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FEATURE

IN CYBERWAR,THERE ARE NO

RULESWhy the world desperately needs

digital Geneva Conventions.

BY TARAH WHEELERILLUSTRATIONS BY KYLE HILTON FOR FOREIGN POLICY

SEPTEMBER 12, 2018, 8:00 AM

In 1984, a science fiction movie starring an up-and-coming Austrian-American actor took the box office by storm. A

cybernetic organism is sent back in time to seek out and kill the

mother of a great war hero to prevent his subsequent birth. The

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cyborg scans a phone book page and begins methodically killing all

women named Sarah Connor in the Los Angeles area, starting at the

top of the list.

If The Terminator were set in today’s world, the movie would have

ended after four and a half minutes. The correct Sarah Connor

would have been identified with nothing but a last name and a zip

code—information leaked last year in the massive Equifax data

breach. The war against the machines would have been over before

it started, and no one would have ever noticed. The most frightening

thing about cyberwarfare is just how specifically targeted it can be:

An enemy can leap national boundaries to strike at a single person,

a class of people, or a geographic area.

Nor would a cyborg be necessary today. According to U.S. census

data, there are currently 87 people in the United States named Sarah

Connor. Many of them probably drive cellular-enabled cars that run

outdated firmware, use public unencrypted Wi-Fi, and visit doctors

who keep unsecured health care records about patient allergies and

current medications on computers running the infamously

outdated and vulnerable Windows XP operating system.

These days, warfare is

conducted on land, by sea, in

the air, across space, and now in

the fifth battleground:

cyberspace. Yet so far, the U.S.

government has fumbled on

cybersecurity, outsourcing

So far, the U.S. governmenthas fumbled oncybersecurity, outsourcingmuch of that area of conflictto the private sector inaccordance with the Trump

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much of that area of conflict to

the private sector in accordance

with the Trump

administration’s most recent

National Security Strategy—

leaving the country exposed to foreign attack.

Those third parties operate under exactly the same incentives as any

pharmaceutical company. If a company’s service is the treatment of

symptoms, preventive medicine is a threat to its business model.

Meanwhile, pundits, policymakers, and publishers take as gospel

what they’re told by so-called cybersecurity experts who have more

social media followers than relevant credentials in the field, which

is how hysterical “The Hackers Are Coming for Us” editorials find

their way into otherwise respectable publications.

Increased fear, uncertainty, and doubt surrounding cybersecurity

have led to a world where we cannot tell what has and hasn’t

happened. The nature of cyberwarfare is that it is asymmetric.

Single combatants can find and exploit small holes in the massive

defenses of countries and country-sized companies. It won’t be

cutting-edge cyberattacks that cause the much-feared cyber-Pearl

Harbor in the United States or elsewhere. Instead, it will likely be

mundane strikes against industrial control systems, transportation

networks, and health care providers—because their infrastructure is

out of date, poorly maintained, ill-understood, and often

unpatchable. Worse will be the invisible manipulation of public

opinion and election outcomes using digital tools such as targeted

advertising and deep fakes—recordings and videos that can

administration’s most recentNational Security Strategy—leaving the country exposedto foreign attack.

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realistically be made via artificial intelligence to sound like any

world leader.

The great challenge for military and cybersecurity professionals is

that incoming attacks are not predictable, and current strategies for

prevention tend to share the flawed assumption that the rules of

conventional war extend to cyberspace as well. Cyberwarfare does

have rules, but they’re not the ones we’re used to—and a sense of

fair play isn’t one of them. Moreover, these rules are not intuitive to

generals versed in fighting conventional wars.

That’s a problem because cyberwar won’t be waged with the

informed participation of much of the U.S. technology sector, as the

recent revolts at Google over AI contracts with the U.S. Defense

Department and at Microsoft over office software contracts with U.S.

