Politics and Elections in the Era of Cyberwarfare

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By Peter Clarke, JD on October 18, 2016 7:00 AM

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Unless you are a hermit hiding out in an undiscovered cave, you are well aware that we have been in the thick of an acrimonious and difficult election cycle for the highest office in the land -- the Presidency of the United States. Presidential campaigns and campaigns for other elected offices have been a struggle in prior years -- given all the competing interests, priorities and strategies that constantly have to be juggled. If that were not enough, now candidates have to deal with the new reality of cyber warfare.

We have been learning from recent press reports that Russia apparently has been active in its efforts to disrupt the current presidential election in the United States. Indeed, according to a recent report by NBC News, Russia's "cyber-espionage campaign against the American political system began more than a year ago and has been far more extensive than publicly disclosed, targeting hundreds of key people.'

This report indicates that the targets specifically have included Hillary Clinton's associates from her time at the State Department, the Clinton Foundation, and most recently her presidential campaign. The report goes on to state that U.S. authorities believe that the Russian hacking campaign came from direct orders from the Kremlin and "is an attempt to influence the presidential election and advance the broader strategic objectives of the [Vladimir] Putin regime."

While Donald Trump at times has offered praise for Putin, the Clinton camp has been deeply concerned, because the Russian political hacking efforts surrounding the presidential election appear primarily to have targeted Clinton and her colleagues. Indeed, a recent release of hacked emails of Clinton campaign chair, John Podesta, provide information relating to Ms. Clinton's speeches to Goldman Sachs, and there is concern that there will be more email dumps that seek to impugn Ms. Clinton's reputation. At the last Presidential debate, Clinton expressed worry about Russian hacks, and in response, Mr. Trump argued that there was no proof that Russia was behind the hacks. He made the same argument at the first debate.

In the wake of the foregoing, the Obama administration now is considering an "unprecedented cyber covert action against Russia in retaliation for alleged Russian interference in the American presidential election," according to an even more recent NBC News article, citing an unnamed U.S. intelligence officials. Indeed, according to the article, "the CIA has been asked to deliver options to the White House for a wide-ranging 'clandestine' cyber operation designed to harass and 'embarrass' the Kremlin leadership."

The CIA reportedly has "gathered reams of documents that could expose unsavory tactics by Russian President Vladimir Putin." Some of this information reportedly documents the financial dealings of Putin and his associates when it comes to moving money offshore and away from Russia for their own advantage. Former CIA deputy director Michael Morell is quoted in the article as stating skepticism that the US actually would attack Russian networks, for fear that this could cause a similar attack back in response.

Plainly, the US cannot tolerate having its elections disrupted by outside state or other actors. We will see whether the facts prove up that Russia actually has been behind hack attacks that already have occurred and that may happen going forward.

If the US takes cyber action against Russia, one would like to think that the Obama administration would do so whether the hacks suffered here had been perpetrated primarily against a candidate from either major party. It is the integrity of our electoral process that must be insured -- not just the protection of one particular candidate or party.

Of course, it is troubling that one specific candidate appears to have been targeted more than the other, while that other candidate has offered praise for Putin and disclaims suggestions that Russia has been behind the hack attacks.

The presidential election coming up belongs only to Americans entitled to vote. Hopefully, we can keep it that way and we can keep it fair. And when the result comes down, hopefully we all will be able to live with a fair result, without some claiming that the result has been "rigged."

Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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