(Guest Post by @marasawr)
Thinkst recently published a thought piece on the theme of ‘A Geneva Convention, for software.‘ Haroon correctly anticipated that I’d be a wee bit crunchy about this particular ‘X for Y’ anti-pattern, but probably did not anticipate a serialised account of diplomatic derpitude around information and communications technologies (ICT) in international law over the past twenty years. Apparently there is a need for this, however, because this anti-pattern is getting out of hand.
Microsoft President and Chief Legal Officer Brad Smith published early in 2017 on ‘The need for a digital Geneva Convention,’ and again in late October on ‘What the founding of the Red Cross can teach us about cyber warfare.‘ In both cases, equivalences are drawn between perturbations in the integrity or availability of digital services, and the circumstances which prompted ratification of the Fourth Geneva Convention, or the circumstances prompting the establishment of the ICRC. And this is ridiculous.
Nation-state hacking is not a mass casualty event
The Fourth Geneva Convention (GCIV) was drafted in response to the deadliest single conflict in human history. Casualty statistics for the Second World War are difficult, but regardless of where in the range of 60-80 million dead a given method of calculation falls, the fact remains that the vast majority of fatalities occurred among civilians and non-combatants. The Articles of GCIV, adopted in 1949, respond directly to these deaths as well as other atrocities and deprivations endured by persons then unprotected by international law. The founding of the ICRC was similarly prompted by mass casualties among wounded soldiers in European conflicts during the mid-nineteenth century. But WannaCry was not Solferino; Nyetya was not the Rape of Nanjing.
Microsoft’s position is, in effect, that nation-state hacking activities constitute an equivalent threat to civilian populations as the mass casualty events of actual armed conflict, and require commensurate regulation under international law. ‘Civilian’ is taken simply to mean ‘non-government.’ The point here is that governments doing government things cost private companies money; this is, according to Smith, unacceptable. Smith isn’t wrong that this nation-state stuff impacts private companies, but what he asks for is binding protection under international law against injuries to his bottom line. I find this type of magical thinking particularly irksome, because it is underpinned by the belief that a corporate entity can be apatride and sovereign all at once. Inconveniently for Microsoft, there is no consensus in the customary law of states on which to build the international legal regime of their dreams.
The Thinkst argument in favour of a Geneva Convention for software is somewhat less cynical. Without a common, binding standard of conduct, nation-states are theoretically free to coerce, abuse, or otherwise influence local software companies as and when they please. Without a common standard, the thinking goes, (civilian) software companies and their customers remain in a perpetual state of unevenly and inequitably distributed risk from nation-state interference. Without binding protections and a species of collective bargaining power for smaller economies, nation-states likewise remain unacceptably exposed.
From this starting point, a binding resolution of some description for software sounds more reasonable. However, there are two incorrect assumptions here. One is that nothing of the sort has been previously attempted. Two is that nation-states, particularly small ones, have a vested interest in neutrality as a guiding principle of digital governance. Looking back through the history of UN resolutions, reports, and Groups of Governmental Experts (GGEs) on — please bear with me — ‘Developments in the field of information and telecommunications in the context of international security,’ it is clear this is not the case. We as a global community actually have been down this road, and have been at it for almost twenty years.
International law, how does it work?
First, what are the Geneva Conventions, and what are they not? The Geneva Conventions are a collection of four treaties and three additional protocols which comprise the body of international humanitarian law governing the treatment of non-combatant (i.e. wounded, sick, or shipwrecked armed forces, prisoners of war, or civilian) persons in wartime. The Geneva Conventions are not applicable in peacetime, with signatory nations agreeing to abide by the Conventions only in times of war or armed conflict. Such conflicts can be international or non-international (these are treated differently), but the point to emphasise is that an armed conflict with the characteristics of war (i.e. one in which human beings seek to deprive one another of the right to life) is a precondition for the applicability of the Conventions.
