I. Introduction

I. Introduction

I. Introduction

Democracy has never been and never can be so durable as Aristocracy or Monarchy. But while it lasts it is more bloody than either . . . Remember, democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.

U.S. President John Adams¹

Since the U.S. was founded, detractors and critics have heralded its ultimate downfall.² Benjamin Franklin once famously quipped after being asked what sort of government the Founders had gifted the new nation: “A republic, if you can keep it.”³ For the more than 230 years since that time, many of the threats to American democracy, as with other emerging and advanced democracies around the world, have stemmed from internal divisions fed by inequality, injustice, and racism; fissures that have from time to time purposefully been widened and deepened by foreign nations wishing to distract and destabilize the U.S. government.⁴

¹. Letter from John Adams to John Taylor (Dec. 17, 1814), http://perma.cc/724R-ESVB.

². See, e.g., Richard R. Beeman, Perspectives on the Constitution: A Republic, If You Can Keep It, NAT’L. CONST. CTR., https://perma.cc/J36F-2EAP (presenting the initial, objectionable reactions of the Founding Fathers when they were presented with the United States Constitution). ³. Id. ⁴. See, e.g., Josh Zeitz, Foreign Governments Have Been Tampering with U.S. Elections for Decades, POLITICO (July 27, 2016), https://perma.cc/CAQ8- UW5A (noting multiple occasions of foreign interference with American presidential elections).

Recently, Russia has been particularly active, by one estimate interfering in twenty-seven elections since 1991, beginning with the nations of Eastern Europe that had been former members of the Cold War-era Warsaw Pact.⁵ Such efforts have been extended since 2014 to Western Europe and the United States, reaching a culmination in their interference with the 2016 Brexit vote and U.S. Presidential election, made easier by the rise of internet platforms generally and social networking in particular.⁶ Such efforts continued into the 2018 U.S. midterm elections, when U.S. Cyber Command shut down a Russian troll farm on Election Day.⁷

Furthermore, today’s threats to democratic institutions in the United States and abroad are acute, extending from the protection of voting machines and media sites to related issues of critical infrastructure, 5G, and even Internet of Things (IoT) vulnerabilities.⁸ Keeping the Republic for the next century, then, requires a range of policy responses from reigning in the worst excesses of internet platforms to securing the voting process itself to safeguarding democratic institutions from being undermined by both foreign and domestic efforts, offline and online.⁹ Luckily, much as U.S. states are often seen as laboratories for democracy, this debate does not exist in a vacuum.¹⁰ U.S. policymakers can and should learn from what has worked elsewhere in our common quest to make democracy “harder to hack.”¹¹

⁵ See Luncan Ahmad Way & Adam Casey, Russia Has Been Meddling in Foreign Elections for Decades. Has it Made a Difference?, WASH. POST (Jan. 8, 2018, 6:00 AM), https://perma.cc/2BC8-J9MK (examining the two waves of Russian interference with United States presidential elections since the early 1990s).

⁶. See id. (noting that since 2014, Russia has used the internet to spread disinformation campaigns, create fake Facebook profiles, leak emails and fake documents to WikiLeaks, and engage in cyberattacks and phishing attacks).

⁷. See Jacqueline Thomsen, US Cyber Operation Blocked Internet for Russian Troll Farm on Election Day 2018: Report, HILL (Feb. 26, 2019, 12:32 PM), https://perma.cc/MB9T-SWX6 (discussing the ability of the United States Cyber Command to block Russian interference in the 2018 midterm elections).

⁸. See *Scott J. Shackelford et al., *Making Democracy Harder to Hack, 50 MICH. J.L. REFORM 629, 630–33 (2017) (highlighting cybersecurity vulnerabilities in the United States’ national and state electoral systems).

⁹. See id. (evaluating the policy debate surrounding the designation of the United States electoral system as a critical infrastructure).

¹⁰. See id. (detailing instances of election tampering, both internationally and in the United States).

¹¹. See generally id.

