Washington and Lee Law Review Online


In May 2014, the Federal Bureau of Investigation indicted five Chinese nationals for cybercrimes against American companies. That indictment was an impotent response. The United States has no extradition treaty with China, and the defendants will in all likelihood never be tried in the United States. The inefficacy of the indictments highlights a larger problem: State-controlled cyberunits can act with impunity under the present mix of international and domestic law. No laws govern conduct between nation-states, and, thus, neither victims nor nation-states have recourse against violators. This Article suggests that the United States should pursue national interest diplomacy to triangulate Russia and China by negotiating a trilateral cyberlaw treaty. The Article first demonstrates why the United States has failed in bilateral negotiations with these two nations in the past. It proposes that the United States should shift strategies by beginning to pursue national interest diplomacy rather than multilateral diplomacy. This strategy would encourage rapprochement with Russia first, thereby putting pressure on China to join the treaty or else be isolated. Finally, the Article lays out a workable framework on which policymakers can construct the diplomatic means to secure restitution for the victims of cyber-attacks.

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