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Nobody But Us

by Ben Buchananvia Hoover Institution
Wednesday, August 30, 2017

This paper examines how the NOBUS approach works, its limits, and the challenging matter of what comes next. Traditionally, signals intelligence is neatly bifurcated into offense and defense: intercept adversaries’ communication technology and protect one’s own. In the modern era, however, there is great convergence in the technologies used by friendly nations and by hostile ones. Signals intelligence agencies find themselves penetrating the technologies they also at times must protect. To ease this tension, the United States and its partners have relied on an approach sometimes called Nobody But Us, or NOBUS: target communications mechanisms using unique methods accessible only to the United States.

How China’s Views on the Law of Jus ad Bellum Will Shape Its Legal Approach to Cyberwarfare

by Julian G. Kuvia Aegis Paper Series
Thursday, August 17, 2017

This paper concludes that the Chinese government has adopted a strict positivist reading of the UN Charter’s limitations on the use of force that brooks no exceptions for humanitarian interventions and with a narrowly construed exception for self defense. Since China has not shown any willingness to abandon this legal approach to the law of jus ad bellum codified in the Charter, it is unlikely that China will embrace the US legal approach to cyberwarfare. Rather, China will probably use its restrictive reading of the UN Charter to garner political support among other countries to criticize and deter offensive US cyberwarfare.  This sharp divide between the US and Chinese legal positions calls into question the efficacy of longstanding US government efforts to convince China to accept and apply international law to cyberwarfare.  

Appropriate Norms Of State Behavior In Cyberspace: Governance In China And Opportunities For US Businesses

by Mei Gechlikvia Aegis Paper Series
Thursday, July 27, 2017

Finding cybernorms that are acceptable to the United States and China, which have different ideologies and practices as well as enormous interests at stake, is challenging. This article identifies these developments in China - the new Guiding Cases System as well as foreign and domestic developments regarding facilitating everyone’s access to cyberspace - and discusses how they, together with the Shanghai Cooperation Organization’s growing significance in the international arena, call for more strategic thinking among US policymakers so that the United States can seize the new opportunities to engage meaningfully with China in establishing international norms for cyberspace.

Encryption Substitutes

by Andrew Keane Woodsvia Aegis Paper Series
Tuesday, July 18, 2017

This paper argues that the “going dark” debate ought to be considered in context of the larger debate over government access to data. Encryption is not the only game in town: just as law enforcement can pursue a number of different alternatives to mandating encryption backdoors, so too can privacy advocates take steps beyond encrypting their data to ensure their privacy.  Acknowledging these substitutes—both for law enforcement and for privacy seekers—generates a number of insights. For example, comprehensive reform may make more sense than serial reforms, since it would allow for issue linkage and deal-making.

China and the US Strategic Construction of Cybernorms: The Process Is the Product

by Duncan B. Hollisvia Aegis Paper Series
Thursday, July 6, 2017

This paper explores the role norms play in advancing U.S. interests in changing Chinese behavior in cyberspace.  It compares and contrasts U.S. efforts to achieve two norms:  (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages.  In contrast to prior studies that focus only on the behavior a norm requires, this paper employs a broader, process-based analysis.  That analysis offers a new framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. 

Chinese Cyber Diplomacy In A New Era Of Uncertainty

by Adam Segalvia Aegis Paper Series
Friday, June 2, 2017

After initially taking a relatively defensive, reactive position on the global governance of cyberspace, China under President Xi Jinping has adopted a more activist cyber diplomacy. This foreign policy has three primary goals: limit the threat that the internet and the flow of information may pose to domestic stability and regime legitimacy; shape cyberspace to extend Beijing’s political, military, and economic influence; and counter US advantages in cyberspace and increase China’s room of maneuver. Measured against its objectives, China’s diplomacy would appear relatively successful. The greatest uncertainty for Beijing moving forward is the state of US-China relations.

The Encryption Debate In Europe

by Daniel Seversonvia Aegis Paper Series
Monday, March 20, 2017

The going dark debate has spread to Europe. The commercial growth of encryption and a wave of terrorist attacks have spurred new laws to detect and disrupt terrorism. This article reviews the most recent encryption-related legislation in France, the United Kingdom, the Netherlands, Hungary, and Poland. The article discusses the legislative debates, as well as aims to achieve coordination at the EU level. Although Europe has so far disavowed banning encryption or mandating pre-installed backdoors, several countries have enacted statutes authorizing compelled decryption. The article concludes by briefly comparing the European approach to the American legal regime.

The Elephant in the Room: Addressing Child Exploitation and Going Dark

by Susan Hennesseyvia Aegis Paper Series
Friday, January 27, 2017

The public debate over encryption and Going Dark insufficiently addresses the issue of child sexual exploitation. This article describes the particular impacts of Going Dark on the prevention, investigation, and prosecution of child sexual abuse crimes. It reviews the available statistics related to quantifying the scope of the problem and the ways in which these crimes have become easier to commit and more difficult to detect. It concludes that lawful hacking, wherein the government exploits existing software vulnerabilities to circumvent security, is a necessary element of a Going Dark solution. To that end, the article explores the legal and policy questions that must be addressed in order to develop a practical and realistic response.

International Spillover Effects

by Jennifer Daskalvia Aegis Paper Series
Monday, December 12, 2016

As the encryption debate continues, proponents on both sides decry the negative international side effects of the policies they oppose.  This essay analyzes the claims, examining the potential effects of the specific policies being pursued.  It ultimately concludes that even the “no new regulation” approach has potentially significant spillover effects.  These effects are bidirectional and dynamic: US policies and practices have a spillover effect internationally; but the policies and practices of foreign actors also influence the effectiveness of any decryption policy, and thus the scope and distribution of any such effect.  This highlights the need for centralized, executive-level review of sought-after decryption orders, so as to better account for the potential effects.

China, Encryption Policy, and International Influence

by Adam Segalvia Aegis Paper Series
Monday, November 28, 2016

It is difficult to disentangle the influence of U.S. encryption policy on the development of Chinese regulations and laws. Independent of what happens in Washington, Beijing has a long history of using encryption policy to foster national and domestic security as well as to promote economic growth and indigenous innovation. 

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Aegis explores legal and policy issues at the intersection of technology and national security.  Published in partnership with the Lawfare Blog, it features long-form essays of the Hoover Institution National Security, Technology and Law Working Group (the Aegis Paper Series), examines major new books in the field, and carries podcasts and videos or the working group’s events in Washington and Stanford.