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TU Law professor explores the role of U.S. and international law to mitigate foreign interference in elections

If Russia’s interference in the 