber activity? Is there the potential for formal treaties and agreements or are we talking more about the gradual development of norms of responsible state behaviour?
TS: This is the live question. Although we have an emerging understanding of the potential tools with which we might regulate these capabilities – including IHL and norms of responsible state behaviour – we have not got to the point of saying, for example, that we are going to have a global treaty. But there are multi-stakeholder efforts to do something that look a little like global agreements on, for example, the use of capabilities for targeting civilian infrastructure. There is something called the Cybersecurity Tech Accord, another is the Paris Call for Trust and Security in Cyberspace and there are half a dozen others that even if not explicitly focussed on offensive cyber, it is part of a suite of behaviours that they wish to develop norms around and potentially even regulation.
But it is incredibly difficult. The capabilities themselves are made of code: they are 1s and 0s, they zip around global networks, they are very difficult to interdict, they multiply, they distribute and they can attack a thousand different systems at once if they are done in a very distributed fashion. How do you tell where they come from? They do not come with a return address as the cliché goes. How do you tell who is responsible? Because no-one is going to own up to them. How do you tell if they are being developed? Well you cannot because they are done in secret. You can have a military parade in the streets of Washington DC, Pyongyang or Moscow, but you cannot do the same with cyber capabilities.
So it is very difficult to monitor both their use and their retention and development. And if nobody does own up to them, which is commonly the case, how do you punish anyone for breaching emerging norms or established international law? It is incredibly difficult. So the prospect for formal regulation anytime soon is remote.
ES: So far we have talked about some quite complex issues. Given the risks involved in developing and deploying these types of capabilities, what do you think needs to happen to improve public understanding of offensive cyber to the point that we can have a proper discussion about those risks?
TS: Public understanding of offensive cyber is not good and that is not the fault of the public. There are great journalists out there who take care in communicating these issues, and then there are others who have just been put on a story by their sub-editor and expected to come up to speed in the next half hour to put some copy out. It is really difficult to generate nuanced public understanding of things when the media environment is what it is.
Now I am not blaming the media here; I am just saying that that is one of the factors that plays into it. Because we have a role as academics as well and, ultimately, a lot of this falls to governments to communicate, which has conventionally not been great. Partly this is because a lot of the use and development of these capabilities comes from behind the classification barriers of national security, defence and intelligence. We have heard bits about their use in the battlespace against Islamic State in Iraq and Syria that has leaked out in interviews with senior decision-makers in the US and the UK, but generally not a lot else.
What we tend to get is policy statements saying: we have a sovereign offensive cyber capability and we are going to use it at a time and place of our choosing against this set of adversaries, which are always hostile states, terrorist groups, serious organised criminals and so on. But it does not encourage much public debate if everything that comes out in policy then gets called a cyber war capability because actions to stop child sexual exploitation by serious organised crime groups are not a war-like activity – they fall in a different space and yet they are covered by this cyber war moniker.
Now there is an emerging debate around offensive cyber. Germany has had a conversation about it, constitutionally quite constrained when it comes to offensive capabilities. There is a discussion in the Netherlands, also in the US about their new cyber posture – which is much more forward leaning than previous ones – and we are beginning to have a conversation in the UK as well. But a lot of that has fallen to academics to do and, I guess, I am part of that group who are looking at this issue and trying to generate more of a pubic conversation.
But it is difficult and the response you will sometimes get from government is: we do not need to have a conversation because we have already declared that everything we do is in accordance with our obligations under international law – we will do this against a set of adversaries that are clearly causing the nation harm and so on. That is fine. We are not doubting that that is their statement; we would just like to know a little bit more about the circumstances in which you would use these capabilities.
What, for example, is the new National Cyber Force going to do? How is it going to be structured? What are the lines of responsibility? Because one of the weird things about joint military-intelligence offensive cyber operations is that, in a country like the UK, you have the defence secretary signing off on one side and the foreign secretary signing off on the other because you are involving both the military and GCHQ, which have different lines of authority. So where does responsibility lie? Accountability? What happens if something goes wrong? What is your exact interpretation of international law? To be fair to the UK, they have set that interpretation out very clearly.
But there is more than just an academic interest here. If this is the future of conflict in some fashion and it has societal effects, then we need to have a conversation about whether these are the capabilities that we want to possess and deploy. Not least if the possession and deployment of those capabilities generates norms of state behaviour that include the use of cyber conflict. Is that something that we want to do in societies of the 21st century that are hugely dependent upon computer networks and deeply interconnected with other countries?
Those are the types of questions that we need to raise and we also need to raise the quality of public understanding. That is partly the job of academia and partly the job of media, but certainly the job of government.
The next interview in Strife’s Offensive Cyber Series is with Dr Daniel Moore on cyber operations. It will be released in two parts on Thursday 10th and Friday 11th June 2021.