Immigration and Customs Enforcement demonstrate. That leaves

only governments and properly incentivized multinational

corporations to set the rules. Neither has yet provided a workable

and operational definition of what constitutes a globally recognized

act of war—a vital first step in seeking to prevent such

transgressions.

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The closest that the U.S. military has come to such adefinition is to say that “acts of significant consequence” would be

examined on a case-by-case basis and could require congressional

evaluation. But given how quickly a cyberattack could disable

critical infrastructure, expecting Congress to react in time to answer

effectively is unrealistic.

In a world where partisan politics have been weaponized, a smart

misinformation campaign by a foreign state that targeted only one

political party might even be welcomed by other parties so long as

there was plausible deniability—and with cyberattacks, attribution

is rarely certain.

There is also a serious risk of collateral damage in cyberoperations.

Most militaries understand that they are responsible not only for

targeting strikes so that they hit valid targets but also for civilian

casualties caused by their actions. Though significant collateral

damage assessment occurs prior to the United States authorizing

cyberoperations, there is no international agreement requiring

other powers to take the same care.

A major cyberattack against the United States in 2014 was a clear

example of how civilians can bear the brunt of such operations.

Almost all cybersecurity experts and the FBI believe that the Sony

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Pictures hack that year originated in North Korea. A hostile country

hit a U.S. civilian target with the intention of destabilizing a major

corporation, and it succeeded. Sony’s estimated cleanup costs were

more than $100 million. The conventional warfare equivalent might

look like the physical destruction of a Texas oil field or an

Appalachian coal mine. If such a valuable civilian resource had been

intentionally destroyed by a foreign adversary, it would be

considered an act of war.

In the near future, attacks like the Sony hack will not be exceptional.

There are countless vulnerabilities that could result in mass

casualties, and there are no agreed norms or rules to define or

punish such crimes. Consider the following examples.

Once a week, a European aircraft manufacturer cleans all plane

cockpits of Android malware. Pilots can pass malware to the plane

from their smartphones when they plug them in, which the plane

(while theoretically unaffected by phone-only malware) then passes

it on to the next pilot with a smartphone. Planes are already covered

in viruses, both virtual and microbial. In such a vulnerable

environment, even an unsophisticated hack could wreak havoc. A

text message sent to the phone of every in-air pilot giving them a

national security warning or rerouting their planes could lead to

emergency landings and widespread confusion, with more

sophisticated attacks potentially leading to far more serious

consequences.

Aviation is not the only vulnerable sector. The U.S. health care

system is full of medical devices running ancient firmware or

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operating systems that simply cannot be patched or hardened

against commonly known network intrusions. Small hospitals often

cannot afford to replace their medical equipment on a regular

schedule, and device providers may deprioritize or block security

patches or upgrades in order to sell updated devices in the next

round of production.

That’s a problem in an era when many surgical procedures are

assisted by robots, which hospitals struggle to keep secure. The

medical device industry focuses more on performance and patient

health outcomes than on keeping a cyberadversary at bay. A

cyberattack on hospitals using robotic surgical devices could cause

them to malfunction while in use, resulting in fatal injuries. If a

country or terrorist group decided to take out a sitting U.S. senator

undergoing robotically assisted surgery and then covered its tracks,

the perpetrator’s identity would be hard to pinpoint, and there

would be no clear U.S. legal precedent for classifying the hacking of

hospital equipment as an assassination or an act of war. Nor do

there appear to be clear protocols for retaliation.

There are less direct potential vectors of attack, too. Recently, a cold

storage facility for embryos in Cleveland failed to notice that a

remotely accessible alarm on its holding tanks had been turned off,

leading to the loss of more than 4,000 frozen eggs and embryos.

Many operators of industrial control systems never bother to change

all their default passwords or security credentials, which can leave

them vulnerable to ransomware attacks, and even fewer health care

officials are likely to assume that someone might deliberately shut

off sensors that monitor the viability of future human life. It is

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difficult to determine whether the Cleveland eggs and embryos were

lost due to a simple maintenance failure or deliberate tampering—

but as techniques such as the freezing of eggs become more

common in wealthy nations, such a simple attack could wipe out

thousands of future citizens.

