On Cyber Weapons and Chimeras

This post has been authored by Gunjan Chawla and Vagisha Srivastava

Closeup of laptop computer keyboard, and gun bullets, representing the concept of cyber attacks, Journalism, terrorism, support for terrorists, click enter

“The first thing we do, let’s kill all the lawyers,” says Shakespeare’s Dick the Butcher to Jack Cade, who leads fellow conspirators in the popular rebellion against Henry VI.

The same cliché may as well have been the opening line of Pukhraj Singh’s response to our last piece, which joins his earlier pieces heavily burdened with thinly veiled disdain for lawyers poking their noses into cyber operations. In his eagerness to establish code as law, he omits not only the universal professional courtesy of getting our names right, but also a basic background check on authors he so fervently critiques – only one of whom is in fact a lawyer and the other, an early career technologist.

In this final piece in our series on offensive cyber capabilities, we take exception to Singh’s misrepresentation of our work and hope to redirect the conversation back to the question raised by our first piece – what is the difference between ‘cyber weapons’ and offensive cyber capabilities, if any? Our readers may recall from our first piece in the series Does India have offensive cyber capabilities that Lt Gen Pant had in an interview to Medianama, denied any intent on part of the Government of India to procure ‘cyber weapons’. However, certain amendments inserted in export control regulations by the DGFT suggested the presence of offensive cyber capabilities in India’s cyber ecosystem. Quoting Thomas Rid from Cyber War Will Not Take Place,

“these conceptual considerations are not introduced here as a scholarly gimmick. Indeed theory shouldn’t be left to scholars; theory needs to become personal knowledge, conceptual tools used to comprehend conflict, to prevail in it, or to prevent it.”

While lawyers and strategists working in the cyber policy domain admittedly, still have a lot to learn from those with personal knowledge of the conduct of hostilities in cyberspace, deftly obscured by a labyrinth of regulations and rapidly changing rules of engagement, the question of nomenclature remains an important one. The primary reason for this is that the taxonomy of cyber operations has significant implications for the obligations incumbent on States and State actors under international as well as domestic law.

A chimeral critique

Singh’s most seriously mounted objection in his piece is to our assertion that ‘cyber capabilities’ and ‘cyber operations’ are not synonymous, just as ‘arms’ and ‘armed attack’, or ‘weapons’ and ‘war’ are distinct concepts. However, a wilful misunderstanding of our assertion that cyber capabilities and cyber operations are not interchangeable terms does not foster any deeper understanding of the legal or technical ingredients of a ‘cyber operation’–irrespective of whether it is offensive, defensive or exploitative in intent and design.

The central idea remains, that a capability is wielded with the intent of causing a particular effect (which may or may not be identical to the actual effect resulting from the cyber operation). A recent report by the Belfer Center at Harvard on a ‘National Cyber Power Index’, which views a nation’s cyber power as a function of its intent and capability, also seems to support this position. Certainly, the criteria and methodology of assessment remain open to debate and critique from academics as well as practitioners, and this debate needs to inform our legal position and strategic posture (again, the two are not synonymous) as to the legality of developing offensive cyber capabilities in international as well as domestic law.

Second, in finding at least one of us guilty of a ‘failure of imagination’, Singh steadfastly advocates the view that cyber (intelligence) operators like himself are better off unbounded by legal restraint of their technical prowess, functioning in a Hobbesian (virtual) reality where code is law and technological might makes right. It is thus unsurprising that Singh in what is by his own admission a ‘never to be published manuscript’, seems to favour practices normalized by the United States’ military doctrine, regardless of their dubious legality.

Third, in criticizing lawyers’ use of analogical reasoning—which to Singh, has become ‘the bane of cyber policy’—he conveniently forgets that for those of us who were neither born in the darkness of covert cyber ops, nor moulded by it, analogies are a key tool to understand unfamiliar concepts by drawing upon learnings from more familiar concepts. Indeed, it has even been argued that analogy is the core of human cognition.

Navigating a Taxing Taxonomy

Writing in 2012 with Peter McBurney, Rid postulates that cyber weapons may span a wide spectrum, from generic but low-potential tools to specific high potential weaponry – and may be viewed as a subset of ‘weapons’. In treating cyberweaponry as a subset of conventional weaponry, their underlying assumption is that the (cyber) weapon is being developed and/or deployed with ‘the aim of threatening or causing physical, functional or mental harm to structures, systems or living beings’. This also supports our assertion that intent is a key element to planning and launching a cyber operation, but not for the purposes of classifying a cyber operation as an ‘armed attack’ under international law. However, it is important to mention that Rid considers ‘cyber war’ as an extremely problematic and dangerous concept, one that is far narrower than the concept of ‘cyber weapons’.

Singh laments that without distinguishing between cyber techniques and effects, we fall into ‘a quicksand of lexicon, taxonomies, hypotheses, assumptions and legalese’. He considers the OCOs/DCOs classification too ‘simplistic’ in comparison to the CNA/CND/CNE framework. Even if the technological underpinnings of cyber exploits (for intelligence gathering) and cyber attacks (for damage, disruption and denial) have not changed over the years, as Singh argues—the change in terminology/vocabulary cannot be attributed to ‘ideology’. This change is a function of a complete reorganization and restructuring of the American national security establishment to permit greater agility and freedom of action in rules of hostile engagement by the military in cyberspace.

Unless the law treats cognitive or psychological effects of cyber operations, (eg. those depicted in the Social Dilemma or the Great Hack, or even in doxing classified documents) as harm that is ‘comparable’ to physical damage/destruction, ‘cyber offence’ will not graduate to the status of a ‘cyber weapon’. For the time being, an erasure of the physical/psychological dichotomy appears extremely unlikely. If the Russian and Chinese playbook appears innovative in translating online activity to offline harm, it is because of an obvious conflation between a computer systems-centric cyber security model and the state-centric information security model that values guarding State secrets above all else, and benefits from denying one’s adversary the luxury of secrecy in State affairs.

The changing legal framework and as a corollary, the plethora of terminologies employed around the conduct of cyber operations by the United States run parallel to the evolving relationship between its intelligence agencies and military institutions.

The US Cyber Command (CYBERCOM) was first created in 2008, but was incubated for a long time by the NSA under a peculiar arrangement established in 2009, whereby the head of the NSA was also the head of the US CYBERCOM, with a view to leverage the vastly superior surveillance capabilities of the NSA at the time. This came to be known as a ‘dual-hat arrangement’, a moniker descriptive of the double role played by the same individual simultaneously heading an intelligence agency as well as a military command. Simply put, cyber infrastructure raised for the purposes of foreign surveillance and espionage was but a stepping stone to building cyber warfare capabilities. Through a presidential memorandum in 2017, President Trump directed the Secretary of Defense to establish the US Cyber Command as a Unified Combatant Command, elevating its status from a sub-unit of the US Strategic Command (STRATCOM).

An important aspect of the ‘restructuring’ we refer to are two Presidential directives – one from 2012 and another from 2018. In October 2012, President Obama signed the Presidential Policy Directive- 20 2012 (PPD). It was classified as Top Secret at the time, but leaked by Ellen Nakashima of the Washington Post a month later. The PPD defined US cyber policy, including terms such as ‘Offensive Cyber Effects Operations’ (OCEO) and ‘Defensive Cyber Effects Operations’ (DCEO) and mandated that all cyber operations were to be executed with the explicit authorization from the President. In August, 2018, Congress passed a military-authorization bill that delegated some cyber operations to be authorized by the Secretary of Defense. It is relevant that ‘clandestine military activity (covert operations) or operations in cyberspace are now considered a traditional military activity under this statute, bringing it under the DoD’s authority. The National Security Presidential Memorandum 13 (NSPM) on offensive cyber operations signed by President Trump around the same time, although not available in the public domain, has reportedly further eased procedural requirements for Presidential approval in certain cyber operations.

Thus, if we overcome apprehensions about the alleged ‘quicksand of lexicon, taxonomies, hypotheses, assumptions and legalese,’ we can appreciate the crucial role played by these many terms in the formulation of clear operational directives. They serve an important role in the conduct of cyber operations by (1) delineating the chain of command for the conduct of military cyber operations for the purposes of domestic law and (2) bringing the conversation on cyber operations outside the don’t-ask-don’t-tell realm of ‘espionage’, enabling lawyers and strategists to opine on their legality and legitimacy, or lack thereof, as military operations for the purposes of international law – much to Singh’s apparent disappointment. To observers more closely acquainted with the US playbook on international law, the inverse is also true, where operational imperatives have necessitated a re-formulation of terms that may convey any sense of illegality or impropriety in military conduct (as opposed to the conduct of intelligence agencies, which is designed for ‘plausible deniability’ in case of an adverse outcome).

We relied on the latest (June 2020) version of JP 1-02 for the current definition of ‘offensive cyber operations’ in American warfighting doctrine. We can look to earlier versions of the DoD Dictionary to trace back the terms relevant to CNOs (including CAN, CNE and CND). This exercise makes it quite apparent that the contemporary terminologies and practices are all rooted in (covert) cyber intelligence operations, which the (American) law and policy around cyberspace bends backwards to accommodate and conceal. That leading scholars have recently sought to frame ‘cyber conflict as an intelligence contest’ further supports this position.

  • 2001 to 2007 – ‘cyber counterintelligence’ as the only relevant military activity in cyberspace (even though a National Military Strategy for Cyberspace Operations existed in 2006)
    • 2008: US CYBERCOM created as a sub-unit of US STRATCOM
    • 2009 – Dual Hat arrangement between NSA and CYBERCOM
    • 2010– US CYBERCOM achieves operational capability on May 21; CNA/CNE enter the DoD lexicon
    • 2012 – PPD 20 issued by President Obama
    • 2013 – JP 3-12 published as doctrinal guidance from the DoD to plan, execute and assess cyber operations
    • By 2016 – DoD dictionary defines ‘cyberspace operations’, DCOs, OCOs, (but not cyberspace exploitation) relying on JP 3-12
    • 2018 – NSPDM 13 signed by President Trump
    • 2020 – ‘cyberspace attack’ ‘cyberspace capability’, ‘cyberspace defence’, ‘cyberspace exploitation’, ‘cyberspace operations’, cyberspace security, cybersecurity as well as OCOs/DCOs are defined terms in the Dictionary

Even as JP 3-12 remains an important document from the standpoint of military operations, reliance on this document is inapposite, even irrelevant for the purposes of agencies responsible for cyber intelligence operations. In fact, JP 3-12 is also not helpful to explain the whys and hows of the evolution in the DoD vocabulary. This is a handy guide to decode the seemingly cryptic numbering of DoD’s Joint Publications.

Waging Cyber War without Cyber ‘Weapons’?

It is relevant to mention that none of the documents referenced above, including JP 3-12, make any mention of the term ‘cyber weapon’. A 2010 memorandum from the Chairman of the Joint Chiefs of Staff, however, clearly identifies CNAs as a form of ‘offensive fire’ – analogous to weapons that are ‘fired’ upon a commander’s order, as well as a key component of Information Operations.

The United States’ Department of Defense in its 2011 Defense Cyberspace Policy Report to Congress acknowledged that “the interconnected nature of cyberspace poses significant challenges for applying some of the legal frameworks developed for physical domains” and observed that “there is currently no international consensus regarding the definition of a cyber weapon”.

A plausible explanation as to why the US Government refrains from using the term ‘cyber weapons’ is found in this report, as it highlights certain legal issues in the transporting cyber ‘weapons’ across the Internet through the infrastructure owned and/or located in neutral third countries without obtaining the equivalent of ‘overflight rights’, and suggests ‘a principled application of existing norms to be developed along with partners and allies’. A resolution to this legal problem highlighted in the DoD’s report to Congress is visible in the omission of the term ‘cyber weapon’ in legal and policy frameworks altogether, only to be replaced by ‘cyber capabilities’.

