1. What Happened

On February 19, 2016, Twitter user @evagreen69 logged onto her twitter account and typed out the following tweet: “Texas Democrats Indicted for Buying Votes With Cocaine … #tcot #PJNET #ccot #WakeUpAmerica #RedNationRising.” The tweet’s central allegation was shocking – and ultimately a conspiracy theory. In fact, Texas Democrats were never indicted for buying votes with cocaine. The story was entirely fictional, though the tweet reported the event as factual news. In order to increase the visibility of the tweet, @evafreen69 used two well-known conservative hashtags, #WakeUpAmerica and #RedNationRising. And this was not the first time that @evagreen69 had tweeted. For example, one prior tweet from 2015 was a retweet of the following statement from another account, @Xamerican: “Michelle Obama Tells San Bernardino Victims’ Families That She Will Rap For Them.”

Based on these and other tweets, Twitter users could be forgiven for assuming that @evagreen69 was an American voter. But she was not. According to Twitter, these tweets were just among the millions of tweets that were composed or retweeted from accounts controlled by individuals at the Internet Research Agency (IRA) troll farm in St. Petersburg Florida.Footnote ¹ The massive number of tweets composed by individuals (or automated bots) associated with the IRA troll farm reveals something telling about modern election interference. To have an impact, it was not necessary for the IRA to compose tweets that received a huge amount of engagement – retweets or likes numbering in the 100,000s. Rather, the IRA developed the opposite strategy: swarm social media platforms with a large number of tweets, each of which could have a small amount of engagement but collectively could amplify particular themes, hashtags, and memes. Some of the tweets were vicious and scandalous, others silly or comical. Some of the tweets disparaged Clinton or praised Trump, while other tweets amplified leftist talking points – raising questions about the goal of the IRA and the overall strategy it was using to achieve it.

During the early morning hours after election day, as news media organizations officially “called” the election for Donald Trump in the middle of the night, a nation woke up to learn that Trump was the next President of the United States. For those who voted for him, Trump’s election was the fulfillment of a promise to fundamentally recalibrate the political spectrum. For those who voted against him, the result was traumatic. Later, the Office of the Director of National Intelligence released a report explicitly concluding that Russia interfered in the election and detailing those efforts. For months following the election, Clinton voters wondered aloud whether the results of the election could be overturned on account of Russia’s interference (it could not). Trump responded defensively and boastfully to suggestions that his election was illegitimate.

Trump also offered conflicting statements about whether Putin intervened in the election. During various public appearances he denied that there was any interference, then later conceded that his own intelligence agencies had concluded that there was interference. During a press conference following an official visit with Putin, Trump noted that Putin had denied intervening in U.S. politics and Trump said he had no reason to doubt Putin.Footnote ² After an uproar, Trump claimed that he had misspoken (by adding an errant negative) and had meant to say that there were reasons to doubt Putin.Footnote ³

Although election interference is not new, Russia’s social media strategy for election interference, writ large, represented a new form of interference in the political affairs of the United States. The advent of social media electioneering raised a number of important political questions. Would Trump have been elected in the absence of Russian interference? Why did the Russians intervene? Why was Trump acting so obsequiously towards Putin? Did the Russians have some form of leverage or kompromat over Trump? Was Trump an unwitting Russian asset? If Trump realigned American foreign policy toward Russia and away from traditional allies, was this realignment part of his presidential prerogative based on his constitutional authority over foreign policy?

While political commentators were debating these questions, international lawyers were engaged in a parallel conversation, one that was more technical but just as consequential. International lawyers were asking whether Russia’s interference violated international law. Did Russia do something wrong by operating a troll farm to promote divisive rhetoric in the American political landscape? Did the use of cyber technologies turn the Russian interference into an illegal cyber-attack that triggered a right of response, a form of cyber self-defense? International lawyers generally fell into two camps, with one camp viewing the interference as illegal and another camp viewing it as regrettable but probably lawful under existing legal frameworks. But everyone agreed that Russia’s aggressive use of social media technology was a game-changer.

My own intuition was that the “illegal” camp had it right – Russia did violate international law – but that the “illegal camp” had the wrong reasons for reaching this conclusion. The “illegal camp” argument was that Russia had violated American sovereignty during the run up to the 2016 election, but this argument did not sit well with me. I had the different idea that Russia had violated the American people’s right of self-determination. I found that not only was I disagreeing with the considered views of many important international lawyers, but that by invoking self-determination I was almost talking a different language – despite the fact that self-determination is widely assumed to be a collective right protected by international law and codified in many human rights treaties. I wrote this book to articulate my view and defend my argument.Footnote ⁴

2. Methodology

The analytical framework for this study is international law. One question that arises is why international law is the appropriate lens through which to understand election interference. It certainly is not the only framework that might be used. In recent years, though, public discourse has become increasingly legalized. In prior generations, the public might have debated whether a particular foreign policy arrangement was moral or “just,” but today, the public also asks whether a particular course of action is lawful under international law. Many readers want to know whether international law prohibits election interference and this book is designed to answer that question. The legal question does not supplant the moral question, but simply adds to it.

