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.

Fork in the Road? UN General Assembly passes Russia-backed Resolution to fight Cybercrime

By Sharngan Aravindakshan

On 19 November 2019, the Third Committee of the United Nations General Assembly passed a Russia-backed resolution. The resolution called for the establishment of an ad-hoc intergovernmental committee of experts “to elaborate a comprehensive international convention countering the use of information and communications technologies for criminal purposes” (A/C.3/74/L.11/Rev.1). China, Iran, Myanmar, North Korea and Syria were also some of the countries that sponsored the resolution. Notably, countries such as Russia, China and North Korea are all proponents of the internet-restrictive “cyber-sovereignty” model, as opposed to the free, open and global internet advocated by the Western bloc. Equally notably, India voted in favour of the resolution. The draft resolution, which was passed by a majority of 88-58 with 34 abstentions, can be accessed here.

The resolution was strongly opposed by most of the Western bloc, with the United States leading the fight against what they believe is a divisive attempt by Russia and China to create UN norms and standards permitting unrestricted state control of the internet. This is the second successful attempt by Russia and China, traditionally seen as outliers in cyberspace for their authoritarian internet regimes, to counter cybernorm leadership by the West. The resolution, to the extent it calls for the establishment of an open-ended ad hoc intergovernmental committee of experts “to elaborate a comprehensive international convention” on cybercrime, is also apparently a Russian proposal for an alternative to the Council of Europe’s Budapest Convention.

Similarly, last year, Russia and China successfully pushed for and established the Open-Ended Working Group (OEWG), also under the aegis of the United Nations, as an alternative to the US-led UN Group of Governmental Experts (GGE) in the attempt at making norms for responsible state behaviour in cyberspace. Hence, we now have two parallel UN based processes working on essentially the same issues in cyberspace. The Russians claim that both these processes  are complementary to each other, while others have stated that it was actually an attempt to delay consensus-building in cyberspace. In terms of outcome, scholars have noted the likelihood of either both processes succeeding or both failing, or what Dennis Broeders termed “Mutually Assured Diplomacy”.


The Russia-backed cyber-crime resolution, while innocuously worded, has been widely criticized by civil society groups for its vagueness and for potentially opening the door to widespread human rights violations. In an open letter to the UN General Assembly, various civil society and academic groups have expressed the worry that “it could lead to criminalizing ordinary online behaviour protected under human rights law” and assailed the resolution for the following reasons:

  • The resolution fails to define “use of information and communication technologies for criminal purposes.” It is not clear whether this is meant to cover cyber-dependent crimes (i.e. crimes that can only be committed by using ICTs, like breaking into computer systems to commit a crime or DDoS attacks) or cyber-enabled crimes (i.e. using ICTs to assist in committing “offline” crimes, like child sexual exploitation). The broad wording of the text includes most crimes and this lack of specificity opens the door to criminalising even ordinary online behaviour;
  • The single reference to human rights in the resolution, i.e., “Reaffirming the importance of respect for human rights and fundamental freedoms” is not strong enough to counter the growing trend among countries to use cybercrime legislation to violate human rights, nor does it recognize any positive obligation on the state to protect human rights.
  • It is essentially a move to negotiate a cybercrime convention or treaty, which will duplicate efforts. The Council of Europe’s Budapest Convention already has the acceptance of 64 countries that have ratified it. Also, there are already other significant international efforts underway in combating cybercrime including the UN Office on Drugs and Crime working on various related issues such as challenges faced by national laws in combating cybercrime (Cybercrime Depository) and the Open Ended Intergovernmental Expert Group Meeting on Cybercrime, which is due to release its report with its findings in 2021.

Wolves in the hen-house?

Russia’s record in human rights protection in the use of information and communications technology has been controversial. Conspicuously, this resolution comes just a few months after it passed its “sovereign-internet law”. The law grants the Kremlin the power to completely cut-off the Russian internet from the rest of the world. According to Human Rights Watch, the law obliges internet service providers to install special equipment that can track, filter, and reroute internet traffic, allowing the Russian government to spy, censor and independently block access to internet content ranging from a single message to cutting off Russia from the global internet or shutting down internet within Russia. While some experts have doubted the technical feasibility of isolating the Russian internet no matter what the government wants, the law has already come into force from 1 November 2019 and it definitely seems like Russia is going to try.

Apart from this, there have also been credible claims attributing various cyberattacks to Russia, including the 2007 attacks on Estonia, the 2008 attacks on Georgia and even the recent hacking of the Democratic National Committee (DNC) in the US. More recently, in a rare incident of collective public attribution, the US, the UK and the Netherlands called out Russia for targeting the Organization for the Prohibition of Chemical Weapons’ (OPCW) investigation into the chemical attack on a former Russian spy in the U.K., and anti-doping organizations through cyberattacks in 2018.

China, another sponsor of the resolution, is also not far behind. According to the RAND Corporation, the most number of cyber-incidents including cyber theft from 2005- 2017 was attributed to China. Also, China’s Great Firewall is famous for allowing internet censorship in the country. A Russo-China led effort in international cybernorm making is now widely feared as portending stricter state control over the internet leading to more restrictions on civil liberties.

However, as a victim of growing cyber-attacks and as a country whose current public stance is against “data monopoly” by the West, India is going to need a lot more convincing by the Western bloc to bring it over to the “free, open and global” internet camp, as its vote in favour of this resolution shows. An analysis of the voting pattern for last year’s UNGA resolution on countering the use of ICT for criminal purposes and what it means for international cyber norm making can be accessed here.