We can find the rationale for and implications of this pivot in the work of Professor Michael Schmitt’s 2019 paper, wherein he argues in the context of applicable international law – contrary to the position he espoused in the Tallinn Manual –that ‘cyber capabilities’ cannot meet the definition of a weapon or means of warfare, but that cyber operations may qualify as methods of warfare. This interpretation permits ‘cyber weapons’ in the garb of ‘cyber capabilities’ to circumvent at least three obligations under the Law of Armed Conflict/International Humanitarian Law.

First, is the requirement for legal review of weapons under Article 36 of the First Additional Protocol to the Geneva Conventions (an issue Col. Gary Brown has also written about) and second, is taking precautions in attack. Third and most important, the argument that cyber weapons cannot be classified as munitions also has the consequence of depriving neutral States of their sovereign right to refuse permission of the transportation of weapons (or in this case, transmission of weaponised cyber capabilities) through their territory (assuming that this is technically possible).

So, in a sense, if we do not treat offensive cyber capabilities, or ‘cyber weapons’ as analogous in international law to conventional weapons normally associated with armed hostilities, in effect, we also restrain the ability of other sovereign States under international law to prevent and prohibit a weaponization of cyberspace without their consent, for military purposes of other cyber powers. Col. Gary Brown whose work Singh seems to nurture a deep admiration for admits that the first ‘cyber operation’ was conducted by the United States against the Soviet Union in 1982, causing a trans-Siberian pipe to explode by use of malware implanted in Canadian software acquired by Soviet agents. Since 1982, the US seems to have functioned in single-player mode until Russia’s DDoS attacks on Estonia in 2007, or at the very least, until MOONLIGHT MAZE was uncovered in 1998. For those not inclined to read, Col. Brown makes a fascinating appearance alongside former CIA director Michael Hayden in Alex Gibney’s 2016 Documentary ‘Zero Days’ which delves into Stuxnet – an obvious cyber weapon by any standards, which the US ‘plausibly denied’ until 2012.

Turning back to domestic law, the nomenclature is also significant from a public finance perspective. As anecdotal evidence, we can refer to this 2013 Reuters report, which suggests that the US Air Force designated certain cyber capabilities as ‘weapons’ with a view to secure funding from Congress.

From the standpoint of managing public perceptions too, it is apparent that the positive connotations associated with ‘developing cyber capabilities’ makes the same activity a lot more palatable, even development-oriented in the eyes of the general public, as opposed to the inherent negativity associated with say, the ‘proliferation of cyber weapons’.

Additionally, the legal framework is also important to delineate the geographical scope of the legal authority (or its personal jurisdiction, if you will) vested in the military as opposed to intelligence agencies to conduct cyber operations. For organizational purposes, the role of intelligence would (in theory) be limited to CNE, whereas CNA and CND would be vested in the military. We know from (Pukhraj’s) experience, this distinction is nearly impossible to make in practice, at least until after the fact. This overlap of what are arguably, artificially created categories of cyber operations, raises urgent questions about the scope and extent of authority the law can legitimately vest in our intelligence agencies, over and above the implicit authority of the armed forces to operate in the cyber domain.

Norm Making by Norm Breaking

In addition to understanding who wields offensive cyber capabilities, under what circumstances, it is also important for the law to specify where or against whom they are permitted to do so by law. Although militaries of modern day ‘civilized’ nations are rarely ever deployed domestically, there has been some recent concern over whether the US CYBERCOM could be deployed against American citizens in light of recent protests, just as special forces were. While the CIA has legal authority to operate exclusively beyond the United States, the NSA is not burdened by such constraints and is authorized to operate domestically. Thus, the governance/institutional choices before a State looking to ‘acquire cyber weapons’ or ‘develop (offensive) cyber capabilities’ range from bad to worse. One might either (1) permit its intelligence agencies to engage in activities that resemble warfighting more than they resemble intelligence gathering and risk unintentional escalations internationally or (2) permit its military to engage in intelligence collection domestically, potentially against its own citizens and risk ubiquitous militarization of and surveillance in its domestic cyberspace.

Even as many celebrate the recent Federal court verdict that the mass surveillance programmes of the NSA revealed by Edward Snowden were illegal and unconstitutional, let us not forget that this illegality is found vis-à-vis the use of this programme against American citizens only – not foreign surveillance programmes and cyber operations conducted beyond American soil against foreign nationals. Turning to an international law analysis, it is the US’ refusal to recognize State sovereignty as a binding rule of international law, that enables the operationalization of international surveillance and espionage networks and transmission of weaponized cyber capabilities that routinely violate not only the sovereignty of States, but also the privacy and dignity of targeted individuals (the United States does not accept the extra-territorial applicability of the ICCPR).

The nom de guerre of these transgressions in American doctrine is now ‘persistent engagement’ and ‘defend forward’, popularized by the Cyber Solarium Commission most recently—a cleverly crafted term that brings about no technical changes in the modus operandi, but disguises aggressive cyber intrusions across national borders as ostensible self-defence.

It is also relevant that this particular problem also finds a clear mention in the Chinese Foreign Minister’s recent statement on the formulation of Digital Security rules by China. Yet, it is not a practice from which either the US or China plan to desist. Recent revelations about the Chinese firm Zhenhua Data Information Technology Co. by the Indian Express have only served to confirm the expansive, and expanding cyber intelligence network of the Chinese state.

These practices of extraterritorial surveillance, condemnable as they may be, have nonetheless, shaped the international legal order we find ourselves in today – a testimony to the paradoxical dynamism of international law– not unlike the process of ‘creative destruction’ of cyberspace highlighted by Singh—where a transgression of the norm (by either cyber power) may one day, itself become a norm. What this norm is, or should be still remains open to interpretation, so let’s not rush to kill all the lawyers—not just yet anyway.

What are ‘offensive cyber capabilities’?

Antivirus interface over modern tech devices in dark background 3D rendering

By Gunjan Chawla and Vagisha Srivastava

In our previous post, “Does India have offensive cyber capabilities?”, we discussed a recent amendment to the SCOMET list appended to the ITC-HS classification by the Directorate General of Foreign Trade (DGFT). The amendment did not define, but described software for military offensive cyber operations as a term including (but not limited to) software which are designed to destroy, damage, degrade or disrupt systems, equipment and other softwares specified by Category 6 (Munitions), as well as software for cyber reconnaissance and cyber command and control.

In this post, we examine what exactly constitutes ‘offensive cyber capabilities’ (OCCs) and their role in conducting cyber operations with reference to various concepts from US, UK and Australia’s cyber doctrines. We begin by comparing two definitions of ‘cyber capabilities’.

‘Cyber Capabilities’ = ‘Cyber Operations’?

In US military doctrine, a ‘cyberspace capability’ is defined not as human skill in handling tools and software, but as “a device or computer program, including any combination of software, firmware, or hardware, designed to create an effect in or through cyberspace.” (emphasis added)

In contrast, the Australian Strategic Policy Institute (ASPI) in Defining Offensive Cyber Capabilities notes that “In the context of cyber operations, having a capability means possessing the resources, skills, knowledge, operational concepts and procedures to be able to have an effect in cyberspace.” (emphasis added)

The ASPI’s emphasis on resources, skills and knowledge merits special attention. Without skilled personnel to wield such devices or software, offensive cyber operations cannot be mounted successfully. This is an especially important distinction if we are looking to formulate a functional definition relevant to India’s requirements. Our conceptualisation of OCCs must accord priority to not only the acquisition of tools, devices and software developed by other nations, but to build internal capacity through investment in creation and dissemination of technical knowledge and skill development.

This view also finds support in the United Kingdom’s articulation of defence ‘cyber capabilitiy’. In the UK’s Cyber Primer formulated by the Ministry of Defence, it is acknowledged (see fn 7) that defence cyber capabilities can be a combination of hardware, firmware, software and operator action (emphasis added).

Yet, surprisingly, the ASPI’s concluding definition of OCCs equates offensive capabilities with offensive cyber operations (OCOs), “offensive cyber capabilities are defined as operations in cyberspace to manipulate, deny, disrupt, degrade, or destroy targeted computers, information systems or networks.” (emphasis added)

The underlying logic of this equation is perhaps the old adage – the proof of the pudding is in the eating? This means that in ASPI’s conceptualisation, to ‘have’ OCCs would be meaningless, and not entirely credible if no OCOs are conducted by entities claiming to possess OCCs. However, from a legal standpoint, one cannot say that ‘capabilities’ and ‘operations’ are synonymous any more than one could claim that having ‘arms/ammunitions/weapons’ are synonymous to an ‘armed attack’.

This leads us to an obvious question – what are offensive cyber operations?

Offensive Cyber Operations: Cyber Attacks (or Exploits) by Another Name?

In the United States’ military doctrine, Offensive Cyber Operations (OCOs) are understood to be operations that are “intended to project power by application of force in or through cyberspace.”

This definition of OCOs is also reiterated in the March 2020 report of the Cyberspace Solarium Commission (CSC). The CSC was constituted last year by the US Congress under the John S. McCain National Defense Authorization Act, 2019 to “develop a consensus on a strategic approach to defending the United States in cyberspace against cyber attacks of significant consequences” and presented its report to the public on 11 March 2020.

Over the years, the vocabulary of the US military doctrine and strategy documents of the Department of Defense (DoD) too, have used a variety of terms to classify various categories of cyber operations. In 2006, the DoD preferred using the broader term ‘Computer Network Operations’ (CNOs) instead of ‘cyber attacks’, as seen in its National Military Strategy for Cyberspace Operations.  CNOs were classified into computer network attack (CNAs), computer network defense (CND) and computer network exploitation (CNEs).

More recent documents have dropped the use of the term ‘CNO’ and exhibit a preference for ‘cyberspace operations’ or ‘cyber operations’ instead. The US DoD Dictionary of Military and Associated Terms defines ‘cyberspace operations’ as ‘[t]he employment of cyberspace capabilities where the primary purpose is to achieve objectives in or through cyberspace’.

Yet, in spite of the multiplicity of terms employed, offensive cyber capabilities can be categorised broadly, as the ability to conduct a cyber attack or cyber exploitation. Although similar, it is important to distinguish cyber attacks from cyber exploitations. Herbert Lin has observed that “[t]he primary technical difference between cyber attack and cyber exploitation is in the nature of the payload to be executed—a cyber attack payload is destructive whereas a cyber exploitation payload acquires information nondestructively”.

Indeed, the US DoD dictionary defines ‘cyberspace attacks’ and ‘cyberspace exploits’ separately. ‘Cyberspace attacks’ are actions taken in cyberspace that create noticeable denial effects (i.e., degradation, disruption, or destruction) in cyberspace or manipulation that leads to denial that appears in a physical domain, and is considered a form of fire. In contrast, cyberspace exploitation refers to actions taken in cyberspace to gain intelligence, maneuver, collect information, or perform other enabling actions required to prepare for future military operations’.

A definition of OCOs similar to the US’ conceptualisation can also be found in the UK Cyber Primer. This Primer defines OCOs as “activities that project power to achieve military objectives in, or through, cyberspace”.

The UK envisions OCOs as one of four non-discrete categories within the broader term ‘cyber operations’ that can be used to inflict temporary or permanent effects that reduce an adversary’s confidence in networks or capabilities.  Such action can support deterrence by communicating intent or threats. These four categories are, namely, (1) defensive cyber operations; (2) offensive cyber operations; (3) cyber intelligence, surveillance and reconnaissance; and (4) cyber operational preparation of the environment.

Thus, we can infer from a combined reading of all these definitions that

  1. cyber capabilities and cyber operations are not synonymous, but
  2. cyber capabilities (both the technological tools, as well as the human skill elements) are a prerequisite to conducting OCOs, which may be intended to either –
    • ‘project power through the application of force’ (US) or
    • ‘achieve military objectives‘ (UK) or  
    • ‘manipulate, deny, disrupt, degrade, or destroy targeted computers, information systems or networks’ (ASPI)  or
    • ‘destroy, damage, degrade or disrupt systems, equipment and other softwares (India’s DGFT) – in or through cyberspace.