It is crucial to articulate what this book is not. It is not a work of political science. Political scientists seek to explain a particular phenomenon – why it occurs – and to trace causal pathways. This is a worthwhile endeavor, but it is far different from the task of this book. This book focuses on whether election interference is illegal or not. On this question, international law scholars are split. Some have argued that it violates a core prohibition of nonintervention against the political affairs of another state, while others disagree and note that political intervention is only prohibited in very limited circumstances. Despite the disagreement, these camps share a common assumption: that election interference should be analyzed under the rubric of nonintervention and sovereignty. As will be explained below, I side with the camp that says election interference is illegal under international law, but I do so for a completely different reason.

If you do not care about international law – or do not think that it makes a difference to the world – then this is not the book for you. This book starts from the assumption that international law matters, that is, that we should care about what it says. If you think that international law has nothing to contribute to the conduct of foreign affairs – that it does not and should not matter whether something is illegal or not – then you should probably stop reading this book right now.Footnote ⁵ Continuing to read this book will only bring you frustration and annoyance.

There are plenty of people in the world who do not care about international law and find it useless or irrelevant. My book is not designed to convince them otherwise. Skeptics or “realists” about international law often consider it epiphenomenal or not likely to change the behavior of other nation-states. Realists about international law might assume that Russia, China, or Iran are not going to forego election interference simply because it is illegal under international law; under this view, international law has little to contribute to the practical conversation about how to combat election interference. Realists would rather look for hard-nosed coercive mechanisms to solve the problem or might resign themselves to living in a world with election interference. Or realists might look to technical solutions to election interference that could be implemented by social media platforms or tech firms. But the question of legality might be secondary (or worse, distracting) to them.

I find this way of looking at the world fundamentally misguided, but this book is not designed to show why international law is relevant. It simply assumes the relevance of international law. Most readers care about international law and what it has to say about election interference, simply because most readers want their state to comply with international law. They might also believe – correctly, as it turns out – that international legal mechanisms could be useful as a way to push back against election interference. Even before we consider legal mechanisms such as countermeasures that are designed to induce compliance among law-breaking states, we should recognize that international law has enormous rhetorical power to structure international relations. Before the question of enforcement arises, labeling some behavior as compliant with international law – and other behavior as violating it – can have powerful consequences for the way states relate to each other on the world stage.

For those looking for a full defense of international law, and its relevance, you should read my prior book, The Assault on International Law, which explains why international law matters.Footnote ⁶ In that book, I take up the realist challenge and argue why states should comply with international law, even in the absence of any world government that has the coercive power to enforce it. I argue that states are rationally justified in complying with international law because it is part of an overall strategy of “constrained maximization,” a term that I borrow from the philosophical literature on rational choice theory.Footnote ⁷ States do better when they participate in the international legal order than when they ignore it and get branded as a rogue nation. Furthermore, states should follow through on their legal commitments because doing so is rationally justified as part of an overall strategy of constrained maximization. Although it might be tempting to make international legal commitments and then shirk those commitments when they become inconvenient, this is extremely myopic. States are rationally justified in following through on their commitments because doing so is part of an overall plan that will make the state better off in the long run.

For the same reasons, I think that states should comply with the prohibition on election interference. Of course, not every state agrees and some states – including Russia – ignore international expectations about the sanctity of the democratic process. For these and other reasons, this book also addresses what responses international law might offer to confront the problem of election interference, and what measures each state might take, consistent with international law, to protect the integrity of their elections. This includes regulations to prohibit outsiders – foreigners – from participating in elections.

Also, this book is not a work of history. One might wonder if election interference is a new phenomenon or simply the latest chapter of an old story. Certainly, states have interfered in the internal politics of foreign states and for reasons of strategic self-interest have used covert operatives to support political movements or remove governments.Footnote ⁸ The advent of new technology – including social media troll farms and the use of cyber-intrusion methods to hack confidential information – may have radically transformed that older process of intervention, which previously took place using conventional, nondigital methods. A work of history would tell the story of these ancient and recent interventions, with the hope of gaining insight into whether the new interventions are different in kind or only different in degree from what has come before. But as noted above, this book is not a work of history and we should leave to historians this difficult task. The one area where the history of intervention is briefly considered is in the context of customary international law. Customary international law is built from the raw materials of state practice and opinio juris (acting from a sense of legal obligation). The history of election interference is marginally relevant for deciding whether states have tacitly acknowledged that election interference is ongoing and whether they consider it a violation of international law. On the other hand, the history is not dispositive, because even if states have engaged in election interference from time immemorial, it still might be illegal. (Many behaviors are illegal even though they are widespread.)