Indeed, amidst the regular drumbeat of reports about Russian attempts to undermine U.S. democratic institutions from Twitter bots to cyber-attacks on congressional candidates, it is easy to forget that the problem of election security is not isolated to the United States and extends far beyond safeguarding insecure voting machines.¹² Consider Australia, which has long been grappling with repeated Chinese attempts to interfere with its political system. One 2018 report found that the Chinese have infiltrated “every layer of Australian Government, right down to local councils.”¹³ Yet Australia has taken a distinct approach in how it has sought to protect its democratic institutions, including reclassifying its political parties as “critical infrastructure,” a step that the U.S. government has yet to take despite repeated breaches at both the Democratic and Republican National Committees.¹⁴

This Article details the Australian approach to protecting its democratic institutions from Chinese influence operations and compares it to the U.S. response to Russian meddling efforts. Such a comparative study is vital to help build resilience, and trust, in democratic systems on both sides of the Pacific. But we do not stop there. For the first time in the literature that we could identify, we also analyze the efforts of other leading cyber powers—including the European Union—comparing them against not only the United States and Australia, but also Small Pacific Island Nations, to better understand how to deter misinformation and disinformation campaigns in 2020 and beyond.¹⁵

¹². See Michael Wines & Julian E. Barnes, How the U.S. Is Fighting Russian Election Interference, N.Y. TIMES (Aug. 2, 2018), https://perma.cc/B7LH-D57T (stating that the most pervasive Russian threats are those concerning social media).

¹³. Stephanie Borys, China’s ‘Brazen’ and ‘Aggressive’ Political Interference Outlined in Top-Secret Report, ABC NEWS (May 29, 2018, 5:28 PM), https://perma.cc/D27J-JGDQ.

¹⁴. *See 2016 Presidential Campaign Hacking Fast Facts, *CNN (Oct. 31, 2019, 1:10 PM), https://perma.cc/VUR3-ZJAD (offering a timeline for the investigations and conclusions about the 2016 election hacking efforts).

¹⁵. See Australia Increases Investment in South Pacific Islands in an Apparent Response to China’s Growing Economic Influence in the Region, RWR ADVISORY GRP. (July 13, 2018, 11:52 AM), https://perma.cc/AR8W-5Q7G (recounting the Australian government’s MoU with the Solomon Islands and Papua New Guinea to address China’s growing economic activity in the areas).

In all, we argue that democracies can and should work together to share both cyber threat information and best practices to build resilience in democratic institutions the world over, and that a multi-faceted approach is needed that combines both targeted reforms to secure election infrastructure—such as requiring paper ballots and risk-limiting audits—with deeper structural interventions to limit the spread of misinformation and combat “digital repression.”¹⁶ We assert that it is vital to take this wider view of defending democracy that includes not only a focus on protecting election infrastructure, but also digital repression—both are means to an end, undermining trust, and confidence, in democratic institutions. As such, defending democracy in 2020 and beyond requires implementing policy responses that tackle this full range of cyber-enabled threats, which are not limited to insecure voting machines and processes.¹⁷

The Article is structured as follows. Part II offers a short history of the cyber threat facing democracies, focusing on the role of authoritarian regimes in furthering digital repression. Part III summarizes U.S. efforts to protect election infrastructure post-2016. Part IV features a comparative case study summarizing EU efforts to similarly safeguard their democratic societies as compared to efforts from Australia and Oceania. Finally, Part V crystallizes implications and suggests policy responses to better manage both threats to election infrastructure and digital repression.

¹⁶ See Brandon Valeriano, Welcome to the Age of Digital Repression, QUARTZ (Jan. 14, 2016), https://perma.cc/W9A9-HRTN (deeming cyber repression as one of the digital age’s most important challenges and revealing that Donald Trump and Hillary Clinton previously called for shutting down the internet).

¹⁷. Further, it is important to note that prevalent cyber insecurity can feed digital repression; indeed, oftentimes new regulations from autocratic nations that are designed to address cybersecurity issues often wind up further entrenching repression. See Adrian Shahbaz, Fake News, Data Collection, and the Challenge to Democracy, FREEDOM HOUSE, https://perma.cc/Z3UB-386H (referencing the growing censorship of the internet leading to the disruption of democracies).

I. Introduction

Table of Contents