A one trick pony?

In order to execute an offensive cyber operation, the tools (or capabilities) used could range from simple malware, virus, phishing attacks, ransomware, denial of service attacks, to more sophisticated and specially-built softwares. But these tools would be futile if not for the existence of vulnerabilities in the system being attacked to enable the exploit.

From the standpoint of conducting an offensive cyber operation (whether an attack or exploit), one would necessarily require:

  1. Cyber capabilities (technical tools and software) to exploit a pre-existing vulnerability, or to introduce a new vulnerability into the targeted system
  2. A specific intent (i.e. specific orders or directions to meet a particular, specified military or strategic objective through on in cyberspace)
  3. A person/organization/entity/State identified as the target and (i.e. an intended target)
  4. Planning and clearly defining the expected consequences of the attack (i.e. the intended effects)

The presence or absence of any of these factors would heavily determine the likelihood of the success of a cyber attack or exploit. Often, the actual outcome of a cyber attack is different from the intended outcome. As one cyber intelligence analyst puts it, “Any cyber operator worth her salt knows that even mission-driven, militaristic hacking thrives under great, terrifying ambiguity.”

Additionally, while the tools used are time-consuming to produce, they are rendered useless after deploying an attack. In most cases, this is because operators of the system being attacked will ensure the application of security patches to close known vulnerabilities in the aftermath of a cyber attack. For this reason, OCCs, especially those that have been ‘specially designed or modified for use in military offensive cyber operations’, once deployed, have extremely limited to negligible potential for re-use or re-deployment, especially against the same target. However, without sufficient emphasis on and investment in human skills and capabilities, the effectiveness of the available technical tools would also suffer in the long run.

A ‘digital strike’ to start a ‘cyber war’?

The deployment of cyber capabilities in an OCO must cause actual physical damage comparable in scale and effects to that of a conventional, kinetic attack to be termed as an ‘armed attack’ or an unlawful ‘use of force’ in international law. Although some of the attacks or exploitations in cyberspace could result in physical damage akin to damage caused by a traditional kinetic attack, most don’t.

Drawing from a list of significant cyber incidents recorded by the Center for Strategic and International Studies (CSIS), we can observe that very few attacks carried out in the past had the potential to lead to casualties. Scholars still disagree if all these cyber incidents could be termed as ‘a use of force’ or ‘a tool of coercion’ in international law.

However, it is interesting to note that the intent of the perpetrator of a cyber attack, a crucial element that is baked into American definitions of OCOs, is conspicuously missing from the international law analyses to classify cyber attacks as a ‘use of force’ or ‘armed attack’ – which relies largely on the scale and effects (actual, not intended) of the cyber attack. (see Tallinn Manual 2.0, Rules 69 and 71) The omission of any reference to human skill or judgment in the US’ definition of cyber capabilities too, provides additional insulation from inquiries into the actual intent of the perpetrator of a cyber attack.

At this point in time it is difficult to conceptualize a ‘war’ that is waged exclusively in cyberspace, does not manifest physical effects or spill over into other domains—not just air, land and sea, but also the economy. For this very reason, i.e. the interconnected nature of cyberspace with other domains of where conflict manifests from competing interests, OCCs provide States a strategic military advantage by strengthening the effectiveness of conventional means and methods of warfare and streamlining military communications. However, the increasing dependence of the Government, critical infrastructure as well as businesses on the internet in the networked economy necessarily implies that a failure to develop or acquire cyber capabilities will make regular economic losses and disruptions by way of cyber attacks inevitable.

This leads us to another question worth considering in the context of State hostilities in cyberspace—whether economic losses occasioned by cyber attacks can be considered as a factor in determining whether its scale and effects are comparable to that of a kinetic armed attack?

Both cyber attack and cyber exploitations hold the potential to cause economic losses to the State under attack. Today it is common knowledge that the notorious WannaCry and NotPetya attacks resulted in losses totalling up to billions of dollars. Attacks on financial systems, commercial softwares, platforms or applications that generate economic value, or civilian infrastructure linked closely with the state economy could all fall under this risk. Such attacks can also substantially slow down State functions if the chaos generated within cyber systems spills over into the physical realm.

We must also remember, that any response to this question cuts both ways – if India – or any other nation – wishes to treat economic losses caused by hostile States and other actors in cyberspace as indicative of an unlawful ‘use of force’ or an ‘armed attack’ in cyberspace, we must also be prepared to have our adversaries draw similar conclusions regarding economic losses inflicted upon them, and anticipate retaliatory action.

Given the massive risks to the economy associated with a high incidence of cyber attacks, it would be interesting to observe what direction the debate on offensive cyber capabilities takes with the release of the National Cyber Security Strategy 2020. With India’s cyber ecosystem under development, both the cyber offence and cyber defence capabilities are of immense strategic value and merit a deeper exploration and stricter scrutiny by policymakers.

This question lingers as an especially intriguing one, as the amendments to Appendix III of the ITC-HS classification referred to in our last post have now been taken down from the website of the Directorate General of Foreign Trade, only to be replaced by a sanitized version of the SCOMET list amended on 11.06.2020 – one that includes no reference ‘military offensive cyber operations’ or even ‘cyber’ simpliciter. Even the reference to ‘intrusion software’ under head 8E401 has now been omitted. The version of the SCOMET list that we relied on for our previous post is no longer available on the DGFT website, but for interested researchers, can be downloaded here on CCG’s Blog.

Does India have offensive cyber capabilities?

cyber, attack,hacked word on screen binary code display, hacker

By Gunjan Chawla

While we await the release of the much-anticipated National Cyber Security Strategy 2020 (NCSS), a very significant development in the domestic regulation of foreign trade – by way of an amendment quietly inserted by the Directorate General of Foreign Trade (DGFT) on 11.06.2020, contains an extremely significant indication for the direction we can expect the NCSS document to take.

The Foreign Trade Policy (FTP) is formulated and notified by the DGFT under the statutory authorization provided by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992.  The FTP regulates among many other things, the import and export of certain types of technologies. It also enforces in compliance with India’s obligations under international export control agreements like the Wassenaar Arrangement.

The latest FTP was formulated for the period of 2015-2020, and last revised in December 2017. The FTP is published in three parts – (i) the Policy Document (ii) Handbook of Procedures and (iii) the ITC-HS Classification.

The Indian Trade Classification based on Harmonized System of Coding, better known as the ITC-HS classification system uses eight digit codes to describe and categorize items subject to regulation. Schedule I of the ITC-HS deals with import policy, while Schedule II of the ITC-HS describes the rules and regulations related to export policies.

Appendix III to Schedule II contains a descriptive list for the category of SCOMET (Special Chemicals, Organisms, Materials, Equipment and Technology). The SCOMET list itemises goods, services and technologies used for civilian and military applications, including also some ‘dual-use items’ for export control regulation.

Category 6 of the SCOMET list is the Munitions list, while Category 8 relates to “Special Materials and Related Equipment, Material Processing, Electronics, Computers, Telecommunications, Information Security, Sensors and Lasers, Navigation and Avionics, Marine, Aerospace and Propulsion”.

Under 6A021, which falls under the Munitions list, “software” subject to export control regulations is now defined to include,

“Software” specially designed or modified for the conduct of military offensive cyber operations;

Note 1 6A021.b.5. includes “software” designed to destroy, damage, degrade or disrupt systems, equipment or “software”, specified by Category 6, cyber reconnaissance and cyber command and control “software”, therefor.

Note 2 6A021.b.5. does not apply to “vulnerability disclosure” or to “cyber incident response”, limited to non-military defensive cybersecurity readiness or response.

Note 2 under 6A021 appears as a welcome relief to the information security research community by keeping vulnerability disclosures beyond the purview of export control regulations. However, it is relevant to mention that “vulnerability disclosures” and “cyber incident response” had already been excluded from the purview of export control restrictions in an earlier amendment to the SCOMET list on 03.07.2018.  However, this exception appears not under category 6, but category 8, as an exception to head 8E401 Computers (Technology). Therefore, the exception carved out under 6A021 by the 11.06.2020 amendment is a mere reiteration of the exception already contained under 8E401, inserted by the amendment of 03.07.2018, which reads as follows:

c. “Technology” for the “development” of “intrusion software”.

Note 1: 8E401.a and 8E401.c do not apply to ‘vulnerability disclosure’ or ‘cyber incident response’.

 Note 2: Note 1 does not diminish national authorities’ rights to ascertain compliance with 8E401.a and 8E401.c.

Technical Notes:

1. ‘Vulnerability disclosure’ means the process of identifying, reporting, or communicating a vulnerability to, or analysing a vulnerability with, individuals or organizations responsible for conducting or coordinating remediation for the purpose of resolving the vulnerability.

2. ‘Cyber incident response’ means the process of exchanging necessary information on a cyber security incident with individuals or organizations responsible for conducting or coordinating remediation to address the cyber security incident.

Therefore, our export control regulations may have been cognizant of and sensitive to the need for ensuring free flow of data and information with regards to vulnerability disclosures and cyber incident response systems since 2018. It is also relevant to mention that the previous version of this list dated 24.04.2017 made no references whatsoever to ‘cyber incident response’ or ‘vulnerability disclosure’.

The June 2020 amendment to the SCOMET list is a highly significant development, as this is the first official document that strongly suggests the existenceof offensive cyber capabilities specially designed for military use in the broader ecosystem of tech regulation in India.

While MeitY had made a passing reference to “offensive cyber” in a draft report authored by one of four Committees constituted in February 2018, for the promotion of AI and the development of a regulatory framework. The Report of Group D, the Committee on Cyber Security, Safety, Legal and Ethical Issues briefly speaks of “defensive and offensive AI techniques”. However, this report contained  recommendations that do not carry the force of law. In contrast, the DGFT’s  latest amendment to the SCOMET list has the effect of subjecting the export of such technologies to strict regulatory control by the Government.

This regulatory development stands in contrast to the response of National Cyber Security Coordinator Lt. Gen. Pant in an interview to Medianama on 2 June 2020, only a few days before the date of this amendment to the SCOMET list:

MediaNama: In terms of follow-up to hardware and software procurement, does India procure any software as cyber weapons? Is there a process to import or export them? There has been a discussion at the Open-ended Working Group [OEWG] at the UN regarding global procurement of cyber weapons. What is India’s position, policy on procurement of cyber weapons?

Lt General Pant: No, no. I don’t think anyone will be speaking of cyber weapons, sale or anything like that.

It now remains to be seen whether the National Cyber Security Strategy, yet to be released, will officially acknowledge the existence of ‘offensive cyber capabilities’, if not ‘cyber weapons’ within India’s cyber ecosystem.

Technology and National Security Law and Policy: Seminar Course Curriculum [February-June 2020]

Given the rapidly evolving landscape of international security issues and the challenges and opportunities presented by new and emerging technologies, Indian lawyers and policymakers need to acquire the capacity to engage effectively with national security law and policy. However, curricula in Indian law schools do not engage adequately with issues of national security. National security threats, balance of power, issues of secrecy and political accountability, terrorism and surveillance laws tend to be discussed in a piece-meal manner within various courses or electives.

To fill this knowledge gap within the legal community, the Centre for Communication Governance at National Law University Delhi (CCG-NLU) offered this seminar course to fourth and fifth-year students of the B.A. LL.B. (Hons.) Programme during in February-June 2020..

The course explores interdisciplinary approaches in the study of national security law and policy, with a particular focus on issues in cybersecurity and cyberwarfare. Through this course curriculum, we aim to (1) recognize and develop National Security Law as a discrete discipline of legal studies, and (2) impart basic levels of cybersecurity awareness and inculcate good information security practices among tomorrow’s lawyers.

