US Sanctions on Russia Rewrite Cyberespionage's Rules

Less than four months after the revelation of one of the biggest hacking events in history—Russia’s massive breach of thousands of networks that’s come to be known as the SolarWinds hack —the US has now sent the Kremlin a message in the form of a punishing package of diplomatic and economic measures. But even as the retribution for SolarWinds becomes clear, the question remains: What exactly is that message? By most any interpretation, it doesn’t seem to be based on a rule that the United States has ever spelled out before.
On Thursday, the Biden administration fulfilled its repeated promises of retaliation for both the SolarWinds hacking campaign and a broad array of other Russian misbehavior that includes the Kremlin's continuing disinformation operations and other interference in the 2020 election, the poisoning of Putin political adversary Aleksey Navalny, and even older Russian misdeeds including the NotPetya worm and the cyberattack on the 2018 Winter Olympics . The Treasury Department has leveled new sanctions at six cybersecurity companies with purported ties to Russian intelligence services, as well as four organizations associated with its disinformation operations. They also specifically targeted oligarch Yevgeniy Prigozhin and Kremlin agent Konstantin Kilimnik, whom you may recall from the Mueller investigation .
But the most prominent of those sanctions—and most unprecedented—is the administration’s specific response to the SolarWinds campaign, in which the Russian foreign intelligence agency known as the SVR hid their code in the software updates of the SolarWinds IT management tool known as Orion to penetrate as many as 18,000 networks. Using that software supply chain attack and other vulnerabilities, the SVR breached at least nine US federal agencies, including the Department of Justice, DHS, the State Department, and NASA.
Russian intelligence services, the sanctions statement from the US Treasury reads, “have executed some of the most dangerous and disruptive cyberattacks in recent history, including the SolarWinds cyberattack,” officially naming the SVR for the first time as the culprit behind SolarWinds. “The scope and scale of this compromise combined with Russia’s history of carrying out reckless and disruptive cyberoperations makes it a national security concern. The SVR has put at risk the global technology supply chain by allowing malware to be installed on the machines of tens of thousands of SolarWinds’ customers.”
But look closely at the SolarWinds sanctions response, and it's tough to see exactly what rule or norm for the world of state-sponsored hackers the Biden administration is seeking to write—or at least, what rule that the US itself hasn't broken in its own hacking operations—says Bobby Chesney, a law professor at the University of Austin focused on cybersecurity and national security. Any rule that SolarWinds violates would be a new one, he argues, given that the hacking campaign was by all appearances focused on the kind of cyberespionage US intelligence agencies routinely carry out, with no clear evidence that it was intended to cause disruptive effects. The SVR hackers were even somewhat restrained, going so far as to use a kill-switch that removed their malware from targets they didn't intend to spy on.
"It's all espionage, right? In fact, it looks like a fairly carefully crafted espionage campaign," says Chesney. "And so the question is, since we're now saying that crossed a line—you can't sanction somebody and say you're retaliating and punishing them for this and not mean to be drawing some kind of red line—what is it?"The difference, Chensey suggests, is one of scale rather than substance. The SolarWinds hacking campaign took a "shotgun, blunderbuss" approach that could distinguish it. The SVR's corruption of the software supply chain could be seen as uniquely reckless, but the US has tried that too, with operations that have compromised Cisco routers during shipping or built backdoors into the Swiss encryption software firm Crypto AG .