Abstract

The challenges of attributing malicious cyber activity—that is, identifying its authors and provenance with a sufficient degree of certainty—are well documented. This essay focuses on a phenomenon that I call “attribution by indictment.” Since 2014, the United States has issued more than a dozen indictments that implicate four foreign states in malicious cyber activity: China, Iran, Russia, and North Korea. Ten of these indictments were issued in 2018, suggesting that this practice is likely to continue and even intensify in the near term. Attribution by indictment uses domestic criminal law, enforced transnationally, to define and enforce certain norms of state behavior in cyberspace. This essay analyzes the U.S. practice of attribution by indictment as a response to malicious cyber activity.

Highlights

  • Since 2014, the United States has issued more than a dozen indictments that implicate four foreign states in malicious cyber activity: China, Iran, Russia, and North Korea

  • As Nina Kollars and Jacquelyn Schneider note, “‘defend forward’ suggests a preemptive instead of a reactive response to cyber attacks.”[39] depending on what “defending forward” means in practice, it could run a heightened risk of escalation.[40]

  • The White House’s September 2018 National Cyber Strategy indicates a commitment to “deter[ring] malicious cyber actors by imposing costs on them and their sponsors by leveraging a range of tools, including but not limited to prosecutions and economic sanctions, as part of a broader deterrence strategy.”[41]. The effectiveness of deterrence in criminal law relies on aversion to the possibility of detection and punishment

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Summary

ATTRIBUTION BY INDICTMENT

The challenges of attributing malicious cyber activity—that is, identifying its authors and provenance with a sufficient degree of certainty—are well documented. Since 2014, the United States has issued more than a dozen indictments that implicate four foreign states in malicious cyber activity: China, Iran, Russia, and North Korea. Ten of these indictments were issued in 2018, suggesting that this practice is likely to continue and even intensify in the near term.

AJIL UNBOUND
Functions of Attribution
The Coercive Function
The Deterrent Function
The Expressive Function
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