The curriculum is split into six modules taught over a period of 12 weeks:

  • Module I: Unpacking ‘National Security’
  • Module II: Introduction to Strategic Thinking – Linking Law and Policy
  • Module III: National Security in the Domestic Sphere
  • Module IV: War and National Security in International Law
  • Module V: Cybersecurity, Cyberwarfare and International Law
  • Module VI: Cybersecurity in India

The course outline and reading list can be accessed here:

The Architecture of Cybersecurity Institutions in India

This is an edited excerpt of Part IV and Annexure ‘B’ of CCG’s Comments to the National Security Council Secretariat on the National Cyber Security Strategy 2020 (NCSS 2020). The full text of the Comments can be accessed here.

This consolidated organogram is a depiction of cyber security institutions in India as an inter-ministerial and inter-departmental ecosystem. Different ministries and departments are in charge of different aspects of national security in general and cyber security in particular.

The National Security Advisor (NSA) holds a rank equivalent to a Cabinet Minister in charge of the National Security Council Secretariat (NSCS) and is the apex officer relating to national security. The NSA is also in charge of the National Technical Research Organization (NTRO) which is a technical intelligence agency under the Prime Minister’s Office (PMO). The National Critical Information Infrastructure Protection Centre (NCIIPC) was established under Section 70A of the Information Technology Act, 2000 and functions as a unit of the NTRO. 

The National Cyber Security Coordinator (NCSC) is the nodal officer for issues related to cybersecurity, functioning under the PMO along side the NSCS to coordinate with different agencies like CERT-In at the national level.

Our research reveals that the Ministry of Communications, Ministry of Electronics and Information Technology (MeitY), Ministry of Home Affairs (MHA), Ministry of Defence (MoD) and the Ministry of External Affairs (MEA) are most relevant to the establishment, operation and maintenance of technical and administrative ecosystem that enables cybersecurity. The departmental structure of each of these Ministries is outlined below.


Ministry of Communications

The Ministry of Communications consists of two Departments – (i) Department of Telecommunications (DoT) and the (ii) Department of Posts.

The DoT deals with  (a) issues of policy, licensing and coordination matters relating to telegraphs, telephones, wireless, data, facsimile and telematic services and other like forms of communications, (b) standardization, research and development in telecommunications, (c) procurement of stores and equipment required by the Department of Telecommunications and (d) administration of laws including the Indian Telegraph Act, 1885 (13 of 1885), the Indian Wireless Telegraphy Act, 1933 (17 of 1933), the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), among others. Within its ambit is also the Digital Communications Commission, which is responsible for implementing the Government’s telecom policy in all matters relating to telecommunication.

Ministry of Electronics and Information Technology

The Ministry for Electronics and Information Technology (MeitY) deals with all policy matters relating to information technology, electronics and the internet (barring issues relating to licensing of Internet Service Providers, which fall within the mandate of the DoT). Its major functions include (a) the administration of matters relating to cyber laws including the Information and Technology Act, 2000, (b) Promotion of standardization, testing and quality in IT and standardization of procedure for IT application and Tasks and (c) digital initiatives including Digital India, among others.

Significantly, the Indian Computer Emergency Response Team (CERT-In) as well as the Unique Identification Authority of India (UIDAI) are both within its ambit. The Cyber Swacchta Kendra (Botnet Cleaning and Malware Analysis Center) functions under CERT-In.

Ministry of Home Affairs

The Ministry of Home Affairs (MHA) discharges multifarious responsibilities, the important among them being – internal security, border management, Centre-State relations, administration of Union Territories, management of Central Armed Police Forces, disaster management, etc. The MHA continuously monitors the internal security situation, issues appropriate advisories, shares intelligence inputs, extends manpower and financial support, guidance and expertise to the State Governments for maintenance of security, peace and harmony.

Among others, the MHA’s Cyber and Information Security Division (consisting of the Cyber Crime Wing, Cyber Security Wing and Monitoring Unit) as well as some wings of the Department of Internal Security including the Modernization Division of the Police and the Counter Terrorism and Counter Radicalization Division have particular relevance to cyber security.

The Indian Cyber Crime Coordination Centre (I4C) was established as a scheme in 2018 to combat cyber crime in a coordinated and effective manner.

Ministry of Defence

The MoD is comprised of four Departments – Department of Defence (DOD), Department of Defence Production (DDP), Defence Research & Development Organisation (DRDO) and Department of Ex-Servicemen Welfare and also Finance Division.

A new Department of Military Affairs has been created recently, and is headed by the Chief of Defence Staff, General Bipin Rawat. Departments that have particular relevance to cybersecurity, including the newly established Defence Cyber Agency are highlighted.

Ministry of External Affairs

The Ministry of External Affairs (MEA) is responsible for all matters relating to India’s external affairs including consular functions. Departments / activities that have relevance to cybersecurity are highlighted in purple, including international security, counter terrorism and others. The New Emerging and Strategic Technologies (NEST) Division was recently set up as the nodal point for all matters connected to new and emerging technologies including exchange of views with foreign governments and coordination with domestic ministries and departments.  News reports indicate that a major restructuring of the MEA is in the offing.

India’s Cybersecurity Budget FY 2013-14 to FY 2019-20: Analysis of Budgetary Allocations for Cybersecurity and Related Activities

This is an edited excerpt of Part V and Annexure ‘C’ of CCG’s Comments to the National Security Council Secretariat on the National Cyber Security Strategy 2020 (NCSS 2020). The full text of the Comments can be accessed here.

Note on Research Methodology

CCG compiled the data on allocations (budgeted and revised) and actual expenditure from the Demands for Grants of Ministries as approved by Parliament and presented in the Annual Expenditure Budget of various ministries and their respective departments which are related to cybersecurity from FY 2013-17 to FY 2019-20. 

The departments have been identified from publicly available information represented in the organograms presented as Annexure ‘B’. We understand a ‘relevant department’ to mean those departments which are either directly related to cybersecurity and/or support the functioning of the technical and security aspects of internet governance at large.

We have then identified those budget heads under the Union Budgets for FY 2013-14 through FY 2019-2020, which correspond most closely to the departments identified and highlighted in Annexure ‘B’ to calculate the total allocation to ministries for cybersecurity-related activities. We then analyse this data in under four broad categories:

(I) Department Wise Allocation: The departments that are directly related to the expenditure for cybersecurity are calculated under this heading. Various expenditures under Ministry of Electronics and Information Technology (MEITY), Department of Telecommunication (DOT), and Ministry of Home Affairs are tabulated for this. 

Under MeitY, we have included the budget heads for

  1. Computer Emergency Response Team (CERT-IN),
  2. Centre for Development of Advanced Computing (C-DAC),
  3. Centre for Materials for Electronics and IT (C-MET),
  4. Society for Applied Microwave Electronics Engineering and Research (SAMEER),
  5. Standardization Testing and Quality Certification (STQC),
  6. Controller of Certifying Authorities (CCA), and
  7. Foreign Trade and Export Promotion and
  8. Certain components of the Digital India Initiative, namely:
  • Manpower Development,
  • National Knowledge Network,
  • Promotion of electronics and IT HW manufacturing,
  • Cybersecurity projects (which includes National Cyber Coordination centre and others),
  • Research and Development in Electronics/IT,
  • Promotion of IT/ITeS industries,
  • Promotion of Digital Payment, and
  • Pradhan Mantri Digital Saksharta Abhiyan (PMGDISHA).

Under Ministry of Communication, our focus was only on the Department of Telecommunication. We considered the budget allocated to the following, to come up with the total Department budget. These heads are:

  1. Telecom Regulatory Authority of India (TRAI),
  2. Human Resource Management under National Institute of Communication Finance,
  3. Wireless Planning and Coordination,
  4. Telecom Engineering Centre,
  5. Technology Development and Investment Promotion,
  6. South Asia Sub-Regional Economic Cooperation (SASEC) under Information Highway Project,
  7. Telecom Testing and Security Certification Centre,
  8. Telecom Computer Emergency Response Team,
  9. Central Equipments Identity Register (CEIR),
  10. 5G Connectivity Test Bed,
  11. Promotion of Innovation and Incubation of Future Technologies for Telecom Sector,
  12. Centre for Development of Telematics (C-DoT), and
  13. Labour, Employment and Skill Development.

Under Ministry of Home Affairs, the funds allocated for the following budget heads have been included:

  1. Education, Training and Research purposes,
  2. Criminology and Forensic Science,
  3. Modernisation of Police Forces and Crime and Criminal Tracking Network and Systems (CCTNS),
  4. Indian Cyber Crime Coordination Centre, and
  5. Technical and Economic Cooperation with Other Countries.

All these budget heads were tabulated to come up with the total for department wise allocation. Along with departments mentioned under ‘Supporting Departments’, all these departments were again classified on the basis of their functions and activities,  and analysed under (III).

(II) Supporting Department Wise Allocation: While certain expenditures of the Ministry of Defence, Ministry of External Affairs, Department of Telecommunication, and Ministry of Home Affairs can potentially be used for cybersecurity-related activities, but it it is not possible to infer from the Demands for Grants, the share of cyber in the total allocation, we have treated them as ‘allocations to supporting departments’. In this data, the total funds indicated may not be directly related to cybersecurity efforts, but they contribute towards the larger security and governance framework, which enables the creation of a secure ecosystem for cyber. These headings are tabulated under this section.

Under Ministry of Defence, the following heads were considered to contribute towards the larger security and governance framework in cyberspace:

  1. Navy/Joint Staff,
  2. Ordnance Factories R&D,
  3. Research and Development, including the Research and Development component of R&D head,
  4. Capital Outlay on R&D, and
  5. Technology Development and Assistance for Prototype Development under Make Procedure

Under Ministry of External Affairs, we considered the following heads as important contributors:

  1. The Special Diplomatic Expenditure,
  2. Expenditure for International Cooperation,
  3. Expenditure for Technical and Economic Cooperation with other Countries, and
  4. Other Expenditure of Ministry

Under Department of Telecommunication again, there were several heads that we considered not to be directly related to cybersecurity, but they did significantly contribute towards it. These include allocations for

  1. Defence Spectrum,
  2. Capital Outlay on Telecommunication and Electronic Industries,
  3. Capital Outlay on Other Communication Services, and
  4. Universal Service Obligation Fund (USOF)

Under Ministry of Home Affairs, the departments that are involved with defence and intelligence along with law enforcement are important to be considered for cybersecurity. Thus we included the allocations for

  1. Intelligence Bureau,
  2. NATGRID,
  3. Delhi Police, and
  4. Capital Outlay on Police.

(III) Activity Wise Allocation: For further analysis, we have categorized the expenditures mentioned in Department Wise Allocation into five categories, each of which have been identified as constituent elements of the three Pillars of Strategy namely:

  1. Human Resource Development Component (Strengthen)
  2. Technical Research & Development Component, Capacity Building (Strengthen/Synergize)
  3. International Cooperation and Investment Promotion Component (Secure/Synergise)
  4. Standardisation, Quality Testing and Certification Component (Strengthen)
  5. Active Cyber Incident Response/ Defence Operations and Security Component (Secure/Strengthen)      

The total for these are calculated to identify if any trends or patterns emerge in expenditure by the ministries. Apart from the ministries covered in classifications (I) and (II), we have also included budgets of two other heads/departments. Namely, these are (i) the allocation towards corporate data management under the authority of the Ministry of Corporate Affairs, which has been included in category (5) indicated above and (ii) the allocation towards technical and economic cooperation with other countries for the Department of Economic Affairs under the Ministry of Finance, which has been included in category (3) indicated above.