There is a strong temptation to instrumentalize international law – to think of it as a tool to solve international problems.Footnote ⁹ That impulse shows up equally in the case of election interference, tempting us to ask how the norms, processes, and mechanisms of international law could be used to solve the “problem” of election interference. To a certain extent, this impulse is natural, expected, and justified, but in another respect, law has its autonomy and there is value in determining the content of international law before asking what it can do for us. Consequently, the aim of this project is to determine the scope and content of the international legal rules pertaining to election interference. It is perfectly respectable to ask that question without needing to provide an answer as to how international law can improve the situation.

3. Summary of the Argument

The argument in this book unfolds over eight chapters. Chapter 1 asks: What is election interference? To answer that question, I look mostly at the Russian intervention during the 2016 election – with full knowledge that this case study might leave out other forms of election interference. Nonetheless, the inspiration behind the study is to understand whether, and why, Russia’s interference in the 2016 election violated international law, and whether similar efforts by other nations would be illegal. Although Russian interference included multiple facets, Chapter 1 focuses on two of the most prominent: the theft and release of private information (such as emails stolen through hacking), and the use of social media troll farms to spread disinformation and amplify division in the electorate. The Russians also attempted to infiltrate advocacy organizations. Chapter 1 argues that the use of social media platforms for political discussions – a technology that was unavailable just decades ago – creates the psychological conditions that allow information operations to be as successful as they are. Specifically, social media platforms allow users to build networks of like-minded friends and curate a feed of news items that either promotes an echo chamber or at the very least heightens partisan intensity. Modern election interference through social media activity can harness this dynamic in order to subtly alter the political discourse of the electorate. Although it is unlikely that social media interference can inject new beliefs or opinions into the political discourse, there is ample empirical evidence that it can amplify some opinions and heighten the intensity of political beliefs.

The book then considers a variety of plausible legal frameworks for understanding election interference. Chapter 2 is meant to debunk a promising line of inquiry: that Russian election interference was illegal because it constituted an act of “war” against the United States. In some situations, a cyber-attack can constitute an illegal act of war, thus suggesting that the cyber-war rubric is a helpful one for understanding modern election interference, especially interference that is accomplished through cyber methods. The basic intuition here is that cyber-attacks sometimes qualify as “armed attacks” under international law, thus making the election interference an opening salvo in an armed conflict. On deeper analysis, however, Chapter 2 reveals that the cyber-war analogy is inapt. A discussion of the legal rules regarding cyber-attacks reveals that there are specific doctrinal requirements that must be met before a cyber-attack can be regulated by the international legal rules governing armed conflict. Most importantly, a cyber-attack must accomplish a particular type and amount of physical damage – such as destroying tangible objects, killing people, or under some contested accounts disabling a computer system – in order to constitute an “attack” in the legal sense of that term. These technical requirements fit uncomfortably with the paradigm of election interference which often does not involve this type of destruction or disabling of a target. This observation is not meant to minimize the unique and devastating harm of election interference, but rather is designed to humbly note that we need to continue the intellectual inquiry in order to find the distinctive harm of election interference. Cyber-war turns out to be a metaphor with limited utility for understanding election interference.

Chapter 3 turns the page and considers a different lens for evaluating election interference: the international prohibition on “interventions” against the sovereignty of another state. This rule of nonintervention is a pillar of the international legal system and is arguably implicit in the very notion of a Westphalian legal order (an international community of sovereign states, each one pledging not to interfere in the affairs of the others). As Chapter 3 reveals, most scholars view the nonintervention rule as related to the concept of sovereignty: an intervention against another state is prohibited when it violates the sovereignty of that state. Just as in Chapter 2 and the discussion of cyber-war, the international legal rules regarding nonintervention impose specific doctrinal requirements, most of which do not line up with the case of election interference. Sovereignty is usually violated under international law when the intervening state engages in some coercive act, but it is hard to identify an element of coercion in modern cases of election interference. To be sure, election interference is problematic and damaging, but its wrongfulness does not flow from any coercive quality. Similarly, an intervention might be illegal if it “usurps” a government function, but this too fails to adequately describe cases of election interference – at least if the election interference takes place during the deliberative process. (A case of a foreign state tampering with vote counting might be different.) We will need to search for a better rubric for understanding the wrongfulness of election interference.

