Cyber Espionage

Abstract

The disclosures by whistleblower Edward Snowden starting from mid-2013 onward about alleged widespread cyber espionage against individuals, corporations, States, and international organizations across the globe have led to serious concerns and international reactions vis-à-vis this kind of activity. This chapter analyzes whether cyber espionage is permitted under international law and, if so, to what extent. Limits on cyber espionage set by the various branches of international law, such as the international law applicable to diplomatic and consular relations and the international law of the sea are elaborated. The meaning of the relevant rules (such as inviolability of the premises and archives of a diplomatic mission, an international organization, or a special mission in the cyber context) is explained in detail. The justification for the distinction between an “offensive intelligence gathering activity” involving destruction or manipulation of data, on the one hand, and a “passive intelligence gathering activity” in the sense of merely copying the data without authorization without more, on the other hand, is analyzed. So is the justification for the distinction between a commercial/industrial espionage and a non-commercial/industrial one.