(IV) Ministries share over Financial Year: The total value tabulated in Department wise allocation and supporting department wise allocation for the ministries is then used to calculate the share of budget allocated to Cyber Security and related activities with respect to the total budget allocation of ministries. The ministries taken into account, which contribute significantly to Cyber Security and related activities are:

  1. Department of Telecommunication (under the Ministry of Communications),
  2. Ministry of Defence,
  3. Ministry of External Affairs,
  4. Ministry of Electronics and Information Technology,
  5. Ministry of Home Affairs, and
  6. Department of Science and Technology (under the Ministry of Science and Technology).

Ministry-wise Allocations and Expenditure on Cybersecurity and Related Activities FY 2013-14 to FY 2019-20

Figure 9 depicts actual expenditure (from FY 2013-14 to FY 2017-18), the Revised Expenditure (RE) for FY 2018-19 and Budgeted Expenditure for FY 2019-20. With the exception of FY 2016-17, we can see a clear trend of increasing allocations for expenditure towards cyber-security related activities, especially for the DoT. It is relevant to point out that this representation also includes the expenditure on Departments playing a supporting role in cybersecurity activities, such as the IDS/Joint Staff and R&D under the Ministry of Defence (MoD) as well as the MEA’s expenditure on international technical cooperation. As the expenditure incurred on cybersecurity related activities alone cannot be inferred from these budget heads, they have been treated as Departments playing a supporting role for cybersecurity efforts and included in overall expenditure.

Figure 9: Ministry-wise Total Expenditure on Cybersecurity and Related Activities
FY 2013-14 to FY 2019-20

Figure 10 is a narrower subset of the expenses indicated in Figure 9. It represents the allocations to Departments in Ministries that have been entrusted with core activities that contribute towards cybersecurity operations, R&D, e-Governance and internet governance at large. These include, to name a few, the promotion of electronics and IT hardware manufacturing and other initiatives such as Digital India, C-DAC, NCCC and other similar programmes under MeitY, TRAI, C-DoT and the 5G test bed under the authority of the DoT and MHA’s expenses towards modernization of police forces, forensics, and initiatives such as the Indian Cyber Crime Coordination Centre.

Figure 10 reveals an immediate upsurge in such allocations in the time period during and immediately after the formulation of the National Cyber Security Policy 2013, after which the allocations begin to dwindle in FY 2014-15. We can also note that with the exception of FY 2015-16 actual expenditure is consistently lower than the Budgeted Expenditure allocated to all these Ministries for cybersecurity related activities.

Figure 10: Ministry-wise Total Expenditure on Cybersecurity and Related Activities
FY 2013-14 to FY 2019-20

It is interesting to note that if we convert the absolute figures represented in Figure 10 into percentages, and represent the same data set as such, it reveals a remarkable consistency and a clear pattern emerges in burden-sharing between these three Ministries (MHA, MeitY and DoT under the Ministry of Communications).

Figure 11 depicts the same allocations indicated as absolute figures in Figure 10 as percentages of the total expenditure on core cybersecurity activities. It is clear that the MHA consistently bears the bulk of expenses on cyber security related activities, clearly with an emphasis on cyber crimes. The remaining half seems to be divided between MeitY and DoT more or less equally. FY 2015-16 allocations and actual expenditure in FY 2014-15 is the only exception to this equal distribution.

Figure 11: Ministry-wise Total Allocation for Cybersecurity and Related Activities
FY 2013-14 to FY 2019-20

Activity-wise Allocation and Expenditure on Cybersecurity

To further analyse how these budgetary allocations are being utilized, we have re-categorized the expenditures mentioned in Department/Ministry wise allocation into five categories, each of which have been identified as constituent elements of the three Pillars of Strategy namely: 

  1. Human Resource Development Component (Strengthen)
  2. Technical Research and Development Component, Capacity Building (Strengthen/Synergize)
  3. International Cooperation and Investment Promotion Component (Secure/Synergise)
  4. Standardization, Quality Testing and Certification Component (Strengthen)
  5. Active Cyber Incident Response/ Cyber Defence Operations and Security Component (Secure/Strengthen)

The total expenses incurred for these allocations are calculated to identify if any trends or patterns emerge to identify which activities are being prioritized according to the actual expenditure incurred by the relevant ministries. It is important to note that none of these categories include any expenses earmarked for cyber defence operations under the MoD, as the budget heads do not permit drawing such an inference in its current format.

In this reclassification, we have included one budget head each for two other Departments that do not figure in the data represented in Figures 9, 10 or 11. Namely, these are (a) the allocation towards corporate data management under the authority of the Ministry of Corporate Affairs, which has been included in category (5) indicated above and (b) the allocation towards technical and economic cooperation with other countries for the Department of Economic Affairs under the Ministry of Finance, which has been included in category (3) indicated above.

Figure 12 represents activity-wise trends in these Ministries’ actual expenditure. The figures for FY 2018-19 and FY 2019-20 represent the RE and BE for those years, respectively. It is not surprising that the expenditure on international cooperation and investment promotion towers over all other activities, as the allocated expenses would contribute to overall cooperation efforts at the international level and the promotion of investment broadly, and not only cybersecurity. Nonetheless, these are crucial contributions to enhancing India’s cybersecurity posture at home and abroad. For a clearer analysis, we remove the indicator for expenses towards international cooperation and investment promotion in Figure 13.

Figure 12: Activity-wise Expenditure for Cyber Security
FY 2013-14 to FY 2019-20
Figure 13: Activity-wise Expenditure for Cybersecurity FY 2013-14 to FY 2019-20 (excluding international cooperation and investment promotion)

From Figure 13, we can clearly infer which of the four activities at the core of the Government’s cybersecurity efforts are being prioritized in terms of allocation of budgetary resources. Clearly, emphasis on equipment testing and certification needs to be sharpened. There is an apparent tension between the funds that are made available for active cybersecurity operations and programmes on the one hand, and investments in human resource development on the other.

We submit that in both these areas, the Government must look to the private sector to create synergies and supplement the financial resources available for these particular activities. We also recommend that the expenditure earmarked for quality testing, development of technical standards and certification should be increased, and accorded greater priority than before.

Share of Ministries’ Budget Allocated to Cybersecurity and Related Activities

If we try to contextualize the utilization of funds made available for cybersecurity-related activities against the total allocations to relevant Ministries, there is no identifiable trend in expenditure patterns of the MEA, MeitY and DoT. Figure 14 represents the total expenditure on cybersecurity-related activities as a percentage of the total expenses allocated to the relevant Ministry. Cybersecurity-related activities appear to be fluctuating in terms of the priority accorded to them over time, in the diversion of financial resources towards this area. The contribution of the Department of Science and Technology towards R&D in cybersecurity has been consistently low, almost negligible. This has only changed with the establishment of the National Mission on Interdisciplinary Cyber Physical Systems in FY 2018-19. has been MHA’s share of expenditure on cybersecurity activities appears relatively more consistent, and could potentially be leveraged to create synergies for the rationalization of expenditure across Ministries.

Figure 14: Share of Cybersecurity-related Activities in Total Budget Allocated to Ministries

Budget for NCSS 2020?

In anticipation of the National Cyber Security Strategy 2020 expected to be released soon, we will be closely monitoring the the Union Budget for FY 2020-21 for fresh allocations to the relevant departments indicated in our analysis. We will also be on the lookout for fresh allocations that may be relevant to various components of the NCSS 2020. Watch this space for more on India’s Cybersecurity Budget 2020, coming soon!

CCG’s Comments to the National Security Council Secretariat on the National Cyber Security Strategy 2020

The Centre for Communication Governance at the National Law University Delhi (CCG) is grateful to the National Security Council Secretariat for this opportunity to make meaningful contributions to its mandate of formulating a futuristic National Cyber Security Strategy 2020 (NCSS). In response to the Call for Comments CCG apart from the comments below, CCG has separately submitted detailed comments to the Office of the National Cyber Security Coordinator.

Our comments are a result of original and thorough legal and policy research which draws upon multiple primary sources of information, including applicable domestic and international law and precedents, and a comparative study of the cyber security strategy and policy documents of 16 other countries. Secondary sources such as news reports, statistics on cybercrime and malicious cyber activity compiled and released by various Government departments and agencies and data on budgetary allocations released by the Union Government have also been relied on.

This submission is presented in six parts, supplemented by three annexures that provide insight into our sources, analysis and research methodology.

Part I introduces the background in which this strategy is being formulated, and presents a principled approach to the formulation of cybersecurity policy, that is driven by a coherent strategic framework constructed under the NCSS to guide it.

Part II presents an analysis of the landscape of existing and emergent threats that pose a risk to the cybersecurity of the entire nation. We do so with the objective of identifying areas that need to be accorded a higher priority in the formulation of the NCSS.

Parts III, IV and V correspond to the three pillars of strategy identified in the Call for Comments. Part III deals with the horizontal dimension of strategy and unpacks the contents of the first pillar, i.e., “Secure”, wherein we present for the consideration of the Secretariat, an original three-tiered model of the ‘national cyberspace’ as a roadmap to cyber sovereignty. We submit for consideration for the Secretariat, the adoption of the principle of peaceful uses of cyberspace to align with the nation’s goals of sustainable economic development, while being mindful of the gradual militarization of cyberspace by both state and non-state actors.

Part IV deals with the “Strengthen” pillar in which CCG examines the existing architecture for cybersecurity to analyse the vertical dimensions of strategy. Herein, we propose measures to strengthen institutions, process and capabilities relevant for cyber security.

Part V deals with the third pillar, namely, “Synergise”, which explains how the horizontal and vertical dimensions of the strategy can be integrated in order to optimize levels of inherent friction that could hinder the achievement of strategic and policy goals. We propose that synergies need to be identified and/or created at three levels. First, at the inter-ministerial level, among the government departments and agencies. Second, at the national level, for enhanced cooperation and strategic partnerships between the public and private sectors. Third, at the international level for enhanced cooperation and strategic partnerships with like-minded nations, geared towards building stronger national defences in cyberspace. In this part, we take the Government’s inclination to treat data a “public good” or “societal commons” to its logical conclusion and accordingly, propose a principled, common-but-differentiated-responsibility model between multiple stakeholders in the cybersecurity ecosystem for grounding public private partnerships and pooling of financial resources.

Part VI concludes this submission and presents the major findings, suggestions and recommendations of this submission.

The full text of the comments is available here.

Respond to the cyber intrusion, within law

An invasion of sovereignty is not the same as an act of war. India should take cautious countermeasures.

This post originally appeared on Hindustan Times on November 14, 2019

The news of cyber intrusions into the Kudankulam Nuclear Power Plant, and the Indian Space Research Organisation (Isro) shook the cyber security apparatus. Pukhraj Singh, a cybersecurity expert, tweeted about the incident after alerting the authorities. In his opinion, the intrusion constituted a casus belli in the Indian cyberspace, meaning, an act or situation that provokes or justifies a war.

The factual matrix of this cyber “attack”, however, does not add up to a situation where a sovereign nation may justifiably go to war, in the conventional sense of the term.

In his analysis, Singh is correct to point out the absence of a cyber deterrence strategy, which permitted the malware to linger in protected systems for months after they were first detected. But I disagree with his advocacy for a departure from “rules-based war fighting”, towards “pre-emptive, extrajudicial maneuvering” within the adversary’s battle space.

Inviting as it may seem to follow in the footsteps of former US official, Richard Danzig’s, “defend forward” doctrine, it is apparent that this position advocates action that is overtly illegal in international law. The so-called “right to pre-emptive self-defence” is a creation of American warfighting doctrine and is not a norm of customary international law (CIL).

Due to the hybrid nature of cyber operations and international legal norms in their current form, governments all over the world are grappling with “below-the-threshold” operations in cyberspace. The use of military force is prohibited for States, who remain the principal subjects of the international legal order. According to the United Nations Charter provisions that are also considered CIL norms, a nation State may lawfully resort to the use of force in the exercise of its inherent right to self-defence against an ‘armed attack’ by another state.

