Defending Democracies
Combating Foreign Election Interference in a Digital Age
Edited by
DUNCAN B. HOLLIS JENS DAVID OHLIN
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© Duncan B. Hollis & Jens David Ohlin 2021
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Library of Congress Cataloging-in-Publication Data
Names: Hollis, Duncan B., 1970– editor. | Ohlin, Jens David, editor.
Title: Defending democracies : combating foreign election interference in a digital age / edited by Duncan B. Hollis, Jens David Ohlin.
Description: First edition. | New York, NY : Oxford University Press, [2021] | Series: Ethics, national security, and the rule of law | Includes index.
Identifiers: LCCN 2020039406 (print) | LCCN 2020039407 (ebook) | ISBN 9780197556979 (hardback) | ISBN 9780197556993 (epub) | ISBN 9780197556986 (updf) | ISBN 9780197557006 (digital-online)
Subjects: LCSH: Election law. | Elections—Corrupt practices. | Self-determination, National. | Sovereignty. | Election law—United States. | Presidents—United States—Elections.
Classification: LCC K3304 .D44 2017 (print) | LCC K3304 (ebook) | DDC 342/.07—dc23
LC record available at https://lccn.loc.gov/2020039406
LC ebook record available at https://lccn.loc.gov/2020039407
DOI: 10.1093/oso/9780197556979.001.0001
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List of Contributors vii
Introduction 1
Duncan B. Hollis and Jens David Ohlin
I. ELECTION INTERFERENCE BY FOREIGN POWERS: UNDERSTANDING ITS HISTORY AND ITS HARM(S)
1. Should We Worry about Partisan Electoral Interventions? The Nature, History, and Known Effects of Foreign Interference in Elections 19 Dov H. Levin
2. Understanding Disinformation Operations in the Twenty-First Century 41 Steven J. Barela and Jérôme Duberry
3. Weaponizing Information Systems for Political Disruption 73 Valeria Marcia and Kevin C. Desouza
4. Protecting Democracy by Commingling Polities: The Case for Accepting Foreign Influence and Interference in Democratic Processes 93 Duncan MacIntosh
II. UNDERSTANDING ELECTION INTERFERENCE VIA A COMPARATIVE LENS
5. The Specter of Chinese Interference: Examining Beijing’s Inroads into India’s Digital Spaces and Political Activity 117 Arun Mohan Sukumar and Akhil Deo
6. A Swedish Perspective on Foreign Election Interference 139 Alicia Fjällhed, James Pamment, and Sebastian Bay
7. When Does Election Interference via Cyberspace Violate Sovereignty? Violations of Sovereignty, “Armed Attack,” Acts of War, and Activities “Below the Threshold of Armed Conflict” via Cyberspace 163 James Van de Velde
III. COMBATING FOREIGN ELECTION INTERFERENCE UNDER INTERNATIONAL LAW
8. Foreign Election Interference and International Law 179 Chimène I. Keitner
9. Cybersecurity Abroad: Election Interference and the Extraterritoriality of Human Rights Treaty Obligations 197 Ido Kilovaty
10. The Dangers of Forceful Countermeasures as a Response to Cyber Election Interference 215 Jacqueline Van De Velde
11. Election Interference: A Unique Harm Requiring Unique Solutions 239 Jens David Ohlin
IV. COMBATING FOREIGN ELECTION INTERFERENCE THROUGH OTHER MEANS
12. The Free Speech Blind Spot: Foreign Election Interference on Social Media 265
Evelyn Douek
13. Foreign Election Interference and Open-Source Anarchy 293 David P. Fidler
14. Defending Democracies via Cybernorms 315 Duncan B. Hollis and Jan Neutze
15. Using Campaign Finance Reform to Protect U.S. Elections from “Dark Money ” and Foreign Influence
Ian Vandewalker and Lawrence Norden
16. Conclusion: An Outsider Looks In
List of Contributors
Steven J. Barela is Senior Research Fellow at the University of Geneva in the Global Studies Institute and a member of the Law Faculty. He specializes in interdisciplinary scholarship on national security issues, has produced a monograph on counterterrorism and an edited volume on armed drones, and was the lead editor of a volume on interrogation and torture with Oxford University Press in 2020.
Sebastian Bay, MSc, is a researcher and project manager at the Swedish Defence Research Agency focusing on election security, hybrid threats, and disinformation.
Akhil Deo is a Junior Fellow with the Technology and Media Initiative at the Observer Research Foundation, New Delhi.
Kevin C. Desouza is a Professor of Business, Technology, and Strategy in the School of Management at the Queensland University of Technology. He is a Nonresident Senior Fellow in the Governance Studies Program at the Brookings Institution.
Evelyn Douek is a lecturer on law and a doctoral candidate at Harvard Law School and an Affiliate at the Berkman Klein Center for Internet & Society.
Jérôme Duberry is a Research Associate at the Albert Hirschman Centre for Democracy, Graduate Institute, and Postdoctoral Researcher at the Dusan Sidjanski Centre of Excellence in European Studies, GSI, University of Geneva. His research focuses on the use of emergent and digital technologies by civil society.
David P. Fidler is an adjunct senior fellow for cybersecurity and global health at the Council on Foreign Relations.
Alicia Fjällhed is a PhD student at the Department of Strategic Communication, Lund University.
Duncan B. Hollis is Laura H. Carnell Professor of Law at Temple University’s James E. Beasley School of Law and a nonresident Fellow at the Carnegie Endowment for International Peace. He is an elected member of the American Law Institute and the OAS Inter-American Juridical Committee; in the latter role he serves as Rapporteur for a project on improving the transparency of how states apply international law in cyberspace. Professor Hollis also regularly consults with the Microsoft Corporation on its digital peace agenda.
Chimène I. Keitner is Alfred & Hanna Fromm Professor of International Law at UC Hastings Law in San Francisco. She previously served as Counselor on International Law in the U.S. Department of State and is an adviser on the American Law Institute’s Restatement (Fourth) of the Foreign Relations Law of the United States.
Ido Kilovaty is the Frederic Dorwart and Zedalis Family Fund Assistant Professor of Law, University of Tulsa, College of Law and a Visiting Faculty Fellow, Center for Global Legal Challenges, Yale Law School.
Dov H. Levin is an Assistant Professor of International Relations at the University of Hong Kong. His main research topic is on the effects of foreign interference with a special focus on the causes, effects, and effectiveness of partisan electoral interventions.
