CENTER FOR ETHICS AND THE RULE OF LAW​

Democracy In The Crosshairs

Cyber Interference, Dark Money And Foreign Influence

November 1 -
 3, 2018

Co-sponsored By:

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The Conference

International law has long recognized that some infringements of another state’s sovereignty are sufficiently grave as to constitute a violation of international law, if not a casus belli. Recent cases of election interference, however, have more publicly exposed the uncertainty over the application of the general principle of non-intervention and whether attacks against democratic institutions would violate international law. Consider, for example, a cyber-attack from a foreign state that compromises the voting machines used during a democratic election. Contrast that cyber-attack with so-called “information warfare” that might involve the hacking of private correspondence and releasing it publicly via Wikileaks, or the use of social media and troll farms to spread disinformation and fake news. Add to this scenario large amounts of untraceable, illicit money transfers between an array of state and non-state actors intended to support these influence operations while making reliable legal or political attribution severely complicated. Do these infringements on the political process violate international law and if so, what should the necessary legal and political responses be?

There are a variety of legal considerations that must be addressed when answering these questions. Hacking and disclosure of private information might violate what many believe to be an international right to privacy, which is recognized by international human rights law (IHRL) but not upheld by U.S. courts. Also, the sovereign right to independence from any and all interference affirms that a nation has a right to conduct an election, without outside interference, in order to express its political will and create a representative government. Is it possible to determine, however, if and at what point acts of interference amount to a violation of sovereignty—or beyond that, an act of war? Finally, the laws of war arguably constrain some cyber-attacks, although only those that are sufficiently destructive to fall under that paradigm—cyber-based interference and disinformation campaigns do not cause physical damage, but they have sufficient power to destroy the legitimacy of an institution without the need for physical force. If acts of interference remain below the threshold of war, what mechanisms are available for objecting to clear violations of sovereignty as a result of foreign interference?

Even assuming that foreign interference in a democratic election is unlawful, there is then the added question of what actions a state might take in defense of its institutions. The traditional toolkit for international lawyers include retorsions and counter-measures. Are these the appropriate responses when a state is faced with information warfare? It may well be that foreign interference, like espionage and covert military operations, have become expected aspects of geopolitics requiring active counter-measures but which cannot be entirely prevented or deterred. Can the idea of an independent, insular election, confined to a single polity, be defended, or is it a relic of the past?

The conference will focus on these key themes:

  • The historical roots of foreign interference
  • Patterns of interference in domestic and foreign elections
  • The legal status of cyber-based foreign interference
  • Foreign Interference in the midterm elections
  • The role of dark money in U.S and European elections 
  • The future of information warfare: warfare as we know it? Or a weaponization of information and free speech and free press principles

Attendance at the non-keynote sessions of this conference is by invitation only.

There are two sessions open to the public.
Please see the “Keynote” page for more information. 

Schedule

Thursday, November 1, 2018

At the University of Pennsylvania Law School

4:30 pm – 6:00 pmPublic Keynote Address (Haaga Lecture): “Russian New Generation Warfare and the Threat to the Free World” by Lieutenant General H.R. McMaster, U.S. Army, Ret., former National Security Advisor, and Perry World House Distinguished Visiting FellowModerated by Professor Claire Finkelstein This event will take place at Penn Law in the Michael Fitts Auditorium

Friday, November 2, 2018

Unless otherwise indicated, all events will be held at the National Constitution Center in Philadelphia