According to the Tallinn Manual 2.0, a cyber intrusion or attack is considered an armed attack if its physical manifestations cause damage or consequences that are similar, or at least comparable, to the use of kinetic force. Without physical damage, a cyber theft of data in the eyes of international law, even by a State, does not amount to an armed attack and no right to use kinetic military force in self-defence arises.

However, this does not imply that there is no remedy against what is clearly an invasion of the country’s sovereignty and a dangerous intrusion into our critical information infrastructure. We can lawfully take cautious countermeasures against such intrusions to ensure that the intrusion ceases and leverage domestic laws and institutions to crystallise India’s position on international law norms that we consider non-binding.

The Tallinn Manual is neither a binding document, nor universally considered to be the definitive expression of CIL norms. Yet, it is a valuable resource to identify rules where India’s interests in cyber space demand interpretations that depart from Western interpretations tailored to serve Western interests. India has the prerogative to object to the application of a rule at odds with our national security interests.

Despite speculations that the malware caused the power plant to shut down, the government has maintained that it was due to a mechanical issue. Similarly, some have insinuated that the presence of the malware in Isro systems was temporally proximate to the unsuccessful landing of Chandrayaan–2. However, no such statements have been forthcoming from the government.

Without physical damage or disruption, the harm caused at this stage appears to be exfiltration of data, which falls within the domain of espionage. Espionage, while illegal in domestic law, operates in a grey zone in international law, where it is neither legal, nor illegal. Singh illustrates how a cyber espionage operation can be quickly weaponised into a destructive kinetic attack, depending on the attacker’s intent. However, the same is true of operations that embed spies and covert operatives in foreign territory. Without identifying the attacker, one cannot speculate their intent.

Technical attribution efforts have led to the North Korea-based Lazarus group. However, Singh asserts that false flag operations are all too common, and deeper digging could unearth unusual suspects. He adds that our response must be premised on “full-spectrum cyber attribution”, but this is only possible by carrying out a full-scale investigation that can reveal with some degree of certainty, the identity and affiliations of the intruder. Unless such attribution efforts conclusively point towards a State actor, the intrusion can be treated an act of cyber terrorism, defined under Section 66F of the Information Technology Act, 2000. Depending on the information exfiltrated, offences under the Atomic Energy Act, 1962 can also be made out. If an FIR is registered under these provisions, the National Investigation Agency (NIA) would be charged with this investigation. Such an investigation would be an opportunity to strengthen our counter-intelligence capabilities in cyberspace.

However, the investigation of these acts by the NIA risks exposing fault lines that go deeper than the overlap between various institutions, blurring the line between military and civilian responses to cyber intrusions.

In order to pivot our national security doctrine around cyber offence and defence, we need to legitimise the nation’s intelligence apparatus by law, so that it may act as the bridge between the civilian and the military dimensions of cyber operations. This will serve a dual purpose — first, to clarify the scope and extent of authority of our intelligence agencies within and outside our borders, and second, to provide opinio juris on the legality of State practices considered essential to protect India’s sovereignty in cyberspace.

Thus, before we hasten to abandon rules-based warfighting for pre-emptive, extra-judicial maneuvering, let’s heed the Research and Analysis Wing’s (R&AW’s) motto: The law protects when it is protected.

[September 30-October 7] CCG’s Week in Review Curated News in Information Law and Policy

Huawei finds support from Indian telcos in the 5G rollout as PayPal withdrew from Facebook’s Libra cryptocurrency project; Foreign Portfolio Investors moved MeitY against in the Data Protection Bill; the CJEU rules against Facebook in case relating to takedown of content globally; and Karnataka joins list of states considering implementing NRC to remove illegal immigrants – presenting this week’s most important developments in law, tech and national security.

Digital India

  • [Sep 30] Why the imminent global economic slowdown is a growth opportunity for Indian IT services firms, Tech Circle report.
  • [Sep 30] Norms tightened for IT items procurement for schools, The Hindu report.
  • [Oct 1] Govt runs full throttle towards AI, but tech giants want to upskill bureaucrats first, Analytics India Magazine report.
  • [Oct 3] – presenting this week’s most important developments in law, tech and national security. MeitY launches smart-board for effective monitoring of the key programmes, The Economic Times report.
  • [Oct 3] “Use human not artificial intelligence…” to keep a tab on illegal constructions: Court to Mumbai civic body, NDTV report.
  • [Oct 3] India took 3 big productivity leaps: Nilekani, Livemint report.
  • [Oct 4] MeitY to push for more sops to lure electronic makers, The Economic Times report; Inc42 report.
  • [Oct 4] Core philosophy of Digital India embedded in Gandhian values: Ravi Shankar Prasad, Financial Express report.
  • [Oct 4] How can India leverage its data footprint? Experts weigh in at the India Economic Summit, Quartz report.
  • [Oct 4] Indians think jobs would be easy to find despite automation: WEF, Tech Circle report.
  • [Oct 4] Telangana govt adopts new framework to use drones for last-mile delivery, The Economic Times report.
  • [Oct 5] Want to see ‘Assembled in India’ on an iPhone: Ravi Shankar Prasad, The Economic Times report.
  • [Oct 6] Home market gets attractive for India’s IT giants, The Economic Times report.

Internet Governance

  • [Oct 2] India Govt requests maximum social media content takedowns in the world, Inc42 report; Tech Circle report.
  • [Oct 3] Facebook can be forced to delete defamatory content worldwide, top EU court rules, Politico EU report.
  • [Oct 4] EU ruling may spell trouble for Facebook in India, The Economic Times report.
  • [Oct 4] TikTok, TikTok… the clock is ticking on the question whether ByteDance pays its content creators, ET Tech report.
  • [Oct 6] Why data localization triggers a heated debate, The Economic Times report.
  • [Oct 7] Sensitive Indian govt data must be stored locally, Outlook report.

Data Protection and Privacy

  • [Sep 30] FPIs move MeitY against data bill, seek exemption, ET markets report, Inc42 report; Financial Express report.
  • [Oct 1] United States: CCPA exception approved by California legislature, Mondaq.com report.
  • [Oct 1] Privacy is gone, what we need is regulation, says Infosys Kris Gopalakrishnana, News18 report.
  • [Oct 1] Europe’s top court says active consent is needed for tracking cookies, Tech Crunch report.
  • [Oct 3] Turkey fines Facebook $282,000 over data privacy breach, Deccan Herald report.

Free Speech

  • [Oct 1] Singapore’s ‘fake news’ law to come into force Wednesday, but rights group worry it could stifle free speech, The Japan Times report.
  • [Oct 2] Minister says Singapore’s fake news law is about ‘enabling’ free speech, CNBC report.
  • [Oct 3] Hong Kong protests: Authorities to announce face mask ban, BBC News report.
  • [Oct 3] ECHR: Holocaust denial is not protected free speech, ASIL brief.
  • [Oct 4] FIR against Mani Ratnam, Adoor and 47 others who wrote to Modi on communal violence, The News Minute report; Times Now report.
  • [Oct 5] UN asks Malaysia to repeal laws curbing freedom of speech, The New Indian Express report.
  • [Oct 6] When will our varsities get freedom of expression: PC, Deccan Herald report.
  • [Oct 6] UK Government to make university students sign contracts limiting speech and behavior, The Times report.
  • [Oct 7] FIR on Adoor and others condemned, The Telegraph report.

Aadhaar, Digital IDs

  • [Sep 30] Plea in SC seeking linking of social media accounts with Aadhaar to check fake news, The Economic Times report.
  • [Oct 1] Why another omnibus national ID card?, The Hindu Business Line report.
  • [Oct 2] ‘Kenyan court process better than SC’s approach to Aadhaar challenge’: V Anand, who testified against biometric project, LiveLaw report.
  • [Oct 3] Why Aadhaar is a stumbling block in Modi govt’s flagship maternity scheme, The Print report.
  • [Oct 4] Parliament panel to review Aadhaar authority functioning, data security, NDTV report.
  • [Oct 5] Could Aahdaar linking stop GST frauds?, Financial Express report.
  • [Oct 6] Call for liquor sale-Aadhaar linking, The New Indian Express report.

Digital Payments, Fintech

  • [Oct 7] Vision cash-lite: A billion UPI transactions is not enough, Financial Express report.

Cryptocurrencies

  • [Oct 1] US SEC fines crypto company Block.one for unregistered ICO, Medianama report.
  • [Oct 1] South Korean Court issues landmark decision on crypto exchange hacking, Coin Desk report.
  • [Oct 2] The world’s most used cryptocurrency isn’t bitcoin, ET Markets report.
  • [Oct 2] Offline transactions: the final frontier for global crypto adoption, Coin Telegraph report.
  • [Oct 3] Betting on bitcoin prices may soon be deemed illegal gambling, The Economist report.
  • [Oct 3] Japan’s financial regulator issues draft guidelines for funds investing in crypto, Coin Desk report.
  • [Oct 3] Hackers launch widespread botnet attack on crypto wallets using cheap Russian malware, Coin Desk report.
  • [Oct 4] State-backed crypto exchange in Venezuela launches new crypto debit cards, Decrypt report.
  • [Oct 4] PayPal withdraws from Facebook-led Libra crypto project, Coin Desk report.
  • [Oct 5] Russia regulates digital rights, advances other crypto-related bills, Bitcoin.com report.
  • [Oct 5] Hong Kong regulates crypto funds, Decrypt report.

Cybersecurity and Cybercrime

  • [Sep 30] Legit-looking iPhone lightening cables that hack you will be mass produced and sold, Vice report.
  • [Sep 30] Blackberry launches new cybersecurity development labs, Infosecurity Mgazine report.
  • [Oct 1] Cybersecurity experts warn that these 7 emerging technologies will make it easier for hackers to do their jobs, Business Insider report.
  • [Oct 1] US government confirms new aircraft cybersecurity move amid terrorism fears, Forbes report.
  • [Oct 2] ASEAN unites to fight back on cyber crime, GovInsider report; Asia One report.
  • [Oct 2] Adopting AI: the new cybersecurity playbook, TechRadar Pro report.
  • [Oct 4] US-UK Data Access Agreement, signed on Oct 3, is an executive agreement under the CLOUD Act, Medianama report.
  • [Oct 4] The lack of cybersecurity talent is ‘a  national security threat,’ says DHS official, Tech Crunch report.
  • [Oct 4] Millions of Android phones are vulnerable to Israeli surveillance dealer attack, Forbes report; NDTV report.
  • [Oct 4] IoT devices, cloud solutions soft target for cybercriminals: Symantec, Tech Circle report.
  • [Oct 6] 7 cybersecurity threats that can sneak up on you, Wired report.
  • [Oct 6] No one could prevent another ‘WannaCry-style’ attack, says DHS official, Tech Crunch report.
  • [Oct 7] Indian firms rely more on automation for cybersecurity: Report, ET Tech report.

Cyberwarfare

  • [Oct 2] New ASEAN committee to implement norms for countries behaviour in cyberspace, CNA report.