UN Member States which have chosen to become signatory to any or all of the Conventions which comprise international humanitarian law (IHL) and the Law of Armed Conflict (LOAC) have, in effect, elected to relinquish a measure of sovereignty over their own conduct in wartime. The concept of Westphalian sovereignty is core to international law, and is the reason internal conflicts are not subject to all of the legal restrictions governing international conflicts. Just to make life more confusing, reasonable international law scholars disagree regarding which conventions and protocols are bucketed under IHL, which are LOAC, and which are both.
In any event, IHL and LOAC do not cease to apply in wartime because Internet or computers; asking for a separate Convention applicable to software presumes that the digital domain is currently beyond the scope of IHL and LOAC, which it is not. That said, Tallinn Manuals 1.0 and 2.0 do highlight some problem areas where characteristics of informatic space render transposition of legal principles presuming kinetic space somewhat comical. IHL and LOAC cannot accommodate all eventualities of military operations in the digital domain without severe distortion to their application in kinetic space, but that is a protocol-sized problem, not a convention-sized problem. It is also a very different problem from those articulated by Microsoft.
19 years of ICT and international security at the UN
What Thinkst and Microsoft both point to is a normative behavioural problem, and there is some fascinating (if tragic) history here. Early in 2017 Michele Markoff appeared for the US Department of State on a panel for the Carnegie Endowment for International Peace, and gave a wonderfully concise breakdown of this story down from its beginnings at the UN in 1998. I recommend watching the video, but summarise here as well.
In late September of 1998, the Permanent Representative to the UN for the Russian Federation, Sergei Lavrov, transmitted a letter from his Minister of Foreign Affairs to the Secretary-General. The letter serves as an explanatory memorandum for an attached draft resolution seeking to prohibit the development, production, or use by Member States of ‘particularly dangerous forms of information weapons.’ The Russian document voices many anxieties about global governance and security related to ICT which today issue from the US and the EU. Weird, right? At the time, Russian and US understandings of ‘information warfare’ were more-or-less harmonised; the term encompassed traditional electronic warfare (EW) measures and countermeasures, as well as information operations (i.e. propaganda). Whether or not the Russian ask in the autumn of 1998 was sincere is subject to debate, but it was unquestionably ambitious. UN A/C.1/53/3 remains one of my favourite artefacts of Russia’s wild ‘90s and really has to be read to be believed.
So what happened? The US did their level best to water down the Russian draft resolution. In the late 1990s the US enjoyed unassailable technological overmatch in the digital domain, and there was no reason to yield any measure of sovereignty over their activities in that space at the request of a junior partner (i.e. Russia). Or so the magical thinking went. The resolution ultimately adopted (unanimously, without a vote) by the UN General Assembly in December 1998 was virtually devoid of substance. And it is that document which has informed the character of UN activities in the area of ‘Developments in the field of information and telecommunications in the context of international security’ ever since. Ironically, the US and like-minded states have now spent about a decade trying to claw their way back to a set of principles not unlike those laid out in the original draft resolution transmitted by Lavrov. Sincere or not, the Russian overture of late 1998 was a bungled opportunity.
State sovereignty vs digital governance
This may seem illogical, but the fault line through the UN GGE on ICT security has never been large vs small states. Instead, it has been those states which privilege the preservation of national sovereignty and freedom from interference in internal affairs vs those states receptive to the idea that their domestic digital governance should reflect existing standards set out in international humanitarian and human rights law. And states have sometimes shifted camps over time. Remember that the Geneva Conventions apply in a more limited fashion to internal conflicts than they do to international conflicts? Whether a state is considering commitment to behave consistently with the spirit of international law in their internal affairs, or commitment to neutrality as a desirable guiding principle of digital governance, both raise the question of state sovereignty.