Fractured Norm-making

This latest development only further splinters the already fractured global norm-making process in cyberspace. Countries such as the United States are also taking the approach of negotiating separate bilateral cyberspace treaties with “like-minded nations” to advance its “cyber freedom” doctrine and China is similarly advancing its own “cyber-sovereignty” doctrine alongside Russia.

Add to this mix the private sector’s efforts like Microsoft’s Cybersecurity Tech Accord (2018) and the Paris Call for Trust and Security in Cyberspace (2018), and it becomes clear that any unified multilateral approach to cybernorm making now seems extremely difficult, if not impossible. With each initiative paving its own way, it now remains to be seen whether these roads all lead to cyberspace stability.

BRICS and Internet Governance: India’s Chance to Lead the Way

By Gangesh Varma

The last quarter of 2015 alone witnessed three key events that displayed the diversity of views on internet governance. Namely, the 10th Internet Governance Forum (IGF), the United Nations WSIS+10 High Level Meeting, and the 2nd World Internet Conference (WIC) in Wuzhen, China. Each of these events captured various models of internet governance both as part of their discussions and in their format as well.  In this post I highlight some of these rifts in the internet governance space and suggest that 2016 BRICS Summit, might be a great venue to build bridges for better dialogue. India is set to chair the BRICS Summit from February 2016 and has an opportunity to lead the way.

The number of venues where internet governance discussions take place continues to grow. This is not surprising considering that internet governance is a very broad term and has a wide ambit that is rather pervasive. It is indeed a reflection of diverse perceptions and priorities that countries and stakeholders have with regard to internet governance. Having multiple fora for discussing these issues is not a bad necessarily a bad thing. In addition to providing more alternatives I believe it accommodates diverse perspectives and provides avenues for greater representation.

Interaction between these fora produces interesting results. For example, the 10th IGF also facilitated a round of consultations on the WSIS+10 Review, and the inputs received was transmitted to the negotiations before the High Level Meeting. This synergy is natural because the IGF was essentially born out the second phase WSIS process in 2005, and the consultations for the WSIS+10 Review also followed a multistakeholder model. An example showcasing the opposite of such synergy can be found in furore surrounding the interactions at the 2nd WIC. Fadi Chehade, CEO of ICANN at the 2nd WIC caused quite a stir with his statements, and decision to join and co-chair the High-Level Advisory Committee. I will not be analysing the merits and demerits of such decision, or commenting on the larger Chinese strategy at play. I would  like to highlight the reason for such friction is simply because of the existence of multiple models of governance.

The various models of governance are a result of the divergent views of internet governance. The Tunis Agenda is a great example that was a result of a compromise between the multistakeholder and multilateral elements. Ten years later the negotiations of WSIS+10 Outcome document revived the same debate. Eventually the outcome document was arrived at by including both ‘multistakeholder’ and ‘multilateral’ in its text. Kleinwächter takes a ‘layered approach’ in analysing this debate, and shows how each event is an example of a different model of governance. The IGF is a multistakeholder conference, while the WSIS+10 was multilateral and the 2nd WIC was unilateral event under Chinese leadership. It is evident that in reality no model exists in isolation, and cannot afford to do so due to the complexity and scale of the internet ecosystem. However, competing notions of fundamental concepts prevent multiple models from co-existing without friction. Concepts of sovereignty and jurisdiction when applied to the internet and cyberspace have widely differing interpretations. Even multistakeholderism is interpreted and operationalised differently in various institutions and processes.

The concept of ‘sovereignty’ can be taken as an example. At the 2nd World Internet Conference, the Chinese President Xi Jinping reiterated the application of sovereignty to online spaces. On an internet governance spectrum, President Xi Jinping’s iteration of ‘cyber-sovereignty’ would be on one end while John Perry Barlow’s famous Declaration of the Independence of Cyberspace from 20 years ago would be on the other end. Barlow’s version of cyberspace is long gone, and sovereignty on the internet has many manifestations such as ‘data sovereignty’ that has gained importance in the Post-Snowden Era. The evolving uses of the internet only adds to the complexity created by these competing notions of sovereignty and its application to the online spaces resulting in differing interpretations of ‘cyber-sovereignty’.

In this context, I believe building a ‘BRICS Bridge for Dialogue’ would be helpful. BRICS might seem like the least favourable place to discuss internet governance given there are divergent views within the coalition itself. Russia and China support greater weightage to multilateral methods. While India, Brazil and South Africa (IBSA) can be considered supporters of multistakeholder models although they had earlier in 2011 supported a UN led Committee for Internet Related Policy (CIRP) which was predominantly a multilateral model. India’s position on multistakeholderism is evidenced not only in the statement of the Information and Communications Minister at ICANN 53 but also in the recently concluded WSIS+10 negotiations as well.

BRICS has already put in place working groups such as the Working Group on ICT Cooperation, and the BRICS Working Group on Security in the Use of ICTs. The Ufa Declaration pledges support for greater cooperation in these areas and places heavy reliance on the UN and multilateral mechanisms. However it also acknowledges the ideas of “equal footing” and “the need to involve relevant stakeholders in their respective roles and responsibilities”. This intra-BRICS cooperation provides a foundation of shared values to build a stronger dialogue on internet governance issues. Given the divergence of views on internet governance models among the BRICS countries, it is not easy to develop a crystallised BRICS position. However, initiating the dialogue among a smaller group countries with common interests can probably yield better results than stand-offs between hard-line positions on other international fora. India will be hosting the BRICS Summit in 2016, and will be Chair for a period of 11 months starting in February 2016. India has the opportunity to initiate and steer this dialogue that has significant strategic benefits not just for the BRICS countries but can contribute to the development of global internet governance regimes.