Tech and National Security

  • [Sep 30] IAF ready for Balakot-type strike, says new chief Bhadauria, The Hindu report; Times of India report.
  • [Sep 30] Naval variant of LCA Tejas achieves another milestone during its test flight, Livemint report.
  • [Sep 30] SAAB wants to offer Gripen at half of Rafale cost, full tech transfer, The Print report.
  • [Sep 30] Rajnath harps on ‘second strike capability’, The Shillong Times report.
  • [Oct 1] EAM Jaishankar defends India’s S-400 missile system purchase from Russia as US sanctions threat, International Business Times report.
  • [Oct 1] SC for balance between liberty, national security, Hindustan Times report.
  • [Oct 2] Startups have it easy for defence deals up to Rs. 150 cr, ET Rise report, Swarajya Magazine report.
  • [Oct 3] Huawei-wary US puts more pressure on India, offers alternatives to data localization, The Economic Times report.
  • [Oct 4] India-Russia missile deal: What is CAATSA law and its implications?, Jagran Josh report.
  • [Oct 4] Army inducts Israeli ‘tank killers’ till DRDO develops new ones, Defence Aviation post report.
  • [Oct 4] China, Russia deepen technological ties, Defense One report.
  • [Oct 4] Will not be afraid of taking decisions for fear of attracting corruption complaints: Rajnath Singh, New Indian Express report.
  • [Oct 4] At conclave with naval chiefs of 10 countries, NSA Ajit Doval floats an idea, Hindustan Times report.
  • [Oct 6] Pathankot airbase to finally get enhanced security, The Economic Times report.
  • [Oct 6] rafale with Meteor and Scalp missiles will give India unrivalled combat capability: MBDA, The Economic Times report.
  • [Oct 7] India, Bangladesh sign MoU for setting up a coastal surveillance radar in Bangladesh, The Economic Times report; Decaan Herald report.
  • [Oct 7] Indian operated T-90 tanks to become Russian army’s main battle tank, EurAsian Times report.
  • [Oct 7] IAF’s Sukhois to get more advanced avionics, radar, Defence Aviation post report.

Tech and Law Enforcement

  • [Sep 30] TMC MP Mahua Mitra wants to be impleaded in the WhatsApp traceability case, Medianama report; The Economic Times report.
  • [Oct 1] Role of GIS and emerging technologies in crime detection and prevention, Geospatial World.net report.
  • [Oct 2] TRAI to take more time on OTT norms; lawful interception, security issue now in focus, The Economic Times report.
  • [Oct 2[ China invents super surveillance camera that can spot someone from a crowd of thousands, The Independent report.
  • [Oct 4] ‘Don’t introduce end-to-end encryption,’ UK, US and Australia ask Facebook in an open letter, Medianama report.
  • [Oct 4] Battling new-age cyber threats: Kerala Police leads the way, The Week report.
  • [Oct 7] India govt bid to WhatsApp decryption gets push as UK,US, Australia rally support, Entrackr report.

Tech and Elections

  • [Oct 1] WhatsApp was extensively exploited during 2019 elections in India: Report, Firstpost report.
  • [Oct 3] A national security problem without a parallel in American democracy, Defense One report.

Internal Security: J&K

  • [Sep 30] BDC polls across Jammu, Kashmir, Ladakh on Oct 24, The Economic Times report.
  • [Sep 30] India ‘invaded and occupied Kashmir, says Malaysian PM at UN General Assembly, The Hindu report.
  • [Sep 30] J&K police stations to have CCTV camera surveillance, News18 report.
  • [Oct 1] 5 judge Supreme court bench to hear multiple pleas on Article 370, Kashmir lockdown today, India Today report.
  • [Oct 1] India’s stand clear on Kashmir: won’t accept third-party mediation, India Today report.
  • [Oct 1] J&K directs officials to ensure all schools reopen by Thursday, NDTV report.
  • [Oct 2]] ‘Depressed, frightened’: Minors held in Kashmir crackdown, Al Jazeera report.
  • [Oct 3] J&K: When the counting of the dead came to a halt, The Hindu report.
  • [Oct 3] High schools open in Kashmir, students missing, The Economic Times report.
  • [Oct 3] Jaishanakar reiterates India’s claim over Pakistan-occupied Kashmir, The Hindu report.
  • [Oct 3] Normalcy prevails in Jammu and Kashmir, DD News report.
  • [Oct 3] Kashmiri leaders will be released one by one, India Today report.
  • [Oct 4] India slams Turkey, Malaysia remarks on J&K, The Hindu report.
  • [Oct 5] India’s clampdown hits Kashmir’s Silicon Valley, The Economic Times report.
  • [Oct 5] Traffic cop among 14 injured in grenade attack in South Kashmir, NDTV report; The Economic Times report.
  • [Oct 6] Kashmir situation normal, people happy with Article 370 abrogation: Prkash Javadekar, Times of India report.
  • [Oct 7] Kashmir residents say police forcibly taking over their homes for CRPF troops, Huffpost India report.

Internal Security: Northeast/ NRC

  • [Sep 30] Giving total control of Assam Rifles to MHA will adversely impact vigil: Army to Govt, The Economic Times report.
  • [Sep 30] NRC list impact: Assam’s foreigner tribunals to have 1,600 on contract, The Economic Times report.
  • [Sep 30] Assam NRC: Case against Wipro for rule violation, The Hindu report; News18 report; Scroll.in report.
  • [Sep 30] Hindu outfits demand NRC in Karnataka, Deccan Chronicle report; The Hindustan Times report.
  • [Oct 1] Centre extends AFPSA in three districts of Arunachal Pradesh for six months, ANI News report.
  • [Oct 1] Assam’s NRC: law schools launch legal aid clinic for excluded people, The Hindu report; Times of India report; The Wire report.
  • [Oct 1] Amit Shah in Kolkata: NRC to be implemented in West Bengal, infiltrators will be evicted, The Economic Times report.
  • [Oct 1] US Congress panel to focus on Kashmir, Assam, NRC in hearing on human rights in South Asia, News18 report.
  • [Oct 1] NRC must for national security; will be implemented: Amit Shah, The Hindu Business Line report.
  • [Oct 2] Bengali Hindu women not on NRC pin their hope on promise of another list, citizenship bill, The Print report.
  • [Oct 3] Citizenship Amendment Bill has become necessity for those left out of NRC: Assam BJP president Ranjeet Das, The Economic Times report.
  • [Oct 3] BJP govt in Karnataka mulling NRC to identify illegal migrants, The Economic Times report.
  • [Oct 3] Explained: Why Amit Shah wants to amend the Citizenship Act before undertaking countrywide NRC, The Indian Express report.
  • [Oct 4] Duplicating NPR, NRC to sharpen polarization: CPM, Deccan Herald report.
  • [Oct 5] We were told NRC India’s internal issue: Bangladesh, Livemint report.
  • [Oct 6] Prasanna calls NRC ‘unjust law’, The New Indian Express report.

National Security Institutions

  • [Sep 30] CRPF ‘denied’ ration cash: Govt must stop ‘second-class’ treatment. The Quint report.
  • [Oct 1] Army calls out ‘prejudiced’ foreign report on ‘torture’, refutes claim, Republic World report.
  • [Oct 2] India has no extraterritorial ambition, will fulfill regional and global security obligations: Bipin Rawat, The Economic Times report.

More on Huawei, 5G

  • [Sep 30] Norway open to Huawei supplying 5G equipment, Forbes report.
  • [Sep 30] Airtel deploys 100 hops of Huawei’s 5G technology, The Economic Times report.
  • [Oct 1] America’s answer to Huawei, Foreign Policy report; Tech Circle report.
  • [Oct 1] Huawei buys access to UK innovation with Oxford stake, Financial Times report.
  • [Oct 3] India to take bilateral approach on issues faced by other countries with China: Jaishankar, The Hindu report.
  • [Oct 4] Bharti Chairman Sunil Mittal says India should allow Huawei in 5G, The Economic Times report
  • [Oct 6] 5G rollout: Huawei finds support from telecom industry, Financial Express report.

Emerging Tech: AI, Facial Recognition

  • [Sep 30] Bengaluru set to roll out AI-based traffic solution at all signals, Entrackr report.
  • [Sep 1] AI is being used to diagnose disease and design new drugs, Forbes report.
  • [Oct 1] Only 10 jobs created for every 100 jobs taken away by AI, The Economic Times report.
  • [Oct 2]Emerging tech is helping companies grow revenues 2x: report, ET Tech report.
  • [Oct 2] Google using dubious tactics to target people with ‘darker skin’ in facial recognition project: sources, Daily News report.
  • [Oct 2] Three problems posed by deepfakes that technology won’t solve, MIT Technology Review report.
  • [Oct 3] Getting a new mobile number in China will involve a facial recognition test, Quartz report.
  • [Oct 4] Google contractors targeting homeless people, college students to collect their facial recognition data: Report, Medianama report.
  • [Oct 4] More jobs will be created than are lost from the IA revolution: WEF AI Head, Livemint report.
  • [Oct 6] IIT-Guwahati develops AI-based tool for electric vehicle motor, Livemint report.
  • [Oct 7] Even if China misuses AI tech, Satya Nadella thinks blocking China’s AI research is a bad idea, India Times report.

Big Tech

  • [Oct 3] Dial P for privacy: Google has three new features for users, Times of India report.

Opinions and Analyses

  • [Sep 26] Richard Stengel, Time, We’re in the middle of a global disinformation war. Here’s what we need to do to win.
  • [Sep 29] Ilker Koksal, Forbes, The shift toward decentralized finance: Why are financial firms turning to crypto?
  • [Sep 30] Nistula Hebbar, The Hindu, Govt. views grassroots development in Kashmir as biggest hope for peace.
  • [Sep 30] Simone McCarthy, South China Morning Post, Could China’s strict cyber controls gain international acceptance?
  • [Sep 30] Nele Achten, Lawfare blog, New UN Debate on cybersecurity in the context of international security.
  • [Sep 30[ Dexter Fergie, Defense One, How ‘national security’ took over America.
  • [Sep 30] Bonnie Girard, The Diplomat, A firsrhand account of Huawei’s PR drive.
  • [Oct 1] The Economic Times, Rafale: Past tense but furture perfect.
  • [Oct 1] Simon Chandler, Forbes, AI has become a tool for classifying and ranking people.
  • [Oct 2] Ajay Batra, Business World, Rethink India! – MMRCA, ESDM & Data Privacy Policy.
  • [Oct 2] Carisa Nietsche, National Interest, Why Europe won’t combat Huawei’s Trojan tech.
  • [Oct 3] Aruna Sharma, Financial Express, The digital way: growth with welfare.
  • [Oct 3] Alok Prasanna Kumar, Medianama, When it comes to Netflix, the Government of India has no chill.
  • [Oct 3] Fredrik Bussler, Forbes, Why we need crypto for good.
  • [Oct 3] Panos Mourdoukoutas, Forbes, India changed the game in Kashmir – Now what?
  • [Oct 3] Grant Wyeth, The Diplomat, The NRC and India’s unfinished partition.
  • [Oct 3] Zak Doffman, Forbes, Is Huawei’s worst Google nightmare coming true?
  • [Oct 4] Oren Yunger, Tech Crunch, Cybersecurity is a bubble, but it’s not ready to burst.
  • [Oct 4] Minakshi Buragohain, Indian Express, NRS: Supporters and opposers must engage each other with empathy.
  • [Oct 4] Frank Ready, Law.com, 27 countries agreed on ‘acceptable’ cyberspace behavior. Now comes the hard part.
  • [Oct 4] Samir Saran, World economic Forum (blog), 3 reasons why data is not the new oil and why this matters to India.
  • [Oct 4] Andrew Marantz, The New York Times, Free Speech is killing us.
  • [Oct 4] Financial Times editorial, ECJ ruling risks for freedom of speech online.
  • [Oct 4] George Kamis, GCN, Digital transformation requires a modern approach to cybersecurity.
  • [Oct 4] Naomi Xu Elegant and Grady McGregor, Fortune, Hong King’s mask ban pits anonymity against the surveillance state.
  • [Oct 4] Prashanth Parameswaran, The Diplomat, What’s behind the new US-ASEAN cyber dialogue?
  • [Oct 5] Huong Le Thu, The Strategist, Cybersecurity and geopolitics: why Southeast Asia is wary of a Huawei ban.
  • [Oct 5] Hannah Devlin, The Guardian, We are hurtling towards a surveillance state: the rise of facial recognition technology.
  • [Oct 5] PV Navaneethakrishnan, The Hindu Why no takers? (for ME/M.Tech programmes).
  • [Oct 6] Aakar Patel, Times of India blog, Cases against PC, letter-writing celebs show liberties are at risk.
  • [Oct 6] Suhasini Haidar, The Hindu, Explained: How ill purchases from Russia affect India-US ties?
  • [Oct 6] Sumit Chakraberty, Livemint, Evolution of business models in the era of privacy by design.
  • [Oct 6] Spy’s Eye, Outlook, Insider threat management.
  • [Oct 6] Roger Marshall, Deccan Herald, Big oil, Big Data and the shape of water.
  • [Oct 6] Neil Chatterjee, Fortune, The power grid is evolving. Cybersecurity  must too.
  • [Oct 7] Scott W Pink, Modaq.com, EU: What is GDPR and CCPA and how does it impact blockchain?
  • [Oct 7] GN Devy, The Telegraph, Has India slid into an irreversible Talibanization of the mind?
  • [Oct 7] Susan Ariel Aaronson, South China Morning Post, The Trump administration’s approach to AI is not that smart: it’s about cooperation, not domination.