Herbert Lin is senior research scholar for cyber policy and security at the Center for International Security and Cooperation and Hank J. Holland Fellow in Cyber Policy and Security at the Hoover Institution, both at Stanford University. His research interests relate broadly to policy-related dimensions of cybersecurity and cyberspace, and he is particularly interested in the security dimensions of information warfare and influence operations on national security. He is a member of the Science and Security Board of the Bulletin of Atomic Scientists. In 2016, he served on President Obama’s Commission on Enhancing National Cybersecurity. He received his doctorate in physics from MIT.
Duncan MacIntosh is Chair of the Philosophy Department at Dalhousie University and a member of the Executive Board of the Center for Ethics and the Rule of Law, which is based at the University of Pennsylvania Law School.
Valeria Marcia is a lawyer and a PhD candidate of Comparative Private Law at the University of Milan-Bicocca.
Jan Neutze is Senior Director for Digital Diplomacy at Microsoft and heads the company’s Defending Democracy Program. He joined Microsoft in 2011 from the United Nations, where he worked in the Executive Office of the Secretary-General and the Department for Political Affairs. Jan co-chaired the Global Future Council on Cybersecurity of the World Economic Forum from 2018 to 2019, and he is a Certified Information Security Systems Professional . Jan holds a German law degree from the University of Münster and an MA in Security Studies from the Walsh School of Foreign Service at Georgetown University.
Lawrence Norden is the director of the Election Reform Program at the Brennan Center for Justice at NYU School of Law. He leads the Center’s work in a variety of areas, including its effort to bring balance to campaign funding and protect elections from foreign interference.
Jens David Ohlin is Vice Dean and Professor of Law at Cornell Law School. He is the author of a new casebook on international law called International Law: Evolving Doctrine and Practice, and his latest monograph is Election Interference: International Law and the Future of Democracy (2020). He is the co-editor, with Claire Finkelstein, of the Oxford Series on Ethics, National Security, and the Rule of Law.
James Pamment, PhD, is co-director of the Partnership for Countering Influence Operations at the Carnegie Endowment for International Peace. He is also associate professor of Strategic Communication at Lund University and a special adviser to the European Centre of Excellence for Countering Hybrid Threats.
Arun Mohan Sukumar is a PhD Candidate at the Fletcher School, Tufts University, and a Junior Fellow at the School’s Centre for International Law and Governance.
Ian Vandewalker is senior counsel for the Democracy Program at the Brennan Center for Justice at NYU School of Law, where he works to address the influence of money in politics and foreign interference in U.S. elections.
James Van de Velde is a Booz Allen Hamilton consultant to U.S. Cyber Command, Associate Professor at the National Intelligence University, and Adjunct Faculty at Johns Hopkins and Georgetown Universities.
Jacqueline Van De Velde is an Associate at King & Spalding, LLP. She previously served as an Attorney Adviser for a U.S. District Court and clerked on a U.S. Court of Appeals and a U.S. District Court.
Introduction
Duncan B. Hollis and Jens David Ohlin
I. Why Care about Election Interference?
Election interference is one of the most widely discussed international phenomena of the last five years. Russian covert interference in the 2016 U.S. presidential election elevated the topic into a national priority.1 But that experience was far from an isolated one. Evidence of election interference by foreign states or their proxies has become a regular feature of national elections (e.g., the 2017 French presidential elections2), regional elections (the 2019 EU Parliamentary elections3), not to mention national referenda (e.g., the Brexit Question,4 Crimean annexation5). Paired with historical evidence of substantial and repeated foreign electoral interference throughout the Cold War (and beyond),6 the issue is a constant and critical challenge to the very functions of democracy. It is, moreover, a problem likely to get worse in the near future; information and communication technologies afford those who would interfere with new tools that can operate (at scale) in ways previously unimaginable. Twitter bots, Facebook advertisements, closed social media platforms (e.g., 8chan), algorithms that prioritize extreme views, disinformation, misinformation, and malware that opens up access to previously secret campaign and candidate communications are all increasingly prominent features of electoral processes.
For all the attention and importance attached to foreign election interference, there is currently a massive gap in the legal literature on the topic (nor, frankly, are
1 See generally Office of Dir. Nat’l Intelligence, Assessing Russian Activities and Intentions in Recent U.S. Elections (Jan. 6, 2017); Robert S. Mueller, III, Report on the Investigation into Russian Interference in the 2016 Presidential Election (Mar. 2019).
2 See, e.g., French Prosecutors Investigate Hacking of Macron Campaign, Reuters (May 9, 2017); Andy Greenberg, The NSA Confirms It: Russia Hacked French Election “Infrastructure, ” Wired (May 9, 2017).
3 See, e.g., European Commission and High Representative of the Union for Foreign Affairs and Security Policy, Report on the implementation of the Action Plan Against Disinformation, JOIN(2019) 12 final (June 14, 2019) 3; Michael Birnbaum & Craig Timberg, E.U.: Russians Interfered in Our Elections, Too, Washington Post (June 14, 2019).
4 Jeremy Kahn, U.K. Probes Russian Social Media Influence in Brexit Vote, Bloomberg (Nov. 2, 2017); Clare Llewellyn et al., Russian Troll Hunting in a Brexit Twitter Archive, in JCDL 2018 Proceedings of the 18th ACM/IEEE Joint Conference on Digital Libraries 361–362 (IEEE, 2018), at https://dl.acm. org/doi/pdf/10.1145/3197026.3203876
5 Kenneth Geers, Strategic Analysis: As Russia-Ukraine Conflict Continues, Malware Activity Rises, FireEye Blog (May 28, 2014); Jeffrey Carr, Rival Hackers Fighting Proxy War over Crimea, CNN (Mar. 25, 2014).
6 Both the United States and Russia have a long history of election meddling. See Peter Beinart, The U.S. Needs to Face Up to Its Long History of Election Meddling, The Atlantic (July 22, 2018); see also Casey Michel, Russia’s Long and Mostly Unsuccessful History of Election Interference, Politico (Oct. 26, 2019).
Duncan B. Hollis and Jens David Ohlin, Introduction In: Defending Democracies. Edited by Duncan B. Hollis and Jens David Ohlin, Oxford University Press (2021). © Duncan B. Hollis & Jens David Ohlin. DOI: 10.1093/oso/9780197556979.003.0001
other disciplines much further ahead).7 The idea of a “gap in the literature” is a trope of many law review abstracts, but in this case, the statement is painfully true. While international lawyers continue to spill gallons of ink on the use of force and other traditional topics in international law, election interference has received insufficient scrutiny, despite almost universal recognition of its significance.
