Foreign interference can be hugely damaging as it may sway the election results and create distrust in the system. Given that foreign actors have interfered in previous elections, the possibility for foreign interference in the 2020 election has been carefully monitored. The 2016 election, saw cyberattacks and content stolen before being released through WikiLeaks.
During the last few months, evidence of Twitter accounts interfering in the election has been discovered. This includes posts from trolls, i.e. fake personas, spreading disinformation to undermine trust in American democracy.
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According to international law, states have an obligation to respect the sovereignty of others. Cyber election interference by foreign actors could violate the rule of sovereignty. In fact, a growing number of states have recognised this. Sovereignty can therefore be violated by a state infringing on another’s territorial integrity and inviolability.
It is generally agreed that cyber activities causing physical damage or injury in other states amounts to a violation of their sovereignty. This is unlikely to occur through election interference. However, sovereignty may also be violated by cyber operations interfering with an “inherently governmental function” of the victim state.
In the election context, interference is the key issue. Conducting elections is clearly a governmental function that only the state in question can perform or authorise non-states entities to perform. An election interference by a foreign actor would clearly interfere with the victim state’s ability to perform this function properly.
It is not conclusively settled that interference with an election comes under this rule. However, foreign cyber activity would undermine the victim state’s ability to conduct the election and this would seem to violate that state’s sovereignty.
Some commentators think international laws like this are not sufficient to deter foreign actors from interfering. It has therefore been proposed that democratic states introduce specific domestic legislation to tackle this.
One way of stopping or deterring foreign interference is to increase legal penalties for collusion. American lawyer Mark Levin recommends that the US increase legal penalties on domestic actors cooperating with foreign actors attempting to interfere with domestic elections, and that it should be classified as its own crime with a similar penalty to spying, this currently being prison with a maximum time of life. He argues that this could deter third parties from agreeing to collaborate.
Taking it a step further, he even recommends that democratic states should outlaw electronic voting altogether as these are open for hacking. However, in an increasingly digitalised world this is unlikely to happen. Furthermore, there is no evidence that a state has managed to alter vote numbers in another state’s election by the use of digital tools.
2020 was not a repeat of 2016 as Americans were more aware of the possibility of foreign interference. However US officials accused foreign states such as Russia, China and Iran of attempting to influence the election. Intelligence officials said that they had found Russian attempts at getting Trump re-elected, for example. Concerns about postal voting had been amplified by various meddling and misinformation on social media.
This could be a sign that foreign interference in elections is set to continue. To ensure that such interferences do not undermine states’ sovereignty, the legal implications of doing so must become clearer. However, if enough states recognise that foreign inference violates the rule of sovereignty, there may be legal implications for such activities in international law.
Words: Kristin Klungtveit
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