India’s new Defence Cyber Agency—II: Balancing Constitutional Constraints and Covert Ops?

By Gunjan Chawla

In our previous post on India’s cyber defence infrastructure, we discussed the new Defence Cyber Agency (DCA), one of the three tri-service agencies announced at the Combined Commander’s Conference last year. Under the leadership of Rear Admiral Mohit Gupta, appointed as its head in April this year, the DCA is expected to serve a dual purpose—first, to fight virtual wars in the cyber dimension and second, to formulate a doctrine of cyberwarfare. In doing so, it is expected to contribute towards a cybersecurity strategy policy which integrates cyberwarfare with conventional military operations. In June, Lt. Col. Rajesh Pant, the National Cyber Security Coordinator announced that the new cybersecurity strategy policy will be released early in 2020.

The utilisation of cyberspace for military operations holds the potential to infuse a certain ‘jointness’ among the Army, Navy and Air Force. Lt. Gen. (Retd.) DS Hooda pointed out the herculean task that lies ahead of Rear Admiral Gupta– “to find a way to work around vertical stovepipes into which the three services have enclosed themselves”. The tri-services nature of the DCA could potentially compel the three services to share operational information and resources on a regular basis, which would further help to formulate a comprehensive and robust cyber defence infrastructure for the country.

From Coordination to Integration

Since the appointment of Rear Admiral Gupta as the head of the DCA, the Government has made only one announcement that has a significant bearing on its role and functioning. The Prime Minister’s announcement in August about the creation of a new position of a Chief of Defence Staff (CDS) is a welcome step and is expected to catalyse the move from coordination to integration  in the operations of the Army, Navy and Air Force and the operationalization of the three tri-services agencies. The burden of this herculean task entrusted to Admiral Gupta will now presumably, be shared by the CDS.

Unlike the Chairman of the Chiefs of Staff Committee (COSC), which is an additional position occupied by the senior-most officer among the three Chiefs, who serves as primus inter pares, or the first among equals – the CDS will be above the three chiefs, and act as a single-point military advisor to the Government and coordinate long term planning, procurements and logistics of the three service. However, there is long way to go between the announcement of this reform and its actual implementation.

Each of these two announcements – the setting up of the DCA, as well as creation of the CDS post necessitates certain changes in the legislated structure of the three wings of the armed forces for two distinct, but related reasons.

First, because the present legislations that govern the composition and structure of the three wings do not offer sufficient guidance for routine operations conducted jointly by the three wings, nor do they envision an officer superior in rank to the Chiefs of the three services.

The Central Government has the power to make rules under S. 191(2)(l) of the Army Act, 1950 to provide for the relative rank of the officers, junior commissioned officers, petty officers and non-commissioned officers of the regular Army, Navy and Air Force when acting together. S. 189(2)(l) of the Air Force Act, 1950 also confers the same power with respect to the Air Force. However, such a provision to make rules is conspicuous by its absence in the Navy Act, 1957. S. 184(2) of the Navy Act, 1957 confers upon the Central Government, the power to make regulations to provide for the relative rank, precedence, powers of command and authority of officers and sailors in the naval service in relation to members of the regular Army and the Air Force, but this makes no specific reference to the situation when members of three forces are acting together. Instead, S. 7 of the Navy Act provides that

“When members of the regular Army and the Air Force are serving with the Indian Navy or the Indian Naval Reserve Forces under prescribed conditions, then those members of the Army or the Air Force shall exercise such command, if any, and be subjected to such discipline as may be prescribed [under this Act].”

Additionally, the provision states that it cannot be deemed to authorise members of the regular Army or the Air Force to exercise powers of punishment over members of the Indian Navy. This provision is rooted in the colonial history of our naval laws, as it was felt that as the conditions of service at sea differed from that on land and because the erstwhile Navy (Discipline) Act, 1934 differed in many respects to the law relating to the Army and the Air Force, no attempt should be made to assimilate the revised Navy Act in other respects to the law relating to the Army and Air Force. Oddly enough, such unique demands of the sea as a theatre of war that prevented assimilation of the three wings are amplified in the case of cyberspace as a distinct, but connected theatre of war and deserve appropriate recognition in law – in a manner that encourages integration.

The existence of such disparate provisions on the conditions of service of members of the three forces when acting together could foreseeably, prove to be a hurdle in implementing integration for the creation of tri-services agencies. Additionally, the rank, powers and office of a Chief of Defence Staff is not defined or recognized in either of the three Acts. Should such a post be created by the issuing of rules or regulations by the Central Government, they would have to be laid before Parliament, pursuant to S. 185 of the Navy Act, S. 193A of the Army Act and S. 191A of the Air Force Act. In the current state of the law, it is unclear which of these three Acts could be invoked to formulate rules to create such a post in a manner that facilitates such integration.

The second reason is that the advent of cyberwarfare has brought nation-states into what can be described to as the fourth dimension of warfare—military operations that were until recently restricted to the physical domains of land, sea and air have now entered the virtual realm. The growing risk of cyber espionage and breaches of information security of Government agencies, like the ones in 2008 highlight the urgent need for such coordination to ensure prompt, proportionate responses. Thus, we need to prepare a framework not only because the conduct of hostilities now requires unprecedented, seamless integration between the three forces, but also because these hostilities will be conducted in an entirely new dimension, which possesses certain unique characteristics and limitations as a distinct operational theatre for military action.

Accordingly, the question of whether the Government would treat the breach of ‘India’s cyberspace’ by foreign actors, at par with violations of our sovereign territory, airspace or territorial waters must be answered in the affirmative.

At the minimum, this should include, (1) defence communications and operational networks, (2) security of the Government communication networks (3) security of classified and privileged information and (4) critical information infrastructure (CII) should be considered constituent components of our sovereign-protected cyberspace. Since the promulgation and notification of the Information Technology (Critical Information Infrastructure Protection Centre and Manner of Performing Functions and Duties) Rules, 2014, CII falls within the purview of the NCIIPC. Rule 3(4) excludes systems notified by the Ministry of Defence (MoD) as critical information infrastructure. To enable this legally, (1), (2) and (3) ought to be notified by the MoD as such, and explicitly entrusted to the DCA for appropriate action for their protection with appropriate directions.

Constitutional Constraints on Waging War in Cyberspace

Indeed, our cyber forces have been fashioned as an ‘agency’ and not a ‘service’ unto themselves, but contemporary research indicates that with appropriate training and experience, the agency is expected to provide the base for, and grow into a full-fledged Cyber Command.  However, we cannot rely solely on emergency powers under Article 352 of the Constitution as the starting point of our analysis of the legal framework that applies to India’s defensive operations in the cyber realm. Such an analysis leads us to arguments in favour of invoking the fundamental duties of citizens Article 51A for boosting the recruitment of cyber warriors. Such a system can only remain functional, if at all, on an ad-hoc basis. The domain of Parliamentary action cannot reasonably be restricted on the premise that cyberattacks against Government agencies are the ‘new normal’. The State must prepare for the eventuality that ad hoc arrangements set up as necessary reactions to security breaches need to be institutionalized in law. It is not sufficient to assert that the exigencies of cyberwarfare make it inefficient to seek Parliamentary sanction. And so, the military establishment that engages in hostilities with foreign actors in cyberspace, whether fashioned as an agency, service or command, should be read into the phrase ‘any other armed forces’ of Entry 2 of Schedule VII.

When it comes to the defence of India, the Constitution is unambiguous.

Article 53(2) of the Constitution declares that the supreme command of the armed forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law. (emphasis added) Article 53(3)(b) also states that nothing in this Article shall “prevent Parliament from conferring by law functions on authorities other than the President”.

Article 246(1) of the Constitution vests legislative powers in the Parliament. The provision refers to Schedule VII, which identifies specific areas upon which Parliament is entitled to legislate in the national security domain. These areas include the following:

1. Entry 1 refers to “the Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilization.”

2. Entry 2 places “naval, military and air forces; and any other armed forces of the Union” within the legislative competence of Parliament. To this effect, The Army Act and Air Force Act were adopted by the Parliament in 1950 and the Navy Act in 1957.

3. Entry 7 refers to “Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war”. Although the IT sector is treated as a strategic sector by the Government, no such law has been enacted by Parliament.

The language of Article 246 indicates that Parliament is competent to legislate on these issues. However, the use of the word ‘shall’ in the language Article 53 suggests that Parliament is duty-bound to enact such a law. This can also be inferred from the language of Article 73(1) of the Constitution, which states that “The Executive power of the Union shall extend –(a) to matters with respect to which Parliament has the power to make laws”. This makes it clear that the exercise of the Executive power is made conditional on the legislative competence of the Parliament, and not vice versa.

So far, no specific legislation has been forthcoming from Parliament to approve or regulate the exercise of the executive power to engage in cyberwarfare, nor has the Government proposed any. However, the promulgation of a Cybersecurity Act that would cover not only various cyber-related crimes, offences, forensic and policing, but also, have enabling provisions for cyber war and defences against cyber war has been proposed by other think tanks, and even Admiral Gupta himself.

Thus, the power to make preparations for prosecution of war in cyberspace should be backed by Parliamentary sanction. Such an enactment would also help clarify many other questions and streamline the contours of India’s cybersecurity infrastructure and institutions. For example, the domain of authority of the DCA and its relationship with its civilian counterparts including the National Cyber Security Coordinator (NCSC) and the Indian Computer Emergency Response Team (CERT-In) remain unclear. With proper consideration and consultations, the setting up of the DCA could potentially open the doors to enhanced, perhaps even institutionalised civilian-military cooperation that begins in cyber operations and permeates into conventional operations as well.

Two new domains—space and cyber—enabled by high technology, offer unprecedented opportunities for enhanced communication and coordination among wings of the armed forces in all theaters of war, and be used as force multipliers for intelligence analysis, mission planning and control.[i] Given their crucial role in intelligence analysis, foreseeably, the Government could model the agency as one that ‘cyber-supports’ military operations, but  with a greater emphasis on covert operations rather than conventional warfare.  In such a scenario, we may expect that its structure and functioning would be shrouded in secrecy, analogous to the Research and Analysis Wing (R&AW) or the Intelligence Bureau (IB). This means that the DCA would work closely with the Defence Intelligence Agency (DIA). While structures analogous to existing intelligence agencies could potentially allow greater freedom of action for cyber operations, it could also compromise the DCA’s potential to draw upon civilian expertise.

In the interest of widening the pool from which the DCA recruits and trains its cyber-warriors, a proper legislative mandate would go a long way in establishing and strengthening strategic partnerships with the private sector, where most of the country’s tech talent is currently employed.


[i] As an aside, it is pertinent to mention that India’s entry into the fifth dimension i.e. space remains debatable— even after carrying out the first successful test of anti-satellite (ASAT) weapon and being in the process of setting up a Defense Space Agency, our policies still espouse the principle of peaceful uses of outer space.