203
Cyber Law and
Espionage Law as
Communicating
Vessels
Abstract: Existing legal literature would have us assume that espionage operations
and “below-the-threshold” cyber operations are doctrinally distinct. Whereas one is
subject to the scant, amorphous, and under-developed legal framework of espionage
law, the other is subject to an emerging, ever-evolving body of legal rules, known
cumulatively as cyber law. This dichotomy, however, is erroneous and misleading.
In practice, espionage and cyber law function as communicating vessels, and so are
better conceived as two elements of a complex system, Information Warfare (IW).
This paper therefore rst draws attention to the similarities between the practices – the
fact that the actors, technologies, and targets are interchangeable, as are the knee-jerk
legal reactions of the international community. In light of the convergence between
peacetime Low-Intensity Cyber Operations (LICOs) and peacetime Espionage
Operations (EOs) the two should be subjected to a single regulatory framework, one
which recognizes the role intelligence plays in our public world order and which
adopts a contextual and consequential method of inquiry. The paper proceeds in
the following order: Part 2 provides a descriptive account of the unique symbiotic
relationship between espionage and cyber law, and further explains the reasons for this
dynamic. Part 3 places the discussion surrounding this relationship within the broader
discourse on IW, making the claim that the convergence between EOs and LICOs, as
described in Part 2, could further be explained by an even larger convergence across
all the various elements of the informational environment. Parts 2 and 3 then serve
as the backdrop for Part 4, which details the attempt of the drafters of the Tallinn
Dr. Asaf Lubin
Post-Doctoral Cyber Research Fellow
Fletcher School of Law and Diplomacy
Tufts University
Medford, MA, United States
2018 10th International Conference on Cyber Conict
CyCon X: Maximising Eects
T. Minárik, R. Jakschis, L. Lindström (Eds.)
2018 © NATO CCD COE Publications, Tallinn
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