Zero-Click, Zero Clarity: International Law in the Shadowlands of Cyber Espionage

Peacetime espionage is the international lawyer’s recurring paradox: publicly condemned, privately practiced, and quietly tolerated. This hypocrisy is particularly pronounced in the cyber era, where digital operations scale intrusion and potential harm so dramatically that the old pretense of legal ambiguity and silence is increasingly difficult to sustain. To escape this wilderness of mirrors, diplomats have turned, once more, to a worn vocabulary of "sovereignty in cyberspace" and "privacy in data flows” that offers little by way of operational guidance. It is grand enough to signal constraint, and elastic enough to ensure no one will agree on where that constraint might begin, much less what it forbids. Drawing on Professor Asaf Lubin’s forthcoming book, "The International Law of Intelligence: The World of Spycraft and the Law of Nations," this talk traces a different and perhaps more uncomfortable path: it charts a specialized regime of intelligence law that takes seriously the professional standards, historical underpinnings, and institutional realities that structure this customary practice. The result is a legal regime attuned to espionage’s performative character and to the uneasy relationship between collector and target—where protest becomes ritual, deniability a default, and legality must be resilient enough to remain relevant under secrecy rather than collapse into it.

Dr. Asaf Lubin is an associate professor at Indiana University Maurer School of Law and affiliated faculty at the Hamilton Lugar School of Global and International Studies. He is additionally, a faculty associate at the Berkman Klein Center for Internet and Society at Harvard University and an affiliated fellow at Yale Law School’s Information Society Project.