There is no functional difference between a foreignsoldier taking an ax to refrigerant tanks to destroy 4,000 eggs and

embryos and that same soldier using a keyboard to remotely shut

down the facility’s temperature maintenance protocols from 6,000

miles away. The two acts are equally heinous on a moral level. The

uncertainty in attribution and the lack of an easily identified villain

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may make the latter seem the province of science fiction. But it is

not.

Cyberattacks—some egregious, some mundane—are happening

now, quietly and unnoticed by the public. Much of the confusion

and fear over cybersecurity comes from the distorted publicity

surrounding a few outlying events. While cybersecurity experts

can’t have perfect certainty over attribution or even the existence of

some attacks, we can understand the larger security landscape, in

which cybersecurity is merely a banal and predictable component of

national infrastructure. The risk of cyberattacks is knowable,

probabilistically.

Technology and cyberspace are changing faster than countries can

legislate internally and negotiate externally. Part of the problem

with defining and evaluating acts of cyberwarfare against the United

States is that U.S. law is unclear and unsettled when it comes to

defining what constitutes an illegal cyberact as opposed to normal

computer activity by information security researchers.

The legal status of most information security research in the United

States therefore remains unclear, as it is governed by the poorly

drafted and arbitrarily enforced 1986 Computer Fraud and Abuse

Act (CFAA)—a piece of legislation that was roundly derided by tech

experts on its inception and has only grown more unpopular since.

The law creates unnecessary fear that simple and useful

information security research methods could be maliciously

prosecuted.

These methods include network scanning using tools such as Nmap

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(a computer network discovery and mapping tool) or Shodan (a

search engine for devices on the internet of things) to find

unsecured points of access to systems. Such scanning does not

constitute the exploitation of computer or network vulnerabilities; a

real-world equivalent would be walking down a street and noting

broken windows, open doors, and missing fence planks without

actually trespassing on someone else’s property. One of the fastest

fixes for the dismal state of federal cybersecurity expertise would be

to overturn the CFAA and reward cybersecurity researchers engaged

in preventive research instead of tying their hands with fears of

breaking the law. Yet at present the U.S. government ham-handedly

discourages many information security researchers from entering

what should be a noble service.

This dynamic has left the U.S. government with critical shortfalls in

top-level information security experts. The United States simply

lacks a viable legislative plan for hardening its infrastructure against

cyberattacks and developing much-needed cybertalent. Any strong

defense against cyberattacks should follow the same principles used

for basic U.S. infrastructure design: strategists plan, technicians

execute, and experts examine. For example, the interstate highway

system in the United States, authorized in 1956 to enable rapid

military transport of troops and supplies, also had much broader

civilian benefits.

Now, through neglect, roads in the United States are riddled with

potholes, widening cracks, and crumbling asphalt; thousands of

deaths on U.S. highways per year are related to poor road conditions.

Yet potholes are the most boring problem imaginable for a

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policymaker. By contrast, whenever a bridge collapses, it grabs

headlines—even though a comparatively small number of people

per year die from bridge catastrophes. Incident response is

appealing; it lets policymakers show their leadership chops in front

of cameras, smoke, and sirens. The drudgery of repairing underlying

problems and preventing the disasters in the first place takes a back

seat. This is dull but essential policy work, and the same goes for

technology infrastructure. If cyberwork isn’t boring, we’re doing it

wrong.

Cybersecurity should be akin to a routine vaccine, a line item in the

infrastructure budget like highway maintenance. Basic

cybersecurity measures—such as upgrades to encryption, testing

the capability of recovery in the event of data loss, and routine

audits for appropriate user access—should be built into every

organizational budget. When incidents happen—and they will

happen as surely as bridges collapse—they should be examined by

competent auditors and incident responders with regulatory

authority, just as major incidents involving airlines are handled by

the National Transportation Safety Board (NTSB).

