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The Cyber Defense Review

 
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"Explicit" Bargains are Essential to Forming Desired Norms in Cyberspace

By | May 17, 2022

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As the United States endeavors to establish international norms in cyberspace, it is critical to delineate which behavioral norms it supports, how it plans to establish them, and to what ends the norms are to serve. Espionage does not violate any international norm; participants have tacitly agreed to undertake espionage and counterintelligence that fall below the "scale and effects" attributed to the "use of force" and assume their associated costs in peacetime. Yet not all espionage in cyberspace below this threshold is considered acceptable. For example, the US desires to bar espionage conducted "with the intent of providing competitive advantages to companies or commercial sectors." 

Existing literature largely favors tacit bargaining to develop norms in cyberspace. However, the dynamics of the 2015 U.S.–China Cyber Agreement highlight the necessity of both explicit bargains and the prospect of cooperation to avoid costly escalatory spirals. The newly established position of Deputy National Security Advisor for Cyber and Emerging Technology and the formation of Department of State’s Bureau of Cyberspace and Digital Policy offer a chance to develop a US-led multilateral whole-of-government approach for the formation of cyberspace norms. This approach is discussed here, using the the U.S.–China Cyber Agreement to illustrate how it would be preferable over simply relying on tacit bargaining.

 

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