Cyberspace as a Commons: International Governance of Intelligence Activities

Abstract

The substantive international law, or lack thereof, governing state intelligence activities is fraught with debate. Blurry sovereign territorial lines and difficulties in attribution allow the rise of technological capabilities and increasing prevalence of cyberespionage activities to further complicate the issue. Cyberspace is not the first frontier in espionage that international law has had to grapple with, and it likely won’t be the last. Beyond territorial borders, states have established a governance structure for peacetime espionage in the global commons which intentionally avoids strict construction of specific issues while building in principles to facilitate legal intelligence collection. This paper argues that intelligence in cyberspace should be subject to governance as a commons space, like that of the high seas, because of its borderless nature, remote access abilities, and benefit of the “due regard” principle to productive use. While international law in this area is far from a comprehensive regime, a formal forward-looking agreement on cyberspace could provide a framework for state and private actors alike while leaving room for custom and secret practice to fill the gaps. Governing cyberspace as a commons means delineating between territorial and borderless cyberspace, defining “peaceful” use to incorporate intelligence collection, and considering the proportionality of actions.