The Sony Hack, It’s Still Not War Or Terrorism

By SeanLawson

For more than a decade we have heard constant warnings about the coming of “cyber war” and “cyber terrorism.” The prophets of cyber doom have promised that cyber attacks are just around the corner that will be on par with natural disasters or the use of weapons of mass destruction. With every new report of a cyber attack, the prophets exclaim that their visions have finally come to pass, and so it is with the most recent attack against Sony. But in most prior cases, after the dust has settled, the belated arrival of cyber war, terrorism, or doom has failed to live up to the initial hype. The same will be the case with the Sony hack. It is neither war nor terrorism as those terms are commonly defined. It certainly is not cyber doom.

Are We There Yet? Not So Fast

The term “act of war” has been used by some, most notably former Speaker of the House Newt Gingrich and Senator John McCain, to describe the Sony hack, which the FBI attributes to North Korea. When people are using this term, what they really mean is that it is an “armed attack,” an act that can justify the use of force in self defense.

But the Sony hack does meet the common definition of that term. The best current guidelines for when a cyber attack can be considered an armed attack come from the NATO Tallinn Manual. The manual’s lead author has analyzed the Sony case and has concluded that it is not an armed attack.

The cyber operation against Sony involved the release of sensitive information and the destruction of data. In some cases, the loss of the data prevented the affected computers from rebooting properly. Albeit highly disruptive and costly, such effects are not at the level most experts would consider an armed attack.

This is because to qualify as armed attack, an action generally must result in “substantial injury or physical damage.” Some of the authors of the Tallinn Manual would also consider an act “resulting in a State’s economic collapse” to be an armed attack. Clearly, the Sony hack fits neither of those descriptions.

If the Sony hack is not war, then maybe it is terrorism. Some have argued that the United States should just “declare” that acts like this are terrorism and their perpetrators terrorists. Though the term “terrorism” has been notoriously ambiguous, nonetheless, it does not mean just anything. In fact, we have a definition of terrorism in U.S. Code:

(1) the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum

The Sony case fails to meet this definition, and for the same reasons it fails to meet the definition of armed attack: there was no physical harm. Sure, the hack appears to have been for the purposes of coercing or intimidating a civilian organization and to have transcended international boundaries. But it did not “involve violent acts or acts dangerous to human life” and thus fails to meet the very first requirement of the definition regardless of whatever later parts of the definition may fit. Do not pass go.

Another possibility is that the Sony hack is an example of a sub-category of terrorism, so-called “cyber terrorism,” whose definition could potentially include a wider range of effects. More than a decade ago, Dorothy Denning provided (PDF) one of the clearest and most widely accepted definitions of “cyber terrorism.”

Cyberterrorism is the convergence of terrorism and cyberspace. It is generally understood to mean unlawful attacks and threats of attack against computers, networks, and the information stored therein when done to intimidate or coerce a government or its people in furtherance of political or social objectives. Further, to qualify as cyberterrorism, an attack should result in violence against persons or property, or at least cause enough harm to generate fear. Attacks that lead to death or bodily injury, explosions, plane crashes, water contamination, or severe economic loss would be examples. Serious attacks against critical infrastructures could be acts of cyberterrorism, depending on their impact. Attacks that disrupt nonessential services or that are mainly a costly nuisance would not.

There is more room for debate about whether the Sony hack meets this definition, but it still seems like a stretch. Though economic effects are contemplated, those that would qualify are described as “severe” or directed against “critical infrastructure,” not “nonessential services.” The implication seems to be that the economic consequences should be national in scope, not against one private entity. Though Sony may take a large financial hit as a result of the attack, it is hard to imagine that there will be “severe” impacts on the national economy as a result. It is also a stretch to argue that Sony’s services are “essential.”

Confusing Causes with Effects

It seems clear that the Sony hack does not meet these definitions of war, terrorism, or cyber terrorism. So why are so many using these terms? One answer is fear-induced overreaction. Another, more cynical answer is militaristic animus. One or both of these may play some role for some individuals. But another factor is a fundamental confusion, whether purposeful or inadvertent, of causes and effects in cyber conflict, an issue I have discussed at length elsewhere and to which I will call attention once more.

In each case, the definitions examined above are “effects based.” That is, an attack is an armed attack, is terrorism, or is cyber terrorism based on its effects. If those effects meet certain criteria, cross a certain threshold, then they meet the definition. In each case, physical harm to humans or property is a key criteria or threshold. Denning’s definition of cyber terrorism adds some kinds of severe economic effects. But it is still an effects based definition.

In public debates about the meaning of incidents like the Sony hack, we see a number of disturbing tendencies. We see a tendency to define what counts as war, terrorism, or cyber terrorism based on who conducted the attack and/or what instruments were used in the attack, that is, a shift towards an actor or instrument, as opposed to effects, based definition. In this new scheme, it is tempting to say that if a terrorist group uses cyber instruments, then the incident is cyber terrorism regardless of what actual damage is done. Similarly, it is tempting to say that if a foreign military or intelligence service, especially of a hostile nation, uses cyber instruments in a malicious way, then the incident is armed attack, again, regardless of actual damage done.

Expanding the Definitions of War and Terrorism

The implications of this confusion should be as clear as they are dangerous. Those who call for affixing the war or terrorism label to the Sony hack are not just encouraging us to reconsider how we think about malicious acts in cyberspace. Instead, they are, perhaps inadvertently, encouraging us to redefine what counts as war and terrorism. In doing so, the definitions of both of those terms become absurdly and dangerously broad. Suddenly, financial loss for a multinational media company and embarrassment for its CEO from leaked emails is “war” like World War II or “terrorism” like the attacks of September 11, 2001. This is absurd.

But it is also dangerous. When we accept certain events as really, truly being war or terrorism, then we accept certain kinds of responses to those events that we otherwise would not. We accept the use of physical violence, or actions that could escalate to physical violence, in response to these kinds of events when such responses would not be seen as acceptable if these events were defined differently. To say that the Sony hack is an armed attack by North Korea is to say that it would be legitimate and acceptable for the United States to launch a physical attack on North Korea in response. Some will say, “That is unrealistic. The United States would not actually do that!” But that misses the point. By seriously calling the Sony hack an armed attack or terrorism, we are saying, in effect, “Even though the United States is unlikely to launch a physical attack in response, it would be acceptable for it to do so.” In fact, it would not be.

We should not diminish the seriousness of what happened to Sony. The Sony incident is emblematic of very serious and longstanding threats to cyber security. Indeed, while the world focused on the Sony case, news broke of yet another massive data breach at a major retailer, this time Staples, where information from over one million payment cards was stolen. The Sony incident is a warning that the impacts of such data breaches can be even worse, going far beyond stolen credit card data. But hysterical screams of “terrorism” and “war” are not a serious response to a serious problem. What’s more, such hysterical responses risk broadening the definitions of these terms in a way that is both absurd and dangerous. It is time to take a deep breath and return from the “realm of beyond stupid” before we do something, well, stupid.

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