What the DNC Hack Could Mean for Democracy

Analysts largely agree that the hacking of various arms of the Democratic Party, and the release of hacked emails that deepened divisions within the party just ahead of its presidential convention, is a big deal. But there’s less agreement about whether what we’re witnessing is fundamentally old or new. The answer to that question could shape not just the Obama administration’s response to the hack, but international norms on the limits to foreign influence in democratic elections.

Put simply: If, as some reckon, Russian intelligence agencies spied on the Democratic Party and then shared looted documents with WikiLeaks in order to intervene in the U.S. election, can that be tolerated? 

So far, only anonymous U.S. officials and private cybersecurity companies have designated Russia as the prime suspect in the hack. The U.S. government has yet to publicly accuse the Russian government of orchestrating the breach, let alone the leaks, and Russian officials have denied any involvement in the episode. Nevertheless, some argue that the Kremlin appears to have merely extended to America areinvented Soviet tactic that it has deployed for years at home and across Europe: Using a variety of measures—including the collection and dissemination of compromising information and disinformation—to meddle in politics, discredit the political systems of rival countries, and sow doubt, discord, and disarray. Analternative interpretation is that Russia is “crossing a big red line and setting a dangerous precedent: an authoritarian country directly yet covertly trying to sabotage an American election.” Still others point out that there’s a long history of countries, including Russia and the United States, secretly seeking to influence elections and public opinion abroad, particularly during the Cold War. Often these efforts are overt, even routine; in many cases they stop short of explicitly picking sides (think of Angela Merkel praising Hillary Clinton), and in some they don’t (think of Barack Obama’s plea for Britain to remain in the European Union).

As U.S. authorities investigate who was behind the hack, legal scholars and cybersecurity experts have been scrambling to sort the old from the new. Jack Goldsmith, a Harvard Law professor and former George W. Bush administration official, says there’s something novel about the mechanisms and scale of the intervention, in that it seems to have involved not just cyber operations, but also partnering with a third-party organization to publish a massive amount of data. That last step is what made ordinary espionage extraordinary—and what potentially invites more ambitious interventions in American democracy in the future. The U.S. government, he fears, may be unprepared for the onslaught:

The combination of pilfering sensitive information and then “weaponiz[ing] Wikileaks” or some similar organization will surely recur. … Foreign governments could “hack a voting machine,” “shut down the voting system or election agencies,” “delete or change election records,” “hijack a candidate’s website,” “dox a candidate,” “and target campaign donors.” …

The Russian hack of the [Democratic National Committee] was small beans compared to the destruction of the integrity of a national election result. … Election fraud is typically the responsibility of election officials working with law-enforcement officials. But when election fraud with national consequences is potentially threatened by foreign adversaries, it should become the responsibility of (at a minimum) national intelligence officials. But are they on this problem? Does the United States government have a well-worked out plan to ensure that our highly computerized and highly decentralized system for electing the President is protected from foreign disruption via cyber-exploitation or cyber-attack?

The operation, he adds, may also feel new, even if that’s not actually so, because of the context in which it’s occurring. “It seems different because it involves manipulation of an American election,” Goldsmith writes. “And it seems different because of the suggestion that a presidential candidate of one U.S. party, [Donald Trump], might be working with—or at least supportive of—a major foreign adversary’s efforts to covertly damage the rival presidential candidate.”  

As for whether the hack poses new legal challenges, Goldsmith notes that while cyber-theft violates U.S. law, many countries—with the United States in the lead—similarly defy domestic law in other countries when conducting cyber-espionage abroad.

International law is murkier. Cyber-conflict is a relatively lawless frontier of foreign relations. Over the last half century or so, an international norm of non-intervention in a country’s internal affairs has emerged, according to Lori Fisler Damrosch, a professor of international law and diplomacy at Columbia University. But the norm is clearer in the case of, say, one country using military force to alter another country’s borders or independence than in cases where the methods used to interfere in a country’s ability to make its own choices aren’t obviously coercive.

“There was long ago a crystallization of this idea that forcible intervention in other countries’ affairs was prohibited by customary international law and by treaty law,” Damrosch told me. “It follows almost like a syllogism that non-forcible techniques that are equally intrusive should be equally prohibited. But because those techniques are so diffuse, it’s much harder to see any bright lines.”

If foreign hackers release documents that damage a political party during an election, is that a violation of the norm of non-intervention? It’s difficult to say, particularly since it’s very hard to attribute cyber-attacks with anything approaching certainty to a government, or to ascribe clear motives to the attackers.