Chapter 4 proposes a new framework for understanding election interference, one that has been systematically ignored by international lawyers – practitioners and scholars alike. International law recognizes that every people enjoys the collective right of self-determination. This chapter argues that the right of self-determination, properly understood, provides a powerful concept for explaining the distinctive harm of election interference. When the Russians intervened in the 2016 election, they denied the right of the American people to decide their own destiny through the democratic process. Why have international lawyers steadfastly ignored the explanatory power of self-determination? Simply put, international lawyers have assumed that self-determination only applies to stateless peoples, but that once a people receives a state, the concept of self-determination fades away to be replaced by the protection of sovereignty as a governing framework. This chapter is devoted to the proposition that this basic assumption about self-determination is wrong.

Chapter 5 tries to develop the concept of self-determination by looking at the ways that democratic societies, especially the United States, protect their electoral process by enacting what I call “boundary regulations” that set criteria for membership in the political community. These rules include the prohibition on foreign voting, the prohibition on foreign contributions and spending, and a registration requirement for foreign agents. Each of these regulations, in their own way, helps ensure that the political process is dominated by insiders rather than outsiders. The key move of the chapter is to unite this entire conceptual apparatus together as individual pieces of a larger whole: the fulfillment of a people’s right to self-determination through democratic institutions. However, democratic institutions require protection and each of the boundary regulations is an example of that protection. The goal of many of these boundary regulations is transparency – in other words, to ensure that the public is aware of when foreign powers are attempting to influence our democratic process. This is precisely the danger of modern election interference, which acts covertly so that the foreign power’s participation in the democratic process remains hidden from the rest of the electorate. Chapter 5 ends with a policy suggestion to improve transparency on the Internet: get social media platforms to label posts that have a foreign origin (either voluntarily or through a legal mandate).

Chapter 6 responds to an oft-heard objection to boundary regulations, such as campaign finance regulations, that target foreign speakers. The objection is that restrictions on campaign contributions and spending violate the First Amendment. Also, the transparency rules suggested in the prior chapter might compromise the possibility for purely anonymous political speech, which might raise concerns among First Amendment absolutists. Chapter 6 meets this challenge by arguing that foreigners located outside the territory of the United States have no constitutional right to participate in American elections, nor do they have a right to engage in extraterritorial political speech. Modest transparency regimes, such as labeling foreign political speech as foreign, would be consistent with both the First Amendment and international human rights protections on freedom of speech. Indeed, since free speech absolutism is a distinctively American constitutional phenomenon, international law imposes fewer constraints in this area than U.S. constitutional law.

Chapter 7 considers other responses to election interference, especially the role that criminal prosecutions can play in broadcasting information to the public about the nature of foreign interventions in the democratic process. While we are usually inclined to think of criminal prosecutions as oriented around punishment of the guilty, the criminal process has an important role to play in getting information into the hands of the public. This information-sharing element of the criminal process can be useful for combating election interference. By initiating criminal investigations and prosecutions, state authorities can inform the public of details of foreign election interference in a way that may deprive that interference of its effectiveness, since most interference on social media platforms requires deception in order to work properly. (Although there are other ways that the government can disclose information to the public, the government often fails to do so, and the criminal process forces public disclosure because open access to the courts is a legal requirement.) Unfortunately, the U.S. government response to election interference is controlled by counterintelligence agencies that have limited experience with information disclosure; these agencies are built to keep and protect secrets, not disclose information to the public, and the institutional structures of these agencies are built for the intelligence threats of a prior era. Chapter 7 closes with a wish list for major reforms in the counterintelligence community so that its agencies can be geared toward disclosing information to the public about foreign information operations.

Chapter 8 pivots towards individual conduct and addresses the particular harm posed by individuals who solicit interference from a foreign state during a federal election. Two examples of solicitation come immediately to mind. The first is Trump’s request during the 2016 campaign that Russia engage in email hacking, and the second is Trump’s solicitation of interference from Ukraine during a phone call with its president in the fall of 2019. A variety of federal and state statutes might apply to these cases of solicitation, although this book will argue that Congress should respond by enacting a new federal statute explicitly criminalizing the solicitation of foreign involvement in federal elections. The chapter closes by responding to the objection that the President’s foreign affairs power allows him to decide, without congressional interference, how to conduct foreign policy, up to and including requesting intervention from foreign states in American elections. This view is exposed for precisely what it is – a monarchical view of the presidency that in any event conflicts with Congress’ preeminent power to enact the boundary regulations necessary to protect democratic institutions.