In the new age of digital threats and extensive use of computers for hacking and other crimes, governments are facing the brutal reality that preventing crime and catching criminals is more complex than ever. Common crimes and tools used by criminals via the Internet include phishing, identity theft, the use of botnets, and ransomware. Recently, however, these common online crimes have gone beyond just attacking individuals as cybercriminals have begun to attack large corporations and governments themselves. Cyberattacks on corporations have led to serious breaches of data, including the swiping of private health information and Social Security numbers.
In April 2021, the Biden administration introduced a ransomware task force in response to one of the largest spikes ever seen in computer crime. The goal of the task force is to further unify the resources of the government and work alongside the private sector to better understand the nature of these crimes.
The Focus on China
China’s reputation in hacking became known in 2010 after an attack on Google. However, until this past summer, the White House’s focus when it came to hacking was Russia. Incidents throughout 2021 led to stronger measures being taken against China. In July, the United States, United Kingdom, and European Union came together to accuse China of committing cyberattacks against Microsoft servers in order to gain personal information and other espionage efforts. Over 30,000 systems, including both small business and banks, were compromised around the world by these attacks, during a time of struggle due to Covid-19. Further significant economic loss to these companies lies ahead as each makes adjustments to their security risks.
Investigations into the revitalization of China’s hacking efforts show that the country has begun using a network of elite contractors that work under the direction of the Ministry of State Security (MSS). Furthermore, in an indictment by the Department of Justice, it is alleged that Chinese universities have been training and recruiting students to run their operations. The activities of the four MMS hackers that were indicted on criminal charges go against China’s stated “bilateral and multilateral commitment to refrain from engaging in cyber-enabled theft of intellectual property for commercial advantage.”
Issues with Cross-Border Attacks
One of the greatest issues with addressing the wave of cybercrime is the nature of these crimes themselves. Cybercrimes are often committed by individuals in a different location than where the targets of the crime are and have increasingly been committed by individuals outside of the United States. The job of investigators and prosecutors is more difficult when the cyber criminal is in a different country or the hacking is untraceable. If the IP address is discovered in an investigation and traced back to its source, that is just the start of prosecution. The United States has treaties with more than 100 countries that allow for extradition of individuals accused of committing a crime on U.S. soil. However, the United States does not have an extradition treaty with China or Russia, which are two countries that have aroused the most suspicion when it comes to hacking. Canada began talks with China in 2016 on an extradition treaty, which some hoped signified a move towards other treaties between China and the West. On the grounds of torture of prisoners and other judicial corruption, the United States has opposed an extradition treaty with China.
Extradition and cooperation between two countries depend almost entirely on the nature of the relationship between those two countries or jurisdictions. Most criminal matters have been handled between the United States and China through an informal process or the Mutual Legal Assistance Agreement, rather than a treaty that has the force of law. Without a treaty in place, extradition is not guaranteed. In conjunction with this lack of formality, the spread of international crime, often conducted via the Internet, has made extradition more important than ever.
However, pursuing this sort of international cooperation often slows and complicates the process. Due to recent changes in the Chinese government, there is fear that China will not properly prosecute criminals who have committed crimes against the United States, its citizens, and its businesses. This, along with mounting cybercrime generally, highlights the need for more than simply extradition measures. Crimes by members, or contractors, of the Chinese government is arguably a strong reason for greater sanctions against the country.
The Future of Cyberattacks and Punishment
In 2015, China shifted most of its control from the People’s Liberation Army to the MMS. Much of the recent hacking has been attributed to this reorganization. Compared to the People’s Liberation Army, the MMS prefers to use contractors to maintain plausible deniability. Cybercrime researchers and others in the field have analogized the MMS’ hacking to that of Russia, theorizing that in the future China will follow in Russia’s footsteps. As recently as October 2021, Russia ignored sanctions put in place by the United States in April 2021 and hacked into thousands of government and private computers.
Despite efforts by the Biden administration, there is a strong belief that China will continue denying any connection with the MMS contractor’s attacks. Further, the recent attacks by Russia may foreshadow the attacks that may come from China. Suggestions have been made arguing that the Biden administration could sanction Chinese government officials or expel Chinese diplomats. These options, however, run the great risk of further injuring the US-China relationship.
Following the United States’ accusations against China in regards to the early 2021 attack on Microsoft, China made similar accusations against the Central Intelligence Agency based upon a 2020 report. However, it is unclear if there is much backing to this accusation. Although attempting to predict the future is seemingly futile in the area of cybersecurity, it is unlikely that attacks will cease without further intervention or a change in sanctions. China developed its cyber capabilities in response to the ever-changing environment and its cyberspace activities seem to follow their military strategy, including intense monitoring of Internet usage. There is no single solution to this complex problem. However, beginning with sanctions against China that are similar to those issued against countries who violate human rights or take part in corruption-related activities may lead to strain on the Chinese economy and government itself.
Author Biography: Gabrielle Hangos is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. Candidate at The George Washington University Law School. She has a Bachelor of Arts in Psychology and a minor in Political Science and Criminal Justice from The George Washington University.