The present volume is designed as a corrective. Defending Democracies: Combating Foreign Election Interference in a Digital Age tackles the problem through an interdisciplinary lens. It focuses on three things: (1) defining the problem of foreign election interference; (2) exploring the solutions that international law might bring to bear; and (3) considering alternative regulatory frameworks for understanding and addressing the problem. The result is a deeply urgent examination of an old problem on social media steroids, one that implicates the most central institution of liberal democracy—elections.
Before continuing, we should note that the volume’s methodology is interdisciplinary though largely weighted toward law. It seeks to bring domestic and international perspectives on elections and election law into conversation with other disciplinary frameworks. We hope that in doing so, this volume may offer a broader perspective, escaping the typical biases of lawyers encountered in both the domestic and international spheres. For many domestic lawyers, every problem calls out for a domestic legal solution, and international lawyers often have a corresponding bias preferring international legal solutions for issues of international relations. Yet, law has no monopoly on regulating threats, especially those as deeply political as democratic institutions and the electoral processes on which they rest. Hence, we invited a broader group of scholars to join us in this project to avoid reinforcing the familiar but untested responses (i.e., international lawyers calling for more treaties or domestic lawyers calling for reforms in administrative regulations) and to create space for alternative frameworks that might contribute to redressing or at least diluting the threat that foreign election interference poses.
Taken together, the chapters that follow represent, we believe, a far more faithful representation of the broad array of solutions that might be deployed, including international and domestic, legal and extralegal, ambitious and cautious. More fundamentally, the volume’s chapters use different disciplinary and normative frameworks to help identify the specific harm foreign election interference threatens—a necessary prolegomenon before any solutions can be proposed or debated.
7 There are exceptions, of course, including Michael N. Schmitt, Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law, 19 Chi. J. Int’l L. 30 (2018); Logan Hamilton, Beyond Ballot-Stuffing: Current Gaps in International Law Regarding Foreign State Hacking to Influence a Foreign Election, 35 Wis. Int’l L.J. 179 (2017). We each have written on this subject previously as well. See, e.g., Jens D. Ohlin, Election Interference (2020); Duncan B. Hollis, The Influence of War; the War for Influence, 32 Temple Int’l & Comp. L.J. 31 (2018); Jens D. Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law, 95 Tex. L. Rev. 1579 (2017). For work in other disciplines, see Robert K. Knacke, Banning Covert Foreign Election Interference (CFR, May 29, 2020), at https://www.cfr.org/report/banning-covert-foreign-election-interference; Securing American Elections: Prescriptions for Enhancing the Integrity and Independence of the 2020 U.S. Presidential Election and Beyond (Michael McFaul ed., Stanford University, June 2019); Ryan L. Boyd et al. Characterizing the Internet Research Agency’s Social Media Operations During the 2016 U.S. Presidential Election using Linguistic Analysis, PsyArXiv (2018); Ian Vandewalker & Laurence Norden, Securing Elections from Foreign Interference (Brennan Center for Justice, 2017).
II. This Volume’s Contribution to the Debate
In Part I, “Election Interference by Foreign Powers: Understanding Its History and Its Harm(s),” the volume begins with four chapters introducing the concept of foreign election interference with particular attention to its online manifestations. It critically evaluates key, basic questions: What is foreign election interference and why do states or their agents pursue it? Is it a new phenomenon or simply an old form of statecraft with new (cyber) methodology? How is election interference conducted in this new world of social media platforms and email hacking? What in particular about computer technology and information systems makes election interference particularly dangerous? How can the “foreign” aspect of election interference be isolated from the “domestic politics” that is a regular feature of democratic processes? And, finally, is foreign election interference even all that harmful in comparison to the alternatives? Why not simply allow foreign voices with an interest in electoral outcomes to weigh in on, and campaign for, a particular result alongside domestic actors?
In chapter 1, “Should We Worry about Partisan Electoral Interventions? The Nature, History, and Known Effects of Foreign Interference in Elections,” Dov H. Levin focuses on the historical practice to help guide the central normative question, that is, whether and why election interference is problematic. In this sense, Levin seeks to broaden the focus from the specific example of Russia’s interference in the 2016 election and instead situate that example within a much larger category of interventions against political processes in other states, including campaign funding and campaign assistance, to name just a few. What Levin uncovers is that election interference is a “longstanding common phenomenon” even as he (rightly) concedes that its ubiquity does not eliminate its problematic nature. Rather, Levin notes that it has disturbing impacts: increasing political polarization and altering election results through the deliberative process, though Levin admits that “most scholars of American politics are still highly skeptical about these arguments.”8 Levin concludes that whatever the motivation, a state’s involvement in another state’s political process will almost invariably have negative effects on the target state’s democracy because the interventions “significantly increased the chances of a democratic breakdown in the targeted state in the following five years by a factor of 2.5 to 8 times.”9 The mechanism for this harm includes the loss of integrity of, and faith in, democratic institutions, as well as the promotion of corruption that can linger after an intervention. Finally, Levin finds a strong correlation between election interference and domestic instability (and even domestic violence) in its aftermath. The result is a chapter that situates foreign election interference as a historical tradition even as it emphasizes its highly problematic effects in the digital age.
In chapter 2, “Understanding Disinformation Operations in the Twenty-First Century,” Steven J. Barela and Jérôme Duberry focus on Soviet-era disinformation campaigns as a way of understanding how today’s election interference differs from its historical antecedents. The authors use a former Romanian intelligence chief as a case study for understanding the promise and perils of disinformation campaigns.
8 See chapter 1, this volume, at 32.
9 Id. at 33.
They combine these case studies with more contemporary examples of election interference to frame the concept of disinformation and the operations states undertake to spread it. Barela and Duberry conclude that “because disinformation aims to twist the truth in subtle ways when key facts remain secret and unavailable, exposing an operation becomes a tedious and difficult task.”10 The authors end their chapter by concluding that the opacity of the social media space—where it can be hard to trace the source of information—has made this task even more difficult in contemporary cases of election interference. In essence, their pessimistic story finds a difference in degree, but not in kind, between Soviet-era disinformation and modern disinformation over Twitter and Facebook. The digital tools of social media platforms allow for added “depth and precision” to disinformation operations when compared to historical antecedents even as many of the original concepts and strategies remain the same.