As it happens, those states which tend to aggressively defend the preservation of state sovereignty in matters of digital governance tend to be those which heavily censor or otherwise leverage their ICT infrastructure for the purposes of state security. In early 2015 Permanent Representatives to the UN from China, Kazakhstan, the Russian Federation, Tajikistan, and Uzbekistan sent a letter to the Secretary-General to the effect of ‘DON’T TREAD ON ME’ in response to proposed ’norms, rules, and principles for the responsible behaviour of States’ by the GGE for ICT security. Armenia, Belarus, Cuba, Ecuador, Turkey, and other have similarly voiced concern in recent years that proposed norms may violate their state sovereignty.
During the summer of 2017, the UN GGE for ICT security imploded. With China and the Russian Federation having effectively walked away 30 months earlier, and with decades of unresolved disagreement regarding the relationship between state sovereignty, information, and related technologies… colour me shocked.
Hard things are hard
So, how do we safeguard against interference with software companies by intelligence services or other government entities in the absence of a binding international standard? The short answer is : rule of law.
Thinkt’s assertion that ‘there is no technical control that’s different’ between the US and Russian hypotheticals is not accurate. Russian law and lawful interception standards impose technical requirements for access and assistance that do not exist in the United States. When we compare the two countries, we are not comparing like to like. Declining to comply with a federal law enforcement request in the US might get you a public showdown and fierce debate by constitutional law scholars, because that can happen under US law. It is nigh unthinkable that a Russian company could rebel in this manner without consequences for their operations, profitability, or, frankly, for their physical safety, because Russian law is equally clear on that point.
Software companies are not sovereign entities; they do not get to opt out of the legal regimes and geopolitical concerns of the countries in which they are domiciled. In Kaspersky’s case, thinking people around DC have never been hung up on the lack of technical controls ensuring good behaviour. What we have worried about for years is the fact that the legal regime Kaspersky is subject to as a Russian company comfortably accommodates compelled access and assistance without due process, or even a warrant. In the US case, the concern is that abuses by intelligence or law enforcement agencies may occur when legal authorisation is exceeded or misinterpreted. In states like Russia, those abuses and the technical means to execute them are legally sanctioned.
It is difficult enough to arrive at consensus in international law when there is such divergence in the law of individual states. But when it comes to military operations (as distinct from espionage or lawful interception) in the digital domain, we don’t even have divergence in the customary law of states as a starting point. Until states begin to acknowledge their activities and articulate their own legal reasoning, their own understandings of proportionate response, necessity, damage, denial, &c. for military electromagnetic and information operations, the odds of achieving binding international consensus in this area are nil. And there is not a lot compelling states to codify that reasoning at present. As an industry, information security tends to care about nation-state operations to the extent that such attribution can help pimp whatever product is linked below the analysis, and no further. With the odd exception, there is little that can be called rigorous, robust, or scientific about the way we do this. So long as that remains true – so long as information security persists in its methodological laziness on the excuse that perfect confidence is out of reach – I see no externalities which might hasten states active in this domain to admit as much, let alone volunteer a legal framework for their operations.
At present, we should be much more concerned with encouraging greater specificity and transparency in the legal logics of individual states than with international norms creation on a foundation of sand. The ‘X for Y’ anti-pattern deserves its eyerolls in the case of a Geneva Convention for software, but for different reasons than advocates of this approach generally appreciate.
 Thinkst Thoughts, ‘A Geneva Convention, for software,’ 26 October 2017, http://blog.thinkst.com/2017/10/a-geneva-convention-for-software.html.
 Brad Smith, Microsoft On the Issues : ‘The need for a digital Geneva Convention,’ 14 February 2017, https://blogs.microsoft.com/on-the-issues/2017/02/14/need-digital-geneva-convention/; Brad Smith and Carol Ann Browne, LinkedIn Pulse : ‘What the founding of the Red Cross can teach us about cyber warfare,’ 29 October 2017, https://www.linkedin.com/pulse/what-founding-red-cross-can-teach-us-cyber-warfare-brad-smith/.
 See Jean S Pichet, Commentary : the Geneva Conventions of 12 August 1949, (Geneva : International Committee of the Red Cross, 1958), https://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-IV.pdf.
