The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, September 26, 2015, 9:41 AM

With Chinese President Xi Jinping in town, it’s been a big week for all things cyber and U.S.-China relations.

To start things off, Jack reflected on Xi’s remark that “hacking against government networks” is a crime “that must be punished in accordance with law and relevant international treaties” and surmised that “there is no reason to think China will unilaterally back down in its cyber-operations against the United States.” He suggested that U.S. adversaries will not cease cyberactivities that the United States considers offensive without a similar reduction in U.S. cyberactivities that they consider detrimental.

Jack also discussed the potential first U.S. China cyber arms agreement that would aim to “prohibit first-use strikes on critical infrastructure.” Cautioning us against being excited, he pointed out that any such agreement would not alter the status quo of China’s “widespread espionage and theft,” largely considered the most troubling aspect to the United States. Raising the questions of what exactly would qualify as “critical infrastructure” and how exactly any such agreement would be verified, Jack likened the potential deal to a more technically challenging and less verifiable version of the Iran Deal--which for its part faced its own difficulty in Congress.

Unlike Jack, Herb Lin found more to be excited about in a potential cyber arms deal. He suggested that by embracing the June 2015 recommendations made by the Group of Governmental Experts (GGE) on Developments in the Field of Information and Telecommunications in the Context of International Security, the two nations could improve cyber relations.

Elaine Korzak shed light on the GGE report and its implications on the future of stability and conflict prevention in cyberspace. While the GGE establishes important cyber norms, Elaine suggests that the report indicates that any norm-setting power attributed to the report remains unclear and that “any remaining room for consensus, particularly with regard to the application of international law, has been exhausted.”

Paul Rosenzweig expressed intense relief after the White House declared that the United States and China agreed not to “conduct or knowingly support cyber-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sectors.” He wondered “why we didn't do that before.” Herb also reacted to the White House’s announcements but, once again, took a slightly more optimistic view. With an acknowledgement from China that intellectual property theft for commercial purposes is bad, Herb suggested that the endorsement for the aforementioned GGE forum for cybersecurity marked a step in the right direction.

Jack also analyzed the White House release and asks what gives. He asked what might underlie China's acceptance of the U.S. position that cybertheft of intellectual property is wrong and suggested three possible answers.

Stewart Baker did a deep dive into President Xi Jinping’s visit to Washington and interviewed Margie Gilbert on this week’s Steptoe Cyberlaw Podcast. In what he terms the “he said, Xi said” issue, Stewart discussed whether the United States should settle on the aforementioned minimal potential cyber agreement against. Margie Gilbert talked about the difficulty the United States faces in fending off network intrusions.

Zack Bluestone introduced “Water Wars,” a weekly roundup of the latest news, analysis, and opinions related to ongoing tensions in the South and East China Seas. He featured Xi’s visit to America in this first issue. He followed up the initial post by highlighting two key passages from Presidents Obama's and Xi's joint press conference with Obama elaborating upon the American understanding of bilateral relations in the Asian Pacific and Xi discussing common maritime interests in the South China Sea.

Paul also shared updates in the world of cyber warfare; he discusses the potential first cyber arms control deal between the U.S. and China, waning levels of Chinese cyber attacks on eve of Xi’s visit, Russian government-backed groups hacking NATO, and Obama’s classification of cyber as a core national security threat.

Ben posted the “Je Suis Francis” edition in the latest Rational Security podcast. The podcast discusses Russia’s intervention in Syria, the U.S.-China potential cyber arms treaty, the closure of Guantanamo Bay, and the critically essential, long-haired Edward Snowden.

Ben also responded to the New York Times editorial board’s somewhat oversimplified solution for closing Guantanamo and accused the Times of “assuming away all of the difficulties.”

Quinta reported on the release of Guantanamo’s infamous Shaker Aamer.

And in a shocking turn of events, the United States is apparently spying on Iran! Ben wrote about this revelatory “breaking news.”

Wells updated us on this week’s resumption of proceedings in the Al Hadi hearings. He also links to a statement made by the Chief Prosecutor concerning the hearing. Wells also linked to the United States’ en banc petition in United States v. Graham and the conditional cross petition filed last week by Aaron Graham’s attorneys.

Nick Weaver wrote on “weaponized wikileaks” and the strategy of “organizational doxing.” A powerful way to damage the credibility of an organization or the diplomatic capabilities of a country, "organizational doxing" entails stealing important secrets from the public and then making them public. Nick expresses concern that the Wikileaks releases detailing the NSA's spying on foreign governments "could be deliberately designed to damage US relationships" and that the poster is a saboteur rather than a whistleblower.

In questioning how Apple can both fight for encryption within the United States and agree to store data in Russia under the auspices of the Kremlin, Paul asked if Apple has “drunk the Putin Kool-aid.” Meanwhile, Susan Landau examined what appears to be support for encryption within the Obama administration and suggests that U.S. “national security interests argue for broader use of encryption throughout the infrastructure.” Paul linked to Admiral Mike Rogers’ testimony on cyber security at a Senate Select Committee on Intelligence hearing.

Chantal Berman took a look back at the Iraqi refugee crisis and applied lessons learned to the current Syrian refugee crisis. She suggests that public opinion plays a role in U.S. acceptance of refugees, that refugees acceptance does not lead to violence or terrorism, and that refugees need social support on top of physical resettlement. Also in the Middle East, Bruce Riedel considered the implications of and reactions to the recent accidents in Saudi Arabia, including the stampede in that killed over 700 people and the crane collapse that killed over 100.

Jeffrey Kahn posted the latest in Lawfare, InterCross, and EJIL:Talk!’s joint series, covering the application of IHL by national courts.

Cody linked to the annual report released by the United Kingdom's Independent Reviewer of Terrorism Legislation on the operation of the U.K.'s 2000 and 2006 Terrorism Acts. The report addresses current terror threats and countering extremism among other subjects.

Cody also shared the announcement of the Third Annual COCOM-Interagency Cyber Law Conference, which will be held from October 20-22, 2015.

And that was the week that was.