8:30 am – 9:30 amSign-In and Continental Breakfast – John C. Bogle Chairman’s Room
9:30 am – 9:45 amWelcome Remarks
9:45 am – 11:00 amSession 1—Historical Roots of Foreign Interference: The Framers and Their Efforts to Secure Democratic Independence
Moderator: Professor Stanley KatzConcern over foreign interference in domestic institutions has deep roots in the history of liberal democracy. In the American context, the founding fathers held a deep regard for the dangers posed by foreign actors wishing to interfere in the domestic institutions of the young republic. To that end, the Constitution of the United States contained specific provisions that sought to ensure that the institutions which it set up would be protected from unwanted outside interference. The laws and regulations which followed the Constitution reflect this deep-seated aversion to foreign interference.This session will discuss the historical roots of foreign interference and the foundations put in place to protect domestic institutions from foreign interference. The objective of this session is to unpack the intentions of the founding fathers and to place these intentions and their aversion to foreign interference in the context of contemporary political institutions.
11:00 am – 11:30 amBreak
11:30 am – 12:45 pmSession 2—Patterns of Disinformation in Domestic and Foreign Elections
Moderator: Professor Mitch OrensteinRecent elections throughout the world have been subjected to overt and covert foreign interference operations. These operations have been conducted by traditional state actors and by non-state actors who may or may not receive material support or operational direction from a state sponsor. These foreign disinformation campaigns have exploited all domains of political, financial, and societal interaction. Their intent is often to damage and/or destroy the credibility and/or stability of the democratic processes they target. In some of the more notorious instances, it may be argued that these foreign disinformation campaigns have even sought to achieve a particular electoral outcome.What patterns have emerged within the conduct of foreign disinformation and interference campaigns? The increasing importance of technology, social media, and digital media has changed the face of information warfare, whereby these everyday aspects of modern society act as a force multiplier significantly increasing the ease with which a foreign entity can influence an electoral process. The difference, however, between these modern operations and their predecessors may be less than they are the same. Drawing on the history of foreign interference, what lessons can be applied to current foreign attempts to influence the democratic electoral processes?
12:45 pm – 2:00 pmLunch – Delegates Dining Room
2:00 pm – 3:15 pmSession 3— Cyber-Based Foreign Interference
Moderator: Professor Michael PosnerCybersecurity and cyberwarfare have become increasingly relevant in recent years.  In democratic elections, attention has focused on a spate of hacking attacks that seek to embarrass and undermine candidates, political parties, and institutions by stealing, manipulating, and releasing damaging material timed with the election cycle. Moreover, state and non-state political actors have taken to social media and digital news media outlets to create and disseminate fictitious or augmented stories intended to drive a particular political or cultural narrative. One could also see these acts as an attempt to electronically disrupt vital infrastructure, when infrastructure is defined widely to include the necessary political infrastructure for a country to function.  In that regard, what we are seeing in democratic elections may represent an exploitation of technology that amounts to an act of war under international law.This discussion will seek to understand foreign interference in democratic institutions in the context of the existing laws and norms governing international conflict and cybersecurity. One of the major questions at hand is at what point does an act of foreign interference amount to an act of war? Lawyers, politicians, and strategists alike have struggled with this question in the context of deliberate cyberattacks but have been similarly unable to come to a consensus. Is it possible to reconcile existing laws and norms with the advent of cyber-based foreign interference, or will new laws and institutions be required in order to curtail unwanted interference?
3:15 pm – 4:00 pmBreak
4:00 pm – 6:00 pmPublic Keynote Panel—”Foreign Interference in the Democratic Process: Countdown to the Midterms”
Moderator: Trudy Rubin. Panelists: Mr. Clint WattsMr. Raymond BakerMr. Shawn TurnerProfessor Mitchell Orenstein and other distinguished guests This event will take place in the F.M. Kirby Auditorium of the National Constitution Center.  

Click here to access WHYY’s audio recording of the public keynote panel
6:00 pm – 7:00 pmReception – The Monaco Hotel – Rooftop, Vapor Pavillion
7:00 pm – 8:30 pmParticipant Dinner – The Monaco Hotel – Lafayette North, BallroomKeynote presentation by Dean Elizabeth Rindskopf Parker