 See Jean S Pichet, Commentary : the Geneva Conventions of 12 August 1949, (Geneva : International Committee of the Red Cross, 1952), https://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-I.pdf.
 Groups of Governmental Experts (GGEs) are convened by the UN Secretary-General to study and develop consensus around questions raised by resolutions adopted by the General Assembly. When there is need to Do Something, but nobody knows or can agree on what that Something is, a GGE is established. Usually after a number of other, more ad hoc experts’ meetings have failed to deliver consensus. For brevity we often refer to this GGE as ‘the GGE for ICT security’ or ‘the GGE for cybersecurity’. https://www.un.org/disarmament/topics/informationsecurity/
 Thinkst Thoughts, ‘A Geneva Convention, for software,’ 26 October 2017, http://blog.thinkst.com/2017/10/a-geneva-convention-for-software.html.
 They are long and complicated. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp
 Regulating internecine conflict is extra hard, and also not very popular. See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
 Col Gary D Brown has produced consistently excellent work on this subject. See, e.g., Gary D Brown, “The Cyber Longbow & Other Information Strategies: U.S. National Security and Cyberspace” (28 April 2017). 5 PENN. ST. J.L. & INT’L AFF. 1, 2017, https://ssrn.com/abstract=2971667; Gary D Brown “Spying and Fighting in Cyberspace: What is Which?” (1 April 2016). 8 J. NAT’L SECURITY L. & POL’Y, 2016, https://ssrn.com/abstract=2761460; Gary D Brown and Andrew O Metcalf, “Easier Said Than Done : Legal Review of Cyber Weapons” (12 February 2014). 7 J. NAT’L SECURITY L. & POL’Y, 2014, https://ssrn.com/abstract=2400530. See also, Gary D Brown, panel remarks, ’New challenges to the laws of war : a discussion with Ambassador Valentin Zellweger,’ (Washington, DC : CSIS), 30 October 2015, https://www.youtube.com/watch?v=jV-A21jQWnQ&feature=youtu.be&t=27m36s.
 Michele Markoff, panel remarks, ‘Cyber norms revisited : international cybersecurity and the way forward’ (Washington, DC : Carnegie Endowment for Int’l Peace) 6 February 2017, https://www.youtube.com/watch?v=nAuehrVCBBU&feature=youtu.be&t=4m10s.
 United Nations, General Assembly, Letter dated 23 September 1998 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General, UN GAOR 53rd Sess., Agenda Item 63, UN Doc. A/C.1/53/3 (30 September 1998), https://undocs.org/A/C.1/53/3.
 ibid., (3)(c).
 GA Res. 53/70, ‘Developments in telecommunications and information in the context of international security,’ UN GAOR 53rd Sess., Agenda Item 63, UN Doc. A/RES/53/70 (4 December 1998), https://undocs.org/a/res/53/70.
 See GA Res. 54/49 of 1 December 1999, 55/28 of 20 November 2000, 56/19 of 29 November 2001, 57/53 of 22 November 2002, 58/32 of 8 December 2003, 59/61 of 3 December 2004, 60/45 of 8 December 2005, 61/54 of 6 December 2006, 62/17 of 5 December 2007, 63/37 of 2 December 2008, 64/25 of 2 December 2009, 65/41 of 8 December 2010, 66/24 of 2 December 2011, 67/27 of 3 December 2012, 68/243 of 27 December 2013, 69/28 of 2 December 2014, 70/237 of 23 December 2015, and 71/28 of 5 December 2016.
 This assessment is somewhat complicated. Accepting any or all of the proposed definitions, codes of conduct, &c. proffered by the Russian Federation over the years may have precluded some actions allegedly taken by the United States, but unambiguously would have prohibited the massive-scale disinformation and influence operations that have become a hallmark of Russian power projection abroad. Similarly, Russian innovations in modular malware with the demonstrated purpose and capability to perturb, damage, or destroy physical critical infrastructure systems would have been contraindicated by their own language.
