Electoral Cyber Interference, Self-Determination and the Principle of Non-Intervention in Cyberspace

Introduction

In recent years we have witnessed persistent attempts to interfere in elections by using cyber means. Russia’s cyber interference in the 2016 US presidential election is a prime and perhaps the most discussed example but it is not the only one; other incidents include electoral interference in the Netherlands, the UK, France and Germany to name just a few (see here). Such interference mainly consists of attacks on electoral infrastructure and operations to manipulate voting behaviour. For example, Russia’s electoral interference in the 2016 US election consisted of ‘hack and leak’ operations to ‘expose, disgrace, or otherwise undermine a particular individual, campaign, or organisation in order to influence public opinion during an election cycle’ (see here) and disinformation operations defined as ‘false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm’ including harm to the ‘democratic political processes and value’. (see here at 10).

International law commentators struggled to qualify such operations. Although the majority placed them within the framework of the principle of non-intervention, they concluded that they do not satisfy its conditions and in particular that of coercion (indicatively see here and here).

Against this background, I argue that electoral cyber interference can violate the non-intervention principle. I will do this by reinstating the link between the principle of non-intervention and the principle of self-determination and by introducing control as the baseline of coercion. Before I do this, I will explain how international law traditionally construes intervention in order to expose the regulatory gaps that emerge in cases of electoral cyber interference.

The principle of non-intervention and electoral cyber interference

Non-intervention is a fundamental principle of international law because it emanates from the principle of state sovereignty and protects certain essential aspects of this principle. More specifically, it protects the integrity and autonomy of a state’s authority and will in the sense of its capacity to internal and external self-governance. The meaning and content of non-intervention is determined by its opposite that is, intervention. Intervention is traditionally understood as coercive interference in matters that fall within a state’s sovereign affairs such as the choice of political, economic, social and cultural system and the formulation of foreign policy (see here at para 205). Coercion as the defining element of intervention implies compulsion in the sense that one state compels another state to take a particular course of action against its will.

Applying the aforementioned definition to electoral interference such as Russia’s interference in the 2016 US presidential election, it can be said that it did not amount to intervention because, although it targeted the ‘choice of political system’ which remains a sovereign prerogative, it was not coercive in that it did not force the state’s will. The conclusion would have been different had Russia interfered with the electoral infrastructure. Indeed, many states now consider such interference as unlawful intervention (see here). Although this is a welcome development, it addresses only one aspect of the phenomenon of electoral cyber interference and not that of voter manipulation. How voter manipulation can violate the principle of non-intervention is an issue that I will discuss immediately.

Non-intervention, self-determination and the baseline of coercion

As I said, the traditional reading of intervention vests all sovereign authority and will in the government which is then protected from external interference but it does not take into account how this authority and will are formed and how intervention can impact on the process of their formation. Yet, a government’s authority and will remains free only when its sourcing is also free. This immediately brings to light the relationship between non-intervention and self-determination. The essence of self-determination is the ‘right to authentic self-government, that is, the right of a people really and freely to choose its own political and economic regime’ (see here at 137). The principle of non-intervention thus protects this aspect of self-determination to wit, the free and authentic expression of will by the people as well as the conditions that enable the people to form authority and will and to make free choices. External interference not only inverses this process by undermining its integrity and freedom but also impinges on the expression of authority and will by the government that emerges. It thus transpires that by aligning the principles of non-intervention and self-determination, the normative and operational scope of non-intervention shifts to the people and to the process of forming authority and will.

In order now to determine when interference in that process constitutes intervention, the baseline of coercion needs to be identified. According to Oppenheim, the essence of coercion is the fact that a state intervened against is in effect deprived of control over a matter (see here at 428). Control means one state’s purposive direction over another state’s authority and will which prevents the latter from discharging them freely.