Saturday, November 3, 2018

8:30 am – 9:30 amSign-In and Continental Breakfast – John C. Bogle Chairman’s Room 
9:30 am – 10:45 amSession 4—Dark Money: Domestic Regulation, Transnational Law Enforcement, and the Political Philosophy Protecting Democratic Processes
Moderator: Professor Eric OrtsA major piece of foreign influence on democratic elections comes through money.  Most countries have laws that prevent foreign entities from contributing to election campaigns.  This is done to ensure that elections reflect domestic preferences and concerns, rather than international geopolitics.  Yet, foreign money continues to be directed toward campaigns in an unregulated fashion.  The expansion of “dark money” in U.S. elections and abroad has made this more prevalent, since the international financial infrastructure creates many opportunities for secretive transfers of funds.  The inability of transnational and domestic law enforcement agencies to root out money laundering has allowed illegal foreign financing to proliferate while potentially having a significant impact on several high-stakes domestic elections.This session will address the ways in which the impact of dark money in democratic elections may be curtailed or even eliminated through domestic and international law, financial regulations, and comprehensive monitoring. The session will be framed by a discussion of the political philosophy that continues to support the laws and norms put in place to protect the independence of democratic institutions.
10:45 am – 11:15 amBreak
11:15 am – 12:30 pmSession 5 – The 2018 Midterm Elections: Will They Be Free and Fair?
Moderator: Mr. Shawn TurnerIt is the unanimous opinion of the U.S. intelligence community that Russia interfered in the 2016 presidential election. While there is some debate about Russia’s motives and the extent to which their efforts affected the outcome of the election, there is no debate that foreign adversaries used various means to interfere with the 2016 presidential election. In the two years since the 2016 election, there have been reports that Russia, China, Iran, and North Korea have all taken steps to influence the 2018 midterm elections. Since 2016 the government and private sector have taken steps to prevent continued foreign interference in our elections. The House and Senate Intelligence Committees each launched investigations of foreign election interference. In September 2018, the President issued an executive order authorizing sanctions of foreign governments that interfere with U.S. elections. Social media and tech companies have made public disclosures about disinformation campaigns and foreign cyberattacks and have pledged to take a more active role monitoring their platforms for foreign interference.Has the response of the government and private sector been adequate to protect the integrity of the midterm elections? What additional steps are needed to ensure that future U.S. elections are protected against foreign influence? 
12:30 pm – 1:45 pmLunch – Bogle TerraceKeynote Presentation by Professor Richard Harknett
1:45 pm – 3:00 pmSession 6— The Long-term Game: What is the Future of Information Warfare, Political Cyber-Interference and Can Democracy Prevail?
Moderator: Professor Claire FinkelsteinInformation warfare is one of the most visible elements of foreign influence campaigns targeting democratic institutions. It is also the oldest. On the one hand, state actors and their state-sponsored clients are responsible for creating and disseminating false or misleading information under the guise of legitimate public discourse or news reporting. These operations may take place on social media, the internet, or even through more traditional mediums. The influence of these operations is exponentially increased when their products are picked up by legitimate news outlets which then rebroadcast or republish information they do not know to be false.To this end, foreign interference campaigns co-opt the liberal democratic principles of free speech and the freedom of the press to spread their disinformation. On the one hand, democracies are unable to suppress the secondary dissemination of disinformation by their own citizens at the risk of infringing on the individual’s freedom of speech. On the other hand, democracies are similarly unable to suppress the redistribution of disinformation by legitimate news outlets which unwittingly support a foreign actor’s interference operations. The architects of foreign disinformation campaigns are aware of these constraints and endeavor to exploit the very freedoms that democracies enshrine. What methods, if any, can democracies take to prevent or oppose information warfare from unfriendly states?