In chapter 3, “Weaponizing Information Systems for Political Disruption,” Valeria Marcia and Kevin C. Desouza look, in the broadest possible way, at how information systems can be used to accomplish political disruption. Although they recognize the threat posed by cyberattacks, Marcia and Desouza focus on a wider array of examples where (even with adequate cybersecurity) information systems are threatened, including but not limited to election interference. The authors develop a novel explanatory framework—which they call ALERT—to categorize and systematize all forms of political disruption via information systems. The acronym stands for (1) Actor; (2) Lever; (3) Effect; and (4) Response, which can generate (5) Theories for understanding and predicting political disruptions. The goal of the ALERT framework is to provide a systematized taxonomy for understanding the core elements of political disruption via information systems. While the taxonomy itself does not entail normative conclusions, it provides a common “language” for scholars, experts, and policymakers alike. To provide one specific example, the authors suggest that the ALERT taxonomy could serve “as a reference point for developing uniform standards at the international level” that could set “minimum security requirements to be adopted by companies in order to reduce the risk of the weaponization of information systems.”11
In chapter 4, “Protecting Democracy by Commingling Polities: The Case for Accepting Foreign Influence and Interference in Democratic Processes,” philosopher Duncan MacIntosh proposes a counterintuitive solution to the problem of foreign election interference: allow it. MacIntosh wonders whether foreign participation in elections is all that bad and canvasses the various objections to allowing broader participation in elections. Operating from an implicitly cosmopolitan outlook, MacIntosh sees broader foreign participation in national elections as one avenue to broaden America’s parochial perspective. Instead of trying to prevent outsiders from “infiltrating” American elections, he argues that the U.S. government should be working to alleviate the very conditions that lead outsiders to attempt to influence American politics in the first place. If the country were to take these foreign views more seriously, instead of being enthralled to a nationalist outlook, MacIntosh wonders if outsiders would still need to engage in election interference at all. Skeptics may read MacIntosh’s perspective as overly utopian, but MacIntosh retains faith in the
10 See chapter 2, this volume, at 42.
11 See chapter 3, this volume, at 88.
power of reasoned dialogue to structure international relations and reduce or even eliminate the need for states to engage in election interference in the first instance. In a sense, MacIntosh believes we need to cure the disease rather than the symptom—the symptom is election interference, while the disease is the externalities of national policies and interests.
Part II, “Understanding Election Interference via a Comparative Lens,” continues to explore the concept of foreign election interference but pivots from historical and taxonomic efforts to comparative analysis. As central and pivotal as the American experience with election interference may be, it would be a mistake to assume that it encapsulates the problem set completely or sufficiently. Looking at other countries’ experiences alongside the U.S. experience expands our understanding of what states participate in election interference, the methods interfering states and their proxies pursue, as well as the different targets for their attention. These comparative conversations are important because the varying political dynamics, power structures, and legal cultures they reveal demonstrate that we need an understanding of election interferences (and potential responses to them) that accommodates the divergent contexts in which they occur.
For example, in chapter 5, “The Specter of Chinese Interference: Examining Beijing’s Inroads into India’s Digital Spaces and Political Activity,” Arun Mohan Sukumar and Akhil Deo look at the potential for Chinese interference in Indian elections—a phenomenon that has largely been ignored in the American and European press (both of which have focused, perhaps understandably, on Russian interference). Sukumar and Deo ably demonstrate why such a myopic view is misplaced because there is much to learn from the example of Chinese interference efforts and the Indian context in which they may occur. The authors argue that in the Indian experience, increased scrutiny of social media information operations means that foreign election interference is almost always detected, making fully covert operations next to impossible. Yet, Sukumar and Deo note, China may take advantage of India’s particular vulnerability to disinformation campaigns due to “near-continuous federal and local election cycles,” “the country’s young and internet-savvy demographic that has shown a voracious appetite for social media,” and a “growing network of marketing agencies, political consultancies, influencer networks and analytics platforms.”12 China, moreover, has situated itself to uniquely perpetuate interference by the ubiquity of Chinese digital platforms in India, including their modification and adoption by India’s youth in local languages. The prevalence of Chinese digital platforms might explain why Chinese disinformation campaigns are more likely to target India as opposed to other democracies, like the United States, that China may also wish to influence, but where it lacks such market penetration. Sukumar and Deo concede that “[p]olitical entrepreneurship that harvests tensions among communities, especially along religious lines, has always been a feature of Indian democracy.” Nonetheless, “[t]he cost of exploiting social cleavages has lowered, with digital spaces offering anonymity and deniability to political outfits.”13 As a result, China has an established capacity to foment division across the Indian social and political space.
12 See chapter 5, this volume, at 124.
13 Id. at 130.
In chapter 6, “A Swedish Perspective on Foreign Election Interference,” Alicia Fjällhed, James Pamment, and Sebastian Bay describe and evaluate Sweden’s experience with election interference, including Swedish efforts to develop counterstrategies. The authors aim to identify what has worked (and what did not), so that other actors and other states may benefit when designing their own counterstrategies. The authors conceptualize the harm of election interference as “information influence,” which the Swedish government defines as “deliberate interference in a country’s internal affairs to create a climate of distrust between a state and its citizens” and to “further the interests of a foreign power through the exploitation of perceived vulnerabilities in society.”14 As an example, they highlight how outside actors have fostered political and social polarization in Sweden centered around the European migration crisis. They explain how a distinctive feature of the Swedish government—management through independent administrative agencies—meant that an independent agency operating at arm’s-length from political oversight has taken responsibility for responding to election interference. Moreover, they highlight a particular strategy for doing so— that is, fostering the public’s “resiliency” to potential information influence operations through agency communications designed to warn the public about the danger of misinformation on social media platforms. The authors conclude by emphasizing that the Swedish government assessed that the 2018 election—the first to be conducted with new counterstrategies in place—proceeded appropriately (though they concede that it is difficult to prove that the government strategies were the cause of such a success).
In chapter 7, “When Does Election Interference via Cyberspace Violate Sovereignty?,” James Van de Velde analyzes the American experience with election interference. Van de Velde argues that interference should be assessed on whether there was “unauthorized use” of networks or systems rather than on its effects. His analysis leverages several distinctive features of the American political landscape, including the relative weakness of international legal constraints and the central role that the American presidency plays in making decisions about how to respond to national security threats. Van de Velde notes that a cyber operation that targets an election probably does not rise to the level of an armed attack and would not qualify as an act of war. However, Van de Velde also notes that in the U.S. system, it is the U.S. president who decides when to take the nation to war, so that whether a cyberattack constitutes an act of war is mostly decided by the executive branch. So far, presidents have not considered cyber operations targeting an election as acts of war, though he suggests that could change if subsequent presidents take a different view on the matter. Van de Velde concludes by suggesting that not only did Russia’s 2016 interference not constitute an act of war but that it also was a failure, triggering more responsive actions and attitudes from the U.S. government than might have otherwise occurred.