At present, however, the United States lacks an NTSB for

cybersecurity. Due to the government’s lack of expertise, it is overly

reliant on large companies such as EY, PwC, and Deloitte to handle

this work. If the U.S. government isn’t capable of running a post-

mortem on major cyberevents, citizens should be asking why—

instead of letting lawmakers hand the work to contractors.

Responding to major cyberattacks requires battalions of highly

trained government analysts, not armies of accountants and

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attorneys.

Yet the White House, under President Donald Trump, has failed to

fill or has outright eliminated almost every major cybersecurity

position. There are a few brilliant holdouts bravely providing solid

advice on information security and best practices. (The government

agency 18F and the United States Digital Service are both doing

valuable work but receive far smaller budgets than they deserve.)

But cybertalent is draining faster than it is being replaced at the

highest levels.

Cyberdefense isn’t magic. It’s plumbing and wiring and pothole

repair. It’s dull, hard, and endless. The work is more maintenance

crew than Navy SEAL Team 6. It’s best suited for people who have a

burning desire to keep people safe without any real need for glory

beyond the joy of solving the next puzzle.

The challenge for policymakers is the same as it ever was: Improving

lowest-common denominator infrastructure in cybersecurity makes

for the most effective defense against ill-intentioned adversaries.

Yet politicians have been slow to respond since there’s little pork in

password policies, and forcing everyone to improve their encryption

takes a distant second place to kissing babies on the campaign trail.

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When devastating attacks happen on U.S. soil, peopleuse metonyms to describe them. No one has to describe the specifics

of Pearl Harbor or 9/11; we already know what they signify. When the

cyberattack that lives in infamy happens, it will be so horrifying that

there won’t be a ready comparison. It won’t be the cyber-Pearl

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Harbor. It will have its own name.

Until that point, however, these attacks will remain nameless.

People are frightened of what they can see and understand, not

what they cannot imagine and do not comprehend, and, as a result,

it’s easy to ignore the twice-removed effects of a quiet but deadly

cyberattack. Given that it took more than a decade and a half to

successfully prosecute war criminals from the Yugoslav wars of the

mid-1990s even with overwhelming photographic evidence and

personal testimony, it’s not surprising that the international

community has a hard time agreeing on what constitutes a

cyberattack deserving of reprisal—especially when countries can’t

even settle on a definition for themselves.

The first step to improving cyberdefense would be to determine

what does, in fact, constitute a cyberattack by a foreign power as

opposed to a mere prank or industrial espionage. Then officials and

legislators need to decide what constitutes an act of justifiable self-

defense during and after such an attack.

To date, there have been few attempts to create such global norms.

In 2013, a group of experts on digital law convened in Tallinn,

Estonia, and wrote the Tallinn Manual, the closest thing to digital

Geneva Conventions the world currently has. (In 2017, it was

updated to the Tallinn Manual 2.0.) It defined the characteristics of

a cyberattack, including targeting and disabling critical

infrastructure, hitting health care facilities, destroying

transportation corridors or vehicles containing people, and

attempts to penetrate the computer networks of opposing military

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forces. The original manual was less clear about disinformation

campaigns and hacking elections but did deem interference in a

foreign country’s elections a violation of state sovereignty if it

included an attempt at regime change.

In the run-up to the 2017 German parliamentary elections, a string

of cyberattacks led to fears of Russian meddling, but according to

the Charter of the United Nations, unless armed force has been

brought to bear within the borders of a country, no internationally

recognized act of aggression has occurred. This definition of war is

hopelessly out of date.

Similarly, cyberattacks in the Netherlands in 2017 and 2018 resulted

in the denial of government funding and vital services to citizens,

but because conventional battlefield weapons weren’t used, the U.N.

