On Lawfare Timothy Edgar compares and contrasts the Mueller indictment of the Internet Research Agency with a previous indictment of Chinese PLA (Army) officers for hacking into U.S. companies for purposes of stealing intellectual property, an indictment of which Edgar approved in both theory and handling by the Obama Administration:
The Chinese ultimately decided to forgo issuing retaliatory indictments in favor of diplomacy. No one went to jail, but the U.S. indictments worked: China and the United States eventually agreed that neither side would “conduct or knowingly support cyber-enabled theft of intellectual property.”
But there are two big differences that will make such a happy outcome much more difficult in the case of the Russian hackers. First, the issue of interference in the U.S. presidential election of 2016 is more significant than theft of intellectual property by Chinese hackers. Russia’s interference implicates both U.S. sovereignty and ideals that are at the core of American identity. The fact that the Russian campaign was directed against such vital national security interests weighs in favor of a very tough response by the United States.
Second—and more problematic, from the U.S. point of view—is that the United States is on weaker ground when it comes to international norms in this case than it was in the case of the Chinese hackers. In the latter instance, the Obama administration argued that the theft of intellectual property is distinct from the work of the NSA and other U.S. intelligence agencies. Articulating this principle put the U.S. on a firm footing in discussions with the Chinese. It helped that President Obama had issued Presidential Policy Directive 28 just months before the indictment of the Chinese hackers, which explicitly banned corporate espionage by the U.S. intelligence community.
Much like my evaluation of the recent indictments, Edgar doesn’t see it as a threat so much as a discussion starting point:
But the indictment does serve a useful purpose. It sends a warning—not to Putin, but to Americans. The U.S. government can’t control what Putin does by issuing indictments. But Americans can—and must—do a whole lot more to defend ourselves against foreign interference in our elections. We can start by 1) encrypting our communications and data; 2) securing our election infrastructure; and 3) working with social media companies to combat “fake news” by exposing state-sponsored trolls. This threat is not going away any time soon.
And yet, here’s how I think this should really work out.
- The President sends a diplomatic note to the Russians requesting immediate extradition.
- The Russians reply with a suitably snarky No.
- The sunny reply to that is, We’re pleased you have agreed to our request, and the entire United States 5th Fleet will be coming to the port of Vladivostok in order to place them under arrest. Your cooperation will be appreciated. We’ll send in an LST for the actual pickup.
Sure, it’s lurid and ridiculous. It also amuses me greatly. And you just know Theodore Roosevelt would have done it.
