Pirates of the Cyber Seas: Are State-Sponsored Hackers Modern-Day Privateers?
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UNSW Canberra
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Deakin University Australia
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University of Wollongong Australia
Abstract
Understanding the descriptors attached to cyber operations and cyber actors is crucial to communicating the nature of these entities and the influence they wield in cyberspace. Given the ever-increasing threat that corporations, governments, and the everyday consumer face from these entities, it is paramount that respondents evaluate and apply the most appropriate descriptors when communicating about such incidents. In this paper, we discuss whether a ‘privateer’ analogy has relevance in this space given the current state of cyber-actor behaviour and the increase in the number of governments relying on external experts to design, construct, and execute cyber-disruption operations.
In determining the appropriateness of the ‘privateer’ analogy, we explore the following questions:
- What types of labels are available for this private actor-perpetrated, but state-purposed cyber-operational conduct?
- Based on a brief history of privateering, how and why might privateering be an appropriate analogy?
- Given the strict legal paradigmatic constraints surrounding the availability of the concept and the availability of modern Law of Armed Combat (LoAC) concepts to cover the practice, how and why is privateering not an appropriate analogy?
Ultimately, we conclude that the applicability of the ‘privateering’ analogy in the context of cyber operations is dubious. It appears that international law has developed beyond the need (and desire) for privateers and privateering operations. In this discussion, we consider legal and regulatory alternatives for responding to cyber behaviour that may still resemble privateering under effective (and much more current) international law.
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Author Biographies
Josephine Helen Dwan is a PhD candidate with UNSW Canberra in the School of Humanities and Social Sciences. Her research focuses on the intersection of Australian law and technology. She received her Juris Doctor from Deakin University.
Tamsin Phillipa Paige is a Senior Lecturer with Deakin Law School and periodically consults for the UN Office on Drugs and Crime in relation to Maritime Crime. Her work is interdisciplinary in nature, using qualitative sociological methods to analyse international law. She also does law and literature research using popular fiction to understand social perceptions of the law. Her work has examined (among other things) Somali piracy, UN Security Council decision making, and conflict based sexual violence. In a former life, she was a French trained, fine dining pâtissier.
Professor Rob McLaughlin is Professor of International Law at the Australian National Centre for Oceans Resources and Security, Senior Fellow at the Stockton Centre for International Law at the US Naval War College, and Honorary Professor at the Australian National University.
