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Covert Deception, Strategic Fraud, and the Rule of Prohibited Intervention

Gary Corn
Thursday, September 24, 2020, 12:15 PM

Published by The Lawfare Institute
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If information is power, then the corruption of information is the erosion, if not the outright usurpation, of power. This is especially true in the information age, where developments in the technological structure and global interconnectedness of information and telecommunications infrastructure have enabled states to engage in malicious influence campaigns at an unprecedented scope, scale, depth, and speed. The Digital Revolution and the attendant evolution of the global information environment have intensified, if not generated, what one expert describes as “one of the greatest vulnerabilities we as individuals and as a society must learn to deal with.” The relative explosion of digital information and communications technology (ICT) and the modern information environment it has enabled “have resulted in a qualitatively new landscape of influence operations, persuasion, and, more generally, mass manipulation.”

As evidenced by Russia’s ongoing efforts at election interference in the United States and Europe, the role of information conflict in global strategic competition has evolved and taken on new weight. A number of revisionist states, Russia and China chief among them, have fully embraced the new reality of the modern information environment, deftly adapting their capabilities and strategies to exploit the societal vulnerabilities it exposes. They have incorporated sustained, hostile influence campaigns as a central part of their destabilizing strategies to cause or exacerbate societal divisions, disrupt political processes, weaken democratic institutions, and fracture alliances, all with a broader aim of undermining the rules-based international order and gaining competitive advantage.

The anchor for these campaigns is the extensive and deep use of ICTs to conduct covert deception and disinformation operations at an extraordinary scale. Deployed at a strategic level, malign influence and disinformation operations have the very real potential to undermine and disrupt a targeted state’s independent exercise of core governance prerogatives. Along with the advent of hostile cyber operations, these ICT-enhanced deception campaigns have raised challenging questions about whether and how international law applies to these novel state interactions.

This paper contends that the customary international law prohibition against intervening in the internal and external affairs of another state provides an important yet underdeveloped legal tool to help address these threats. It considers the rule’s applicability to the murky and evolving landscape of information conflict and argues for an interpretation of the non-intervention rule better suited to the realities of the information age, where strategic covert deception and disinformation campaigns are being deployed at an unprecedented scale to subvert states’ free will over their political, electoral, and public policy prerogatives. First, it explains the scope and global scale of the covert deception and disinformation problem. The paper then walks through the international law rule of prohibited intervention, the sovereign interests it shields, and the ill-defined concept of coercion that has evolved to demarcate the line between legitimate influence and internationally wrongful intervention. Outside of the cyber context, the law frequently regulates deception either directly in the form of fraud-based proscriptions, or indirectly by making deception a constructive substitute for force or coercion elements of other crimes. These are foundational precepts that should inform states’ understanding and application of the non-intervention rule in the fast-evolving context of cyber and information conflict. The paper concludes by evaluating how to apply this understanding of nonintervention and reflecting on the role of international law in maintaining a rules-based international order in the information age.

Gary Corn is the director of the Technology, Law & Security Program and adjunct professor of cyber and national security law at American University Washington College of Law; a senior fellow in national security and cybersecurity at the R Street Institute; a member of the editorial board of the Georgetown Journal of National Security Law and Policy, and the founder and principal of Jus Novus Consulting, LLC. A retired U.S. Army colonel, Corn previously served as the staff judge advocate to U.S. Cyber Command, as a deputy legal counsel to the chairman of the Joint Chiefs of Staff, the operational law branch chief in the Office of the Judge Advocate General of the Army, the staff judge advocate to United States Army South, on detail as a special assistant United States attorney with the United States Attorney’s Office for the District of Columbia, and on deployment to the former Yugoslav republic of Macedonia as part of the United Nations Preventive Deployment Force and as the chief of International Law for Combined Forces Command, Afghanistan.

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