All events will be held at the National Constitution Center in Philadelphia

Participants

Background Readings

Session 1—Historical Roots of Foreign Interference: The Framers’ and Their Efforts to Secure Democratic Independence

Peter Beinart, The U.S. Needs to Face Up to Its Long History of Election Meddling, The Atlantic (July 22, 2018)

Jason Daley, Notes Indicate Nixon Interfered With 1968 Peace Talks, Smithsonian Magazine, (January 2, 2017)

Dov Levin, When the Great Power Gets a Vote: The Effects of Great Power Electoral Interventions on Election Results, International Studies Quarterly. (2016)

Ishaan Tharoor, The Long History of the U.S. Interfering with Elections Elsewhere,  The Washington Post (Oct. 13th, 2016)

Steve Usdin, When a Foreign Government Interfered in a U.S. Election – to Reelect F.D.R. Politico (January 16, 2017)

Calder Walton, Active Measures”: a History of Russian Interference in U.S. Elections, Prospect (December 23, 2016)

Session 2—Patterns of Interference in Domestic and Foreign Elections

Paul M. Barrett, Tara Wadhwa and Dorothee Baumann-Pauly, Combating Russian Disinformation: The Case for Stepping Up the Fight Online, NYU Stern Center for Business and Human Rights (Jul. 23rd, 2016)

Philip Bump, What data on more than 3,500 Russian Facebook ads reveals about the interference effort, The Washington Post (May 10th,2018)

Carole Cadwalldr and Stephanie Kirchgaessner, Cambridge Analytica director ‘met Assange to discuss US election’, The Guardian (Jun. 7th, 2018)

Jolanta Darczewska, The Devil is in the Details: Information warfare in the Light of Military Doctrine, Centre for Eastern Studies (May 2015)

Jennifer Forestal, The Architecture of Political Spaces: Trolls, Digital Media, and Deweyan Democracy, 111 (1) American Political Science Review, 149 (2017)

Tarlach McGonagle, Fake news: False fears or real concerns?, 35(4) Netherlands Quarterly of Human Rights 203 (2017)

Declan Murphy, The Fourth Estate Under Siege, Fordham Political Review (Mar. 8th, 2017)

Timothy Thomas, Russia’s Information Warfare Strategy: Can the Nation Cope in Future Conflicts?, 27(1) The Journal of Slavic Military Studies 101 (2014) 

Session 3—Cyber-Based Foreign Interference

Cynthia E. Ayers, Rethinking Sovereignty in the context of cyberspace: The Cyberspace Workshop Series, Center for Strategic Leadership – United States Army War College (Dec. 2016)

Patrick Franzese, Sovereignty in Cyberspace; Can it Exist?, 64 (1) Air Force Law Review 1 (2009)

Alex Grigsby, The End of Cyber Norms, 59(6) Survival 109 (2017)

Oona A. Hathaway et al., The Law of Cyber-Attack, 100(4) California Law Review 817 (2012)

Susan Landau, Listening In: Cybersecurity in an Insecure Age. (2017)

Mary Ellen O’Connell, Cyber Security without Cyber War, 17 Journal of Conflict and Security Law 187 (2012)

Mary Ellen O’Connell and Louise Arimatsu, Cyber Security and International Law, International Law: Meeting Summary at Chatham House (May 29th,2012) 

Jens David Ohlin, Did Russian Cyber-Interference in the 2016 Election Violate International Law?, Cornell Legal Studies Research Paper No. 17-15 (Mar. 16th, 2017)

Evan Osnos, David Remnick, and Joshua Yaffa, Trump, Putin, and the New Cold War, The New Yorker (March 6, 2017)

William Alan Reinsch, A Data Localization Free-for-All?, Center for Strategic and International Studies (CSIS) (Mar. 9th, 2018)

Michael N. Schmitt, Grey Zones in the International Law of Cyberspace, 42(2) Yale Journal of International Law 1 (2017)

Delbert Tran, The Law of Attribution: Rules for Attributing the Source of a Cyber-Attack,  20 Yale Journal of Law and Technology 376 (2018)

Jacqueline Van De Velde, The Law of Cyber Interference in Elections, SSRN (May 15th, 2017)

James Van De Valde, Why Cyber Norms Are Dumb and Advance Russian Interests, The Cipher Brief (Jun. 6th, 2016)

Session 4—Dark Money: Domestic Regulation, Transnational Law Enforcement, and the Political Philosophy Protecting Democratic Processes

