Submarine Cables, Cybersecurity and International Law: An Intersectional Analysis
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From a global and national security perspective, submarine communications cables also play an essential role. For example, “a major portion of the [U.S. Department of Defense] data traveling on undersea cables is unmanned aerial vehicle (UAV) video, essential for war preparation.”49 As one scholar observed, “without ensured cable connectivity, the future of modern warfare is in jeopardy.”50 A further example of the importance of cables to the military is the development of the Global Information Grid (GiG) by the U.S. Department of Defense.51 The GiG is the “globally, interconnected, end-to-end set of infor- mation capabilities for collecting, processing, storing, disseminating and managing information on demand to warfighters, policy makers and support personnel.”52 The Grid utilizes portions of the international telecommunications systems and has been described as a “global network that can be used to control a global battlespace.”53
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The U.S. Department of Defense listed the world’s cable landing sites as among the most critical of infrastructures for the United States.183 Cable landing sites are concentrated in a few geographic areas due to high expense and economies of scale.184 According to one report, there are at least ten major cable chokepoints that exist globally.185 As observed by one commentator:
The most dangerous vulnerability is the aggregation of high-capacity bandwidth circuits into a small number of unprotected carrier hotels in which several hundred net- work operators interconnect their circuits in one non-secure building. These buildings often feed directly into the international undersea cable system. Security is often farcical. This lack of protection exists in several carrier hotels on transit points along the axis of the international telecommunications system that includes Dubai, Zurich, Frankfurt, London, New York, San Francisco, Los Angeles, Tokyo, Hong Kong and Singapore.186
Apart from cable landing sites, another vulnerability is the vast network of submarine cables on the seabed itself. Telecommunications companies “concentrate a large percentage of overall bandwidth in just a few major cable systems because new cable designs also incorporate tremendous capacity.”187 Cables also tend to be bundled together, “offering a potentially lucrative, consolidated target for sabotage.”188 If a bundle of cables are severed all at once, it could result in responders having little to no chance of restoring the connection by rerouting the traffic to mitigate the effects of the cut.189 Due to the unpredictable ocean environment, there are obvious challenges in actually carrying out an attack, however, a disruption could occur as a result of something as simple as dropping an anchor on a cable or sending a scuba diver down to physically cut them (all cable routes are publicly available).190 Further, one scholar has pointed out the possibility of nefarious elements using an Unmanned Undersea Vehicle (UUV) to attack cables.191
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In November 2007, there was a report of the intentional sabotage of a cable in Bangladesh, which resulted in a total loss of communications for at least one week causing a loss of 1.05 million U.S. dollars in revenue by the Bangladesh Telegraph and Telephone Board.201 In addition, there have also been reports of cable theft in Jamaica in 2008 where Cable and Wireless Jamaica lost 1.5 million dollars,202 and a 2010 attack by separatists against the beach manhole con- nection of a submarine cable system linking the Philippines with Japan.203 In March 2013, it was reported that 16 tons of submarine cables laid on the sea- bed between Bangka Island and the Riau Islands in Indonesia were stolen.204 Perhaps more disturbingly is an incident that occurred in April 2013, when there were interruptions on multiple undersea communications cables that link Europe to the Middle East and Asia including I-ME-WE, TE North, EIG and SEA-ME-WE 3.205 While initially chalked up to dragging ship anchors, the Egyptian coast guard caught three divers trying to cut the SEA-ME-WE-4 near Alexandria, although the motives of such an act remain unknown.206
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Whether UNCLOS can be used to address the mass surveillance carried out through the tapping of undersea cables is not entirely clear. To the extent that UNCLOS governs intelligence gathering activities, it could be argued that it only applies to intelligence gathering activities that take place within the mari- time domain, and will not govern the use of intercepts at cable landing stations. Further, if indeed mass surveillance can be done by physically tapping undersea cables by splicing the cable or otherwise, it is also not certain that UNCLOS is the applicable regime to govern such acts. Such surveillance does not fall within conventional perceptions of military activities/intelligence gathering at sea, which as mentioned above, is targeted, and aims at enhancing knowledge of the marine environment and/or the military capabilities of other State’s navies. That said, UNCLOS is of course a living instrument and subject to evolutionary interpretation, and for present purposes, this Article will as- sume that UNCLOS applies to the mass surveillance carried out by tapping undersea cables to the extent it involves physically tapping cables as they lay on the seabed.
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In areas outside of territorial waters, namely the EEZ and the high seas, Article 113 applies. To recapitulate, Article 113 of UNCLOS requires States to adopt laws and regulations to provide that the breaking or injury by a ship fly- ing its flag or by a person subject to its jurisdiction of a submarine cable be- neath the high seas done willfully or through culpable negligence is a punisha- ble offense.217 While Article 113 could in principle cover intentional damage to the cable network, it has several limitations that render it ineffective at address- ing these threats. First, many States Parties to UNCLOS have not implemented their obligation under Article 113 to extend criminal jurisdiction over acts committed on the high seas or EEZ.218 The States that have implemented Article 113 are usually implementing their obligations under the 1884 Cable Convention; meaning their legislation has not been updated and the penalties are consequently woefully inadequate.219 The most common penalty in national legislation for intentional damage to cables is a monetary penalty,220 which is arguably not commensurate with the damage resulting from intentional inter- ference with cable systems.
Second, jurisdiction under Article 113 is limited to perpetrators who are na- tionals of that State, or if they use a vessel flying the flag of that State.221 Given the critical nature of submarine communications cables there is a strong argument that intentional damage is a crime that attracts universal jurisdiction and that all States should have jurisdiction over the offender. At the very least, the State(s) whose communications have been disrupted should have jurisdiction to prosecute as well as the State on whose continental shelf the damaged cable is located.222
Third, Article 113 only obliges States to adopt laws criminalizing intentional damage, and neither gives warships the right to board, nor arrest a vessel sus- pected of intentionally breaking a cable.223 Generally speaking, due to concerns about unnecessary interference with the freedom of navigation, the right to board vessels in areas outside the territorial sea (i.e. EEZ/high seas) is highly regulated under UNCLOS and is only allowed in certain instances.224 States have opposed a right to board without the consent of the flag states even for the suppression of the most serious crimes.225 However, there is some merit in the argument that warships of all States should have the right to board vessels suspected of intentionally breaking a cable. For example, Article X of the 1884 Cable Convention allows warships to require the master of a vessel suspected of having broken a cable to provide documentation to show the ship’s national- ity and thereafter to make a report to the flag state.226 This provides an effective deterrent to prospective attacks.