The comparative analysis in these three chapters foregrounds the fact that the threat of election interference depends on the nature and tenor of the relevant political and social fault lines, which are different in each country. At the same time, these chapters reveal some commonalities: foreign actors seeking to leverage those fault lines and
14 See chapter 6, this volume, at 141.
amplifying them, often to produce social division and distrust in the targeted government or in its electoral processes. Furthermore, these chapters show that national responses to election interference are also structured in part by local differences in political and legal cultures. So, for example, a country that grants strong independence to administrative agencies will tend to allow those agencies to protect democratic deliberations without too much political oversight, while countries with a tradition of strong political oversight of administrative agencies will often mean that those countries embroil the protection of elections in political controversies.
Part III of the volume, “Combating Foreign Election Interference under International Law,” focuses most explicitly on how international legal frameworks evaluate foreign election interference. It includes a survey of all the relevant international legal rules and standards in both restricting how states may approach foreign electoral processes and how states that face interference may respond to it. We recognize that, in theory, a cyberattack could under certain circumstances constitute an illegal use of force in violation of either the jus ad bellum (e.g., Articles 2 and 51 of the UN Charter), or jus in bello (international humanitarian law). Yet, we and the chapters that follow are more focused on nonforceful interference and the extent to which it is restricted by (1) the principle of nonintervention, (2) sovereignty (whether as a concrete rule or a background principle), (3) human rights law (including, but not limited to, the right to privacy and freedom of expression), or (4) self-determination (i.e., the right of a people to select their own destiny through the democratic institution of a free election). The existing literature has largely focused on nonintervention as the dominant trope, although the chapters that follow suggest that this approach is too limiting, if not misplaced.
At the same time, Part III examines how international law may authorize responses to election interference—chiefly, countermeasures (otherwise illegal acts that international law permits when done in response to a prior internationally wrongful act). Countermeasures are, in theory, a legitimate means of self-help enforcement in the face of significant lawbreaking, but international lawyers have long worried about their power to justify what would otherwise be illegal conduct. For that reason, international law has developed robust procedural and substantive constraints on countermeasures that would regulate their use in fighting foreign election interference. Taken together, Part III’s chapters thus map out the full range of frameworks that the international legal system might use to evaluate, regulate, and protect elections from foreign interference. In doing so, this part helps highlight areas where international law is contested (e.g., sovereignty operating as a stand-alone rule) or in need of further clarification (e.g., what interference in elections can qualify as coercion), as well as the potential need for new international law rules.
In chapter 8, “Foreign Election Interference and International Law,” Chimène I. Keitner provides a general overview of the international legal regulation of election interference. Keitner starts out by noting that although international law is built on a Westphalian notion of state sovereignty, the exact contours of the nonintervention principle have escaped easy definition—though not without effort. Keitner discusses how states specifically ceded some control over their internal affairs by creating the United Nations and other international organizations. However, Keitner sees the 1960s and 1970s as the crucial time period when states sought to more precisely give content
to the principle of nonintervention. Applying these efforts to the case of election interference is difficult, Keitner perceptively suggests, because “the terms ‘interference,’ ‘influence,’ and ‘meddling’ seem to have gained the most currency” but none “of these terms sound in a distinctly legal register.”15 After canvassing the various international legal paradigms for understanding election interference—nonintervention, sovereignty, and self-determination—Keitner ends with a tantalizing possibility: leaving the regulation of election interference exclusively to domestic law. Although this might sound like a concession or a defeat for international law, Keitner ends on a more hopeful note, highlighting that in international relations, “publicizing and stigmatizing disinformation campaigns and other efforts to manipulate public opinion might have as much effect as attempts to prohibit them.”16
In chapter 9, “Cybersecurity Abroad: Election Interference and the Extraterritoriality of Human Rights Treaty Obligations,” Ido Kilovaty focuses on the capacity of human rights law to regulate foreign election interference. In doing so, he engages with a particular conceptual and doctrinal obstacle—and one of the greatest controversies in international human rights law—the scope of extraterritorial obligations when a state acts outside of its borders. Extraterritoriality, for example, is the key question that determines whether human rights law might have a role to play in how states conduct an armed conflict (i.e., does a state owe human rights duties only to those within its territory, or do the duties extend to foreign nationals subject to its overseas operations or control). Kilovaty’s contribution asks whether human rights law can regulate election interference given the alleged constraints of human rights law, requiring “control” or “jurisdiction” before human rights obligations apply extraterritorially. Kilovaty offers an innovative solution to this problem by advancing a notion of “virtual control,” that is, a distinctive form of control that can apply during certain cyber operations. When combined with an “effects-based” approach to extraterritoriality, Kilovaty’s modern gloss on the notion of control suggests that the right to self-determination (and other human rights obligations) may apply when a state engages in election interference on the territory of another state. So, for example, Russia might be responsible for violating human rights, even when acting outside of its borders, because it enjoys “virtual control” over the individuals that it targets. With this innovative proposal, Kilovaty brings debates over extraterritoriality into the twenty-first century.
In chapter 10, “The Dangers of Countermeasures as a Response to Cyber Election Interference,” Jacqueline Van De Velde focuses on the responses available to a state that has been subject to foreign election interference. Specifically, Van De Velde looks at the requirements under international law for using “countermeasures.” For example, after Russia interfered in the 2016 election, what countermeasures was the United States permitted to utilize in order to pressure Russia to stop meddling in future elections? Van De Velde notes that international law generally prohibits a state from using a countermeasure as a justification for the use of military force, which is generally only permitted under strict conditions (e.g., self-defense). Van De Velde concludes that the law of countermeasures must remain strictly construed as a nonforceful
15 See chapter 8, this volume, at 188.
16 Id. at 194.
response mechanism to prevent military situations from spiraling out of control. It would be a hollow victory if the price of stopping election interference was a new wave of military confrontations triggering armed conflicts and all the accompanying death and destruction. Consequently, Van De Velde rejects calls to change international law to make it easier for states to use the doctrine of countermeasures to justify military behavior in response to election interference deemed a use of force (but not an armed attack). In the absence of forcible, military countermeasures, she suggests that states need to resort to more traditional mechanisms to defend their democratic institutions. Like Chimène Keitner in her chapter, Van De Velde concludes with a call for the filing of more domestic criminal or civil cases regarding documented cases of election interference.