Electoral cyber interference and intervention

Where coercion as control can manifest itself more acutely is when a state’s authority and will are manipulated at its source; in the process of their formation. To explain, when a state interferes in the electoral process, for example through disinformation or ‘hack and leak’ operations, it interferes with the structures but also with the environment that condition and facilitate the formation of authority and will by the people and substitutes the authentic process of self-determination with an artificially constructed process in order to generate particular attitudes and results aligned to the intervenor’s will. In this case, the intervening state controls not only the peoples’ cognitive environment within which authority and will are formed but also their choices. It also controls the authority and will of the government that emerges. Consequently, the right to self-determination as self-governance which is protected by the non-intervention principle is essentially curtailed. As former F.B.I. Director James Comey said before the Senate Intelligence Committee with regard to the Russian interference:

‘… we have this big, messy, wonderful country where … nobody tells us what to think, what to fight about, what to vote for, except other Americans .… But we’re talking about a foreign government that, using technical intrusion, lots of other methods, tried to shape the way we think, we vote, we act’ (see here)

It can be counter-argued that any influence operation may be caught by this definition. This is not correct. What transforms such operations into intervention is that they are purposively designed to exert control over a sovereign matter (the formation and expression of authority and will by the people and by the government) through subterfuge for example false, fabricated, misleading, or generally manipulated information. In contrast, propaganda or influence operations may extol the virtues of an ideology, a product or a value but not misleadingly and their aim is not to exert control over the sovereign will of the target. Whether there is subterfuge can be assessed by looking into how the confidentiality, integrity, or availability of information has been affected (see here at 14ff). Take for example the case of deep fakes when, during an electoral campaign, imageries, voices or videos of politicians are simulated. In this case, it is the authenticity and integrity of the disseminated information that is encroached. When politicians’ private emails are leaked as it happened in the US and French elections, it is the confidentiality and integrity that is at issue. Even in the case of true information, if it is mixed with false information or is presented in a false or fabricated context or if it relates to partial truths, it is its integrity and authenticity that is encroached. If the aim of such operations is to manipulate the cognitive process where authority and will are formed by discrediting particular politicians or their ideology and take control over choices, they would constitute intervention. Such operations would constitute intervention even if they take place within the jurisdictional confines of the intervenor state. As the case of recognition, de-recognition or non-recognition of governments or opposition groups reveals, the intervening action should not necessarily take place within the jurisdictional borders of the targeted state. As a matter of fact, cyberspace, because of its interconnectedness, amplifies the external effects of such operations. Also, if a state provides cyber-related assistance, for example by processing voters data or by analysing voters preferences with the aim of manipulating their cognitive environment and controlling their choices would constitute intervention. It should be noted in this regard that most states have laws to prohibit foreign funding or interference in elections in order to maintain the authenticity and integrity of the process. Whether political parties can hire private firms for that purpose is a completely different matter.

Furthermore, such interference needs to reach a certain degree of severity (see here) in order to constitute intervention. This is assessed not only against the importance of values that are at stake (self-determination in this case) but also by the intensity and widespread nature of the interference (demonstrated in relation to the 2016 US presidential election by the Mueller indictment here) as well as by the number of participants whose values are so affected. In relation to the latter, analysis of social networks can reveal the number of viewers or artificial movements and to some extent measure the number of affected individuals although the impact on voting preferences cannot be measured with absolute confidence (in general see here). 

Conclusion

The aim of this piece is conceptual, to reassess the meaning and content of the principle of non-intervention in light of electoral cyber interference. This is necessary because cyberspace is a domain linked to states’ political, legal, economic, social and cultural activities and it is a domain where states operate and exert power. Furthermore, cyberspace provides a facilitative environment where intervention can take place, diversifies its means and methods but also enhances its scalability, reach and effects. With regard to electoral interference, the dawn of cyberspace has made it easier to produce, disseminate and share disinformation, increased its accessibility by amplifying the circle of targeted audiences or by micro-targeting, increased the immediacy and speed of such operations, complicated attribution and allowed for remotely conducted operations.

The implications of such reassessment are wider and concern the contemporary meaning and content of the principle of non-intervention and its relationship with the principles of self-determination or sovereignty but also the regulatory scope and effectiveness of international law. For international lawyers this requires renewed engagement being cognizant of the fact that non-intervention or intervention for that matter are dynamic concepts whose meaning and content has changed over time. In my opinion, it is not only the ontological questions concerning the meaning and content of the principle that need to be revisited but also questions as to which interventions are lawful or at least justified. For example, is electoral cyber interference in democracies unlawful intervention but lawful or justified against authoritarian regimes? That said, in addition to academic enquiries, it is also for states to take up the mantle and provide more clarity as to the meaning and content of intervention in cyberspace or in the physical world.