The 2019 National Defense Authorization Act: Cyber Countermeasures as a Framework for Proportionality Beneath the Armed Attack Threshold

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Cyber operations are an increasingly ubiquitous mechanism for the conduct of statecraft, espionage, and warfare. Russian interference in American elections is one recent and prominent example of cyber interference. The John McCain National Defense Authorization Act (NDAA) for fiscal year 2019 includes several provisions on cyber operations, specifically addressing threats such as interference with elections. Section 1642 of the NDAA pre-authorizes the National Command Authority (the President and Secretary of Defense) to direct the U.S. Cyber Command “to take appropriate and proportional action in foreign cyberspace to disrupt, defeat, and deter such attacks” (emphasis added) in response to “an active, systematic, and ongoing campaign of attacks against the Government or people of the United States in cyberspace, including attempting to influence American elections and democratic political processes” conducted by Russia, China, Iran, or North Korea. However, proportionality in response to attempts to “influence American elections and democratic political processes” is unclear at this stage. In the context of cyber operations not crossing the armed attack threshold, proportionality is especially amorphous. For example, Russian election interference falls short of the armed attack threshold permitting the use of force in self-defense; however, election interference likely constitutes an “internationally wrongful act”—legally permitting U.S. countermeasures against Russia. The following explores the viability of countermeasures as a rubric for responses to cyber operations below the use of force threshold. Countermeasures are measures taken in response to an instigating state’s internationally illegal act, wherein the injured state takes an action that would otherwise violate an international legal obligation, the aim of which is to compel or convince the instigating state to stop its illegal behavior....