Charter’s provisions weren’t violated. Countries are beginning to

coalesce around the idea that some forms of active countermeasures

are justified in self-defense, if not in actual reciprocation, under

international law.

Reaching an international consensus on what triggers a country’s

right to self-defense in cyberspace requires a coherent, common

understanding on where to draw the line between nefarious

economic or intelligence activities and true cyberattacks.

One model could take shape if Russian interference in foreign

elections is proved beyond any reasonable doubt. Drawing a chain

of evidence between Russian state-sponsored election meddling via

a cyberattack and actual election outcomes could lead to a global

consensus on what constitutes extralegal military activity in

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cyberspace. It’s already clear that elections in multiple countries

have been meddled with, and no militaries have visibly responded.

In the U.S. case, former President Barack Obama responded by

declaring a month before he left office that the United States would

respond at a time and place of its choosing. But his successor has

not visibly followed through on that threat, at least in cyberspace.

No definition of a cyber-related war crime can be effective without

international legitimacy. If a group of experts actually did convene

to create binding digital Geneva Conventions, it’s unclear from what

source it would derive its authority. NATO sponsored the Tallinn

conference, but the Tallinn Manual is nonbinding and was not an

official NATO publication. Moreover, the alliance itself is currently

on shaky ground, and there’s no guarantee that the United States

would abide by any agreement.

In the absence of a binding global accord, the world will remain

vulnerable to a motley mix of hackers, warriors, intelligence

operatives, criminals, and angry teenagers—none of whom can be

distinguished from behind three proxy servers. It would be nearly

impossible to identify perpetrators with 100 percent confidence if

they take even rudimentary steps to cover their digital tracks after

cyberattacks.

Were disaster to strike Southern California tomorrow, scientific tests

and forensic analysis would allow us to tell whether it was an

earthquake or a bomb—even if both events could destroy

approximately the same amount of property. Yet it would be very

easy to confuse a distributed denial of service attack on a U.S.

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government website launched for fun by a few juvenile hackers in

St. Petersburg with an attack launched by the Russian military to

deliberately deny U.S. citizens the ability to register to vote or collect

entitlements. Cyber-enabled disinformation campaigns are equally

problematic to attribute and to punish. Despite the consensus

among experts and intelligence services that Russia tampered with

the 2016 U.S. presidential election, it is proving extremely difficult to

gain nonpartisan consensus that Russian-targeted advertising

purchases on social media constitute hostile acts by a foreign power.

The challenge today is the rapid speed at which cyberspace morphs

and evolves. It is changing faster than international summits can be

convened, making obsolete any deal that takes longer than a week

or two to negotiate. Even if one country can come to an internal

agreement on what constitutes a cyberattack from one private party

to another, there’s no guarantee that two countries could do the

same. But they will have to try.

Habits tend to become tradition. That’s how the 1648 Peace of

Westphalia, intellectually inspired by Hugo Grotius, came to define

the modern nation-state and govern international relations. Grotius,

a Dutch lawyer and the father of just-war theory, defined the first

series of rules by which an anarchic international order could begin

to structure itself. After 370 years, the concept of the modern state

seems largely set in stone and has been repeatedly reinforced by its

use as a framework for relations.

The international community needs new habits for a new era.

Leaders must follow NATO’s tentative footsteps in Tallinn and

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convene digital Geneva Conventions that produce a few deep, well-

enforced rules surrounding the conduct of war in cyberspace.

Cyberwar is the continuation of kinetic war by plausibly deniable

means. Without a global consensus on what constitutes cyberwar,

the world will be left in an anarchic state governed by contradictory

laws and norms and vulnerable to the possibility of a devastating

war launched by a few anonymous keystrokes.

This article originally appeared in the Fall 2018 issue of Foreign

Policymagazine.

Tarah Wheeler is an information security researcher and politicalscientist. She is aNew America cybersecurity policy fellow and senior director of datatrust and threat and vulnerability management atSplunk. Twitter: @tarah