In chapter 11, “Election Interference: A Unique Harm Requiring Unique Solutions,” Jens David Ohlin seeks to identify the distinctive harm of election interference. As in past work, Ohlin argues that international law’s standard frameworks for evaluating election interference fail to adequately capture what is wrong with these information operations. Specifically, Ohlin suggests that cyberwar is a poor analogy for understanding the harm of election interference, because physical targets are not destroyed. Similarly, the legal principles of sovereignty and nonintervention are inapt because the harm of election interference is more political than territorial. Consequently, Ohlin argues that election interference should be regarded as a violation of the collective right of self-determination, that is, the right of a people to select their own destiny. In order to protect that right, and reduce the distortionary potential of information operations, Ohlin argues that the United States can and should enforce transparency regimes on the internet to identify foreign speech. Doing so would prevent foreign actors—such as Russian troll farms—from engaging in political speech while masquerading as Americans. For Ohlin, then, the unique harm of election interference pursued through social media is the infiltration and distortion of the deliberative process.
In addition to international legal responses, alternative frameworks exist for tackling the problem of foreign election interference—responses that rely less on the tools of international lawyers and more on tools commonly deployed by cybersecurity experts, social media companies, and information specialists. The international law literature on cyber-election interference is predisposed to focus on international law solutions; when you are a hammer, everything looks like a nail. However, in Part IV, “Combating Foreign Election Interference through Other Means,” we explore mechanisms other than international law to redress the foreign election interference problem set. These chapters do not purport to offer an exhaustive list of alternative responses, but rather embrace a diversity of approaches, including:
1. social media standards for taking down offensive content (with attendant risks to freedom of speech and other values);
2. the use of international relations theory to understand and anticipate how foreign actors may seek to undermine democracies in the future;
3. the use of cybernorms that are not codified in hard-law instruments but nonetheless promise to help constrain the use of cyberattacks in some circumstances; as well as
4. the use of campaign finance regulations as a tool for protecting elections from foreign interference.
To be clear, these alternatives are not mutually exclusive with international law’s responses, nor can they occur in a legal vacuum. Indeed, the last alternative emphasizes the power of an existing domestic regulatory regime in lieu of an international legal approach. Rather, Part IV offers candidates for combating foreign election interference that warrant analysis as possible supplements or substitutes for the extant international law. Taken together, these studies offer policymakers the potential to mix and match solutions to a problem set whose complexity and scale counsels against any single silver bullet solution.
In chapter 12, “The Free Speech Blind Spot: Foreign Election Interference on Social Media,” Evelyn Douek explores responses to election interference on social media and evaluates them against the backdrop of free speech norms. This inquiry is especially relevant because free speech norms—not just constitutional requirements but also more nebulous background values—were instrumental in the creation of internet culture, a place where anyone can say virtually anything without restriction. Douek argues that the removal of election interference material on social media implicates free speech norms in ways that the election law and cyberlaw literature has failed to grasp. Although Douek leaves open the possibility that, in some circumstances, removal and censorship of election interference speech on the internet might be proportional to the harm that it might otherwise cause, she concludes that basing such a decision on the basis of the “foreignness” of speech alone is misplaced and should be rare. In any event, her chapter demonstrates that proponents of censorship on social media have not come close to satisfying her standard for removing offending content. In addition, Douek complains that the need to police election interference speech has fallen to private firms—the operators of social media platforms—with the result that the public has not engaged in an adequate public dialogue regarding the nature and danger of censorship on the internet. Her chapter explains what private firms are doing, and not doing, regarding election interference—protocols that are largely opaque and not well publicized. The result is a cautionary narrative about solutions that may be worse than the underlying disease.
In chapter 13, “Foreign Election Interference and Open-Source Anarchy,” David P. Fidler studies foreign election interference through the lens of international relations (IR) theory. By surveying the four standard theories of realism, institutionalism, liberalism, and constructivism, Fidler concludes that none of them adequately explain the phenomenon of election interference and argues that new theories are required. Fidler is particularly interested in the concept of anarchy that plays a major role in neo-Hobbesian IR theories, particularly realism. Fidler argues that the nature of anarchy has changed with the advent of the digital age and is now best understood as a form of “open-source anarchy.” One function of this new form of anarchy is that “weaker” states are able to leverage information technologies to produce strategic outcomes, even though these states have less capacity when defined against traditional metrics, such as military power or economic resources. The result is more anarchy, and less structure, to international relations than in prior eras. Fidler concludes that his theory of open-source anarchy offers a theory that helps explain why, since 2016,
the United States has had difficulty “preventing, protecting against, and responding to foreign election interference,” and why therefore, it has struggled to achieve “effective defenses and credible deterrence, with the U.S. government resorting . . to offensive cyber operations to disrupt capabilities and preempt anticipated threats.”17
In chapter 14, “Defending Democracies via Cybernorms,” Duncan B. Hollis and Jan Neutze argue that the most prominent mechanisms for combating foreign election interference today—international law, domestic law, and technical measures—are inadequate to the threat posed. They proffer an additional regulatory tool—cybernorms (i.e., shared expectations of proper behavior for actors with a shared identity)—to add to the current menu of responses. Cybernorms could tell states what not to do vis-à-vis foreign elections or how to cooperate to help victims of such interference when it occurs. Hollis and Neutze concede that cybernorms are not a “salve for all wounds.” Just as the international legal order allows for existential and interpretative disputes that are not easily overcome given the law’s inherently consensual structure, cybernorms may do little to reign in rogue states that reject a shared identity while cybernorms’ social quality limits the availability of concrete “coercive” tools for their implementation. Nevertheless, Hollis and Neutze conclude that “[l]ike-minded states and other stakeholders have already begun to embrace the cybernorms project for foreign election interference” and that the adoption and internalization of cybernorms may be part of “a broad, multilayered and multidisciplinary response to the threat of foreign election interference.”18
In chapter 15, “Using Campaign Finance Reform to Protect U.S. Elections from ‘Dark Money’ and Foreign Influence,” Ian Vandewalker and Lawrence Norden argue that domestic campaign finance law might be used to help combat foreign election interference. Vandwalker and Norden note that campaign finance law has long banned foreign contributions, but they note the frustrating fact that many loopholes have allowed “dark money” from foreign sources to flow into American political campaigns. The authors argue that closing these loopholes will make a substantial contribution to ending foreign election interference, since foreign funding is one of the avenues through which that illicit interference occurs. For example, Russia spent substantial funds to operate social media troll farms under the aegis of the Internet Research Agency; enforcing a ban on foreign expenditures would help stop organized troll farm efforts that necessarily involve organized expenditures by foreign sources. Vandewalker and Norden propose specific reforms to update U.S. campaign finance regulations, including the expansion of rules regarding issue advertisements to include candidate “mentions” online, broader disclaimer requirements, the creation of a public database for internet political ads, and a requirement that advertisement sellers do more to block foreign purchases. The authors conclude with a major policy reform—a proposal for eliminating dark money in political campaigns. Taken together, their suggestions offer a policy and regulatory road map for updating campaign finance regulations for an era of organized social media disinformation.
