[ISN] Tallinn 2.0 and a Chinese View on the Tallinn Process

http://www.lawfareblog.com/2015/05/tallinn-2-0-and-a-chinese-view-on-the-tallinn-process/ By Ashley Deeks LAWFARE May 31, 2015 This past week, the NATO Cooperative Cyber Defense Center of Excellence put on its annual Cyber Conflict conference in Tallinn, Estonia. The conference boasted a number of experienced cyber-hands, including Adm. Mike Rodgers, DefCon founder Jeff Moss, and law of armed conflict expert Mike Schmitt. One of the most interesting sessions, which included a presentation by Mike, focused on aspects of the Tallinn Manual versions 1.0 and 2.0. Version 1.0, produced by an independent group of experts, came out in 2013. It proffered what the experts saw as current black letter law on jus ad bellum and jus in bello rules relevant to cyber operations. The Manual includes both crisp articulations of the rules and more extensive commentary setting out the legal basis for the rule and any differences that arose among the experts. Version 2.0 picks up where Version 1.0 left off, and will set forth the experts’ views on what international law applies to cyber activity that falls below the level of armed conflict or the use of force. Mike previewed some of the topics that 2.0’s group of experts will discuss, including customary rules related to sovereignty. As Mike notes, sovereignty is not simply a factor restricting a state’s activities in other states’ territory. It also is the basis for states to regulate and exercise jurisdiction within their territory over people, hardware, and cyber operations. One challenge for the experts will be to achieve consensus on what types of activities by one state violate another state’s sovereignty: what level of damage, intrusion, or alteration of data suffices? Other norms up for discussion relate to due diligence obligations by states to stop actions that produce adverse consequences for other states, and the applicability of state responsibility (including counter-measures and the use of “necessity” arguments). Tallinn 2.0 has the potential to be even more influential than Tallinn 1.0, because it systematically will address activities that are far more prevalent in the cyber realm than uses of force or armed attacks. Bill Boothby, a former Deputy Director of Legal Services for the UK Royal Air Force, then provided a retrospective look at Tallinn 1.0. Mike Schmitt had asked Bill to review all of the literature that offered reviews or critiques of Tallinn 1.0, to assess whether to consider certain modest amendments to the Manual’s commentary (though not to its black letter rules) or to take up certain issues that Tallinn 1.0 did not cover. Bill assessed that there has been huge interest in the Manual since it came out, but that the Manual reflected “all reasonable positions” on the issues it took up and that there were only a few amendments worth pondering. In particular, Bill wondered whether the definition of what constitutes a “cyber attack” might need to expand to include “major disruptions” that nevertheless do not produce physical harm to the affected state. He also asked whether the jus in bello rule on precautions was ill-suited to cyber, given that states utterly have failed to segregate their military cyber infrastructure from civilian cyber infrastructure. […]