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10 J. Nat'l Sec. L. & Pol'y 525 (2019-2020)
Persistent Enforcement: Criminal Charges as a Response to Nation-State Malicious Cyber Activity

handle is hein.journals/jnatselp10 and id is 540 raw text is: Persistent Enforcement: Criminal Charges as a Response to Nation-State Malicious Cyber Activity Garrett Hinck & Tim Maurer* INTRODUCTION The question of how states attribute responsibility for malicious cyber activity to other state actors has provoked much attention from both policymakers and scholars.1 Yet one approach to this problem has not been analyzed in depth: the use of criminal charges to allege or suggest state responsibility for cyber inci- dents. The United States has increasingly used this instrument since 2014. Its Department of Justice in fact adopted an explicit goal of bringing charges against foreign actors responsible for cyber activity.2 Federal prosecutors have unsealed a series of indictments and criminal charges against Chinese intelligence officers involved in the theft of intellectual property and Iranian and North Korean indi- viduals who carried out destructive cyber attacks on behalf of their governments. This also includes charges against Russian intelligence officers alleged to have interfered in the 2016 U.S. election. This increasing number of criminal charges raises several important questions: What are the goals of these criminal charges, especially those against foreign intelligence officers unlikely ever to be arrested by U.S. law enforcement? Are criminal charges merely a more formal approach to alleging state responsibility than leaking statements from senior administration officials to the media about cyber threats from other states? And how should this strategy of bringing criminal charges be evaluated in the context of broader U.S. policy efforts to combat mali- cious cyber activity? How does it interact with the Justice Department's stance of independence from political considerations? The U.S. first publicly brought criminal charges that explicitly alleged that a foreign state played a role in malicious cyber activity in 2014, with charges against five officers in the Chinese People's Liberation Army (PLA) for stealing intellec- tual property (IP) from a number of U.S. companies, including Westinghouse, * Garrett Hinck is a researcher at the Carnegie Endowment for International Peace working on nuclear and cybersecurity policy. Tim Maurer is Co-director of the Cyber Policy Initiative at the Carnegie Endowment for International Peace. In 2018, Cambridge University Press published his book, Cyber Mercenaries: The State, Hackers, and Power, a comprehensive analysis examining proxy relationships between states and hackers. © 2020, Garrett Hinck & Tim Maurer. The authors wish to thank Jon Bateman, Michael Daniel, Martha Finnemore, Jonah Hill, Duncan Hollis, Matthew Noyes, officials at the U.S. Department of Justice's National Security Division, and the experts at the workshop organized by Third Way's Cyber Enforcement Initiative for providing invaluable comments and feedback on this article. 1. Scott J. Shackelford & Richard B. Andres, State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, 42 GEO. J. INT'L L. 971, 974 (2011). 2. See Adam Hickey, senior Dep't of Justice official, Remarks at CyberNext DC (Oct. 4, 2018), https://perma.cc/5FQX-MT5G.

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