Finally, in chapter 16, “Conclusion: An Outsider Looks In,” Herbert Lin reviews all the volume’s contributions and offers some concluding thoughts. He makes the
17 See chapter 13, this volume, at 311.
18 See chapter 14, this volume, at 316.
important point that understanding foreign election interference requires engagement with social cognition research. He uses it to challenge the idea among American political scholars that Russia’s 2016 election interference had no meaningful impact, noting that regardless of whether those operations tipped the election, they clearly undermined trust in U.S. electoral processes and its democratic project. For Lin, foreign election interference online is a new threat at a scale demanding new responses. He critically engages with many of the existing response proposals, including those favoring transparency, free speech, and autonomous bureaucratic efforts. Lin’s critiques, however, lead him to generate his own set of research questions. He lays out an agenda for further study, including: (1) the impact of social cognition on potential remedies to foreign election interference; (2) the disjunction and commonalities between foreign election interference and domestic politics; (3) possible further evolutions of international law to regulate foreign election interference; (4) the relationship between norms and customary international law; (5) the development of domestic norms against foreign election interference; and (6) business models to combat foreign election interference. Taken together, Lin’s conclusion shows the complexity and diversity of the foreign election interference problem as it exists in today’s digital age. His questions, moreover, reaffirm our original agenda. They help provide a foundation for research and regulatory responses to this critically important and rising threat matrix. Our ultimate goal remains—to offer those within the international legal discipline (as well as those, like Lin, from outside it) a launching pad for much needed further analysis, policy proposals, and legal reforms.
III. Future Directions
Thus, for all its conclusions, this volume remains, at its core, an opening salvo in the engagement of international law with the problem of foreign election interference. It does not aspire to fully and finally define that problem set nor the ways international law (or other regulatory approaches) may best respond to it. Our ambitions are more modest—to offer an initial, yet still in-depth, treatment of the subject from a variety of perspectives (e.g., historical, conceptual, comparative, legal, political, social); to explore international law’s potential (and problems) in regulating this area; and the availability of alternative or supplementary solutions. In doing so, we hope, like Herbert Lin, that our volume will not just offer some preliminary conclusions and ideas but also spawn further areas for research and dialogue. Looking across the contributions to this volume, for example, five future areas appear ripe for more attention: that is, the (1) cognitive; (2) informational; (3) domestic; (4) facilitative; and (5) responsive aspects of combating foreign election interference.
For starters, when we focus on foreign election interference, we assume that the behavior in question—the spread of misinformation, disinformation, and other aspects of an influence operation—has at least some potential to be effective. The concern with foreign election interference rests, at bottom, on the idea that when interference occurs, it risks changes to electoral outcomes or, more broadly, undermines trust (and thus the legitimacy and power) of democratic institutions. And certainly, history catalogs a number of examples, where one state has clearly interfered with—and
disrupted—the political will expressed by the people of another state.19 The question is how such risks translate into the digital age. Amid rising concern over online and social media “influence operations” by states and their proxies, we need more research on whether and when these campaigns can actually have cognitive impacts—whether changing minds or, more likely, increasing the motivation of actors to take additional actions from what they otherwise would have done (or forgo activities, like voting, they might otherwise have normally pursued). In short, we need to know whether particular influence mechanisms are highly likely to produce the desired cognitive outcomes. And, similarly, there is value in identifying operations that qualify as “empty noise” for which states (and their resources) need not devote much, if any, attention. Assessing the cognitive implications of interference campaigns, moreover, should not focus only on the actors who launch them. Attention must also be paid to intermediaries in traditional and social media who may, unwittingly, serve as “amplifiers” or “accelerants” to an influence operation, generating a desired impact that the original authors could not achieve on their own.
Second, international lawyers are not known for their fact-finding skills. Yet, as several chapters in this volume emphasize, there are large information gaps in the foreign election interference space. For example, several chapters offer competing views on whether discovering information about influence operations targeting elections is difficult (chapter 2) or inevitable (chapter 5). Other chapters question whether the problem is election interference itself or its foreign origins. More research is needed to determine which of the competing positions is more accurate than the other or if particular assertions are actually contingent on the context in which interference occurs (i.e., will the answer vary by the author of the influence operation or the state targeted?). However such questions are resolved, there remains a need for further information on what foreign election interference looks like. We must continue to uncover and catalog the various—and constantly evolving—means by which one state (and, in some cases, its proxies) attempt to intervene into the political processes of another.20 Nor are information gaps limited to actors with malicious intentions—as several contributors highlight, there is often a lack of transparency in how the social media platforms on which many campaigns depend respond to them (and the costs those responses incur on other values and interests). This lack of transparency extends, moreover, to states themselves, with a pronounced reluctance in the cyber
19 See, e.g., Peter Kornbluh, The Pinochet File: A Declassified Dossier on Atrocity and Accountability (2003) (historical account of U.S. interference in 1973 coup d’état in Chile); Stephen Kinzer, All the Shah’s Men: An American Coup and the Roots of Middle East Terror (2d ed. 2008) (historical account of U.S. interference in 1952 coup d’état in Iran).
20 There are already several productive examples of such efforts. See, e.g., Kristine Berzina & Etienne Soula, Conceptualizing Foreign Interference in Europe (Alliance for Security Democracies, Mar. 18, 2020), at https:// securingdemocracy.gmfus.org/ wp- content/ uploads/ 2020/ 03/ Conceptualizing- ForeignInterference-in-Europe.pdf; Laura Galante & Shaun Ee, Defining Russian Election Interference: An Analysis of Select 2014 to 2018 Cyber Enabled Incidents, Atlantic Council (2018), at https://www.atlanticcouncil. org/in-depth-research-reports/issue-brief/defining-russian-election-interference-an-analysis-of-select2014-to-2018-cyber-enabled-incidents/; Threat Activity Targeting Elections, FireEye (2019), at https:// www.fireeye.com/content/dam/fireeye-www/products/pdfs/pf/gov/eb-cyber-threat-activity.pdf
context to identify how they understand the application of international law, let alone actually citing violators publically when they occur.21
Much of this contemplated cognitive and data gathering research may not actually come from the international legal discipline. True, international lawyers are well suited to search (or call) for opinio juris, that is, state statements on the nature and scope of their legal obligations in cyberspace. In other areas, however, international lawyers may have less facility with identifying the underlying behavior of states or their proxies that is internationally wrongful. Yet, international lawyers clearly need such information. Identifying the existence of problematic behavior is a necessary prerequisite for crafting and evaluating appropriate responses, whether through international regulation or other means. This may mean, for example, that states will need to do more to declassify evidence they possess with respect to election interference that, to date, they often keep secret. Similarly, any ability to weigh the need for, and contributions of, domestic and/or international legal responses depends on the sufficiency and effectiveness of existing responses by the social media industry. More research may help, therefore, illuminate which, if any, response mechanisms may have the most value added.
In terms of value added, several contributions in this volume have contemplated a third future direction for dealing with foreign election interference—domestic law. It is worth considering whether and how states might do more with their sovereign prerogative—to prescribe and enforce criminal laws and to oversee a system for allocating civil liabilities—in the foreign election interference context. Although jurisdictional hurdles may hamper the ability of states to hold foreign individuals accountable if they operate outside the state’s territory or jurisdiction, domestic legal regimes are highly developed and experienced mechanisms for regulating human behavior. As such, even if foreign states themselves may have immunity from domestic suits, domestic law may still hold promise as a remedial device, particularly if research can unpack those tools most likely to be effective against different types of election interference.
The positive contributions domestic law might offer in the fight against foreign election interference also counsels in favor of a fourth, future direction for research relating to international law itself: further study and activity regarding its facilitative,
21 See, e.g., Dan Efrony & Yuval Shany, A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyber-Operations and Subsequent State Practice, 112 Am. J. Int’l L. 583, 594 (2018); Duncan B. Hollis & Martha Finnemore, Beyond Naming and Shaming: Accusations and International Law in Global Cybersecurity, 33 Eur. J. Int’l L (forthcoming 2020). Recently, however, a number of states have begun to make their views public in what may be a new trend toward transparency in setting the opinio juris for cyberspace. See Duncan B. Hollis, International Law and State Cyber Operations: Improving Transparency—Fifth Report, OEA/Ser.Q CJI/ doc. 615/20 rev.1 (Aug. 7, 2020); Ministère des Armées, Droit international appliqué aux operations dans le cyberspace (Sept. 9, 2019), at https://www.defense.gouv.fr/salle-de-presse/communiques/communiquesdu- ministere- des- armees/ communique_ la- france- s- engage- a- promouvoir- un- cyberespace- stablefonde-sur-la-confiance-et-le-respect-du-droit-international (French views); Letter from Minister of Foreign Affairs to President of the House of Representatives on the international legal order in cyberspace, July 5, 2019, Appendix 1, at https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-orderin-cyberspace (The Netherlands views); Jeremy Wright, QC, MP, Cyber and International Law in the 21st Century (May 23, 2018), at https://www.gov.uk/government/speeches/cyber-and-international-law-inthe-21st-century (U.K. views).
rather than prohibitory, functions. Certainly, international law regulates state behavior through various universal proscriptions, including the prohibition on the use of force, the principle of nonintervention, sovereignty, international human rights, and a peoples’ right to self-determination. And states and other stakeholders would be well served to continue to pursue greater transparency on whether and how those rules restrict states from engaging in activities involving foreign election interference. Yet, international law can do more than prohibit the behavior of states or those for whom a state bears international legal responsibility.22 International law may also operate to permit or facilitate behavior; to allow states to coordinate their efforts or even act collectively. States may agree, for example, in bilateral or plurilateral settings to mutual legal assistance and extradition regimes. The strength of those commitments could well improve the prospects for domestic legal responses to operate as intended. Thus, as international lawyers consider the future of the field vis-à-vis foreign election interference, it is important not to limit their work to the “big” questions about states’ general proscriptive obligations, but to consider the less visible ways in which international law may permit collective action or coordinate activity to deal with the threat at multiple levels and in multiple contexts.
The value of international law in facilitating collective behavior provides a bridge to a final future direction to highlight in combating foreign election interference— continued efforts to delineate response options tailored to the diverse and distinct situations in which democratic processes exist across the globe. As noted at the outset, lawyers tend to see solutions in exclusively legal terms. And as this volume explains, there is value in considering the general mechanisms domestic and international law contain to respond to unlawful forms of foreign election interference (e.g., domestic criminal indictments, suits sounding in civil liability, countermeasures, and other yet-to-be enacted or agreed legal remedies). Yet, as we have been careful to emphasize, nonlegal responses hold promise as well, such as the use of political agreement to foster cybernorms. The heterogeneity of the problem set counsels in favor of building out a “menu of remedies” for foreign election interference rather than depending on a single “hammer” or other tool set.
These pointers are, however, just suggestions. It is important to recognize that this volume does not hold a monopoly on good ideas. Further research can—and must— occur to identify various regulatory response to various manifestations of foreign election interference, drawing on legal and nonlegal traditions. Such research should hopefully do more than merely identify new options, but also develop methods to measure their efficacy—whether in improving a society’s resilience to foreign election interference or deterring it from occurring in the first place.
For nearly three centuries, democracies have become the preferred vehicle for avoiding the Hobbesian vision of life in a state of nature: “solitary, poor, nasty, brutish, and short.”23 The advent of the “Digital Age” has introduced tremendous new opportunities, tools, and techniques for advancing human existence and human dignity. At
22 See, e.g., Duncan B. Hollis, Re-Thinking the Boundaries of Law in Cyberspace: A Duty to Hack?, in Cyberwar: Law & Ethics for Virtual Conflicts (J. Ohlin et al. eds., 2015); Oona A. Hathaway et al., The Law of Cyber-Attack, 100 Cal. L.R. 817 (2012).
23 See generally Thomas Hobbes, Leviathan (J.C.A. Gaskin ed., 1996) (1651).