Ramond Baker, Capitalism’s Achilles Heel: Dirty Money and How to Renew the Free-Market System (2005)

Matt Burgess, Now Facebook’s Russian Advert Crisis is Turning Towards Brexit, Wired UK (Nov. 1st, 2017)

Matt Burgess, Where the UK’s Investigations into Russia’s Brexit Meddling Stand, Wired UK (Jan. 30th, 2018)

Carole Cadwalladr, Vote Leave donations: the dark ads, the mystery ‘letter’ – and Brexit’s online guru, The Guardian (Nov. 25th, 2017)

Stacy Cowley, Banks Adopt Military-Style Tactics to Fight Cybercrime, New York Times (May 20th, 2018)

Alan Ehrenhalt, Dark Money,’ by Jane Mayer, New York Times (Jan. 19th, 2016)

Lee Fang, Chinese State-owned Chemical Firm Joins Dark Money Group Pouring Cash Into U.S. Elections, The Intercept (Feb. 15th, 2018)

Tim Mak, NRA, In New Document, Acknowledges More Than 20 Russian-Linked Contributors, NPR (Apr. 11th, 2018)

Session 5—The 2018 Midterm Elections: Will They Be Free and Fair?

Sheera Frenkel & Matthew Rosenberg, Top Tech Companies met with Intelligence Officials to Discuss Midterms, The New York Times. (June 25, 2018).

Adam Goldman, Justice Department Accuses Russian of Interfering in Midterm Elections, The New York Times (October 19, 2018)

Joseph Menn & Paresh Dave, Facebook says it identifies campaign to meddle in 2018 U.S. Elections, Reuters (July 31, 2018)

Session 6—The Long-term Game: What is the Future of Information Warfare, Political Cyber-Interference and Can Democracy Prevail?

Katrin Bennhold, Germany Acts to Tame Facebook, Learning From Its Own History of Hate, New York Times (May 19th, 2018)

European Commission, Tackling Online Disinformation: A European Approach, Communication from the Commission to the European Parliament, The Council, the European Economic and Social Committee, and the Committee of the Regions (Apr. 26th, 2018)

Marc H. Greenberg,  A Return to Lilliput: The LICRA v. Yahoo – Case and the Regulation of Online Content in the World Market, 18(4) Berkeley Technology Law Journal 1191 (2003)

Heather Conley, Jean-Baptiste Jeangène Vilmer, Successfully Countering Russian Electoral Interference, Center for Strategic and International Studies (CSIS) (Jun. 21st, 2018)

Daphne Keller, Internet Platforms: Observations on Speech, Danger, and Money Hoover Institution (Jun. 13th, 2018)

William P. Marshall, False Campaign Speech and the First Amendment, 153(1) University of Pennsylvania Law Review 285 (2004)

Ciara Nugent, France is Voting on a Law Banning Fake News: Here’s How it Could Work, Time Magazine (Jun. 7th, 2018)

Jennifer Rankin, Tech firms could face new EU regulations over fake news, The Guardian (April 24th, 2018)

Niklas H. Rossbach, Psychological Defense: Vital for Sweden’s Defense Capability, Swedish Defense Research Agency (Nov. 2017)

Stefan Theil, The New German Social Media Law: A Risk Worth Taking? An Extended Look, Inforrm’s Blog (Feb. 20th, 2018)

Patrick Tucker, Analysts Are Quitting the State Department’s Anti-Propaganda Team, Defense One (Sep. 12th, 2017)

James Van De Valde, How to Defeat ISIS: Crash Their Comms, The American Interest (Jan. 10th, 2015)

James Van De Velde, Russia is at ‘Info War’ With the United States, The Cipher Brief (Nov. 17th, 2016)

James Van De Valde, ’War in Peace:’ Cyberspace and the Era of Persistent Confrontation, The American Interest (Sep. 5th, 2016) 

Contact us

For any questions regarding the conference or registration, please contact: Jennifer Cohen at [email protected]

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Democracy In The Crosshairs