 See, e.g., the Russian reply to ‘Developments in telecommunications and information in the context of international security,’ Report of the Secretary-General, UN GAOR 54th Sess., Agenda Item 71, UN Doc. A/54/213 (9 June 1999), pp. 8-10, https://undocs.org/a/54/213; the Russian reply to ‘Developments in telecommunications and information in the context of international security,’ Report of the Secretary-General, UN GAOR 55th Sess., Agenda Item 68, UN Doc. A/55/140 (12 May 2000), pp. 3-7, https://undocs.org/a/55/140; the Swedish reply (on behalf of Member States of the European Union) to ‘Developments in telecommunications and information in the context of international security,’ Report of the Secretary-General, UN GAOR 56th Sess., Agenda Item 69, UN Doc. A/56/164 (26 June 2001), pp. 4-5, https://undocs.org/a/56/164; and the Russian reply to ibid., UN GAOR 56th Sess., Agenda Item 69, UN Doc. A/56/164/Add.1 (21 June 2001), pp. 2-6, https://undocs.org/a/56/164/add.1.
 United Nations, General Assembly, Letter dated 9 January 2015 from the Permanent Representatives of China, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General, UN GAOR 69th Sess., Agenda Item 91, UN Doc. A/69/723 (9 January 2015), https://undocs.org/a/69/723.
 States’ replies since the 65th Session (2010) indexed at https://www.un.org/disarmament/topics/informationsecurity/.
 See, e.g., Arun Mohan Sukumar, ‘The UN GGE failed. Is international law in cyberspace doomed as well?,’ Lawfare, 4 July 2017, https://lawfareblog.com/un-gge-failed-international-law-cyberspace-doomed-well, and Elaine Korzak, The Debate : ‘UN GGE on cybersecurity : the end of an era?,’ The Diplomat, 31 July 2017, https://thediplomat.com/2017/07/un-gge-on-cybersecurity-have-china-and-russia-just-made-cyberspace-less-safe/.
 Prior to the 2014 Olympics in Sochi, US-CERT warned travellers that
Department of Homeland Security, US-CERT, Security Tip (ST14-01) ’Sochi 2014 Olympic Games’ (NCCIC Watch & Warning : 04 February 2014). https://www.us-cert.gov/ncas/tips/ST14-001 See, also, Andrei Soldatov and Irina Borogan, The Red Web : the struggle between Russia’s digital dictators and the new online revolutionaries, (New York : Public Affairs, 2017 ).
 In the United States, this has become a question of the extraterritorial application of the Stored Communications Act (18 USC § 2703) in the presence of a warrant, probable cause, &c. dressed up as a privacy debate. See Andrew Keane Woods, ‘A primer on Microsoft Ireland, the Supreme Court’s extraterritorial warrant case,’ Lawfare, 16 October 2017, https://lawfareblog.com/primer-microsoft-ireland-supreme-courts-extraterritorial-warrant-case.
 At the time of writing, eight Russian law enforcement and security agencies are granted direct access to SORM : the Ministry of Internal Affairs (MVD), Federal Security Service (FSB), Federal Protective Service (FSO), Foreign Intelligence Service (SVR), Federal Customs Service (FTS), Federal Drug Control Service (FSKN), Federal Penitentiary Service (FSIN), and the Main Intelligence Directorate of the General Staff (GRU). Federal Laws 374-FZ and 375-FZ of 6th July 2016 (‘On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation with regard to establishing additional measures to counter terrorism and ensure public security’), also known as the ‘Yarovaya laws,’ will enter into force on 1st July 2018; these laws substantially eliminate warrant requirements for communications and metadata requests to Russian telecommunications companies and ISPs, and additionally impose retention and decryption for all voice, text, video, and image communications. See, e.g., DR Analytica, report, ‘Yarovaya law : one year after,’ 24 April 2017, https://analytica.digital.report/en/2017/04/24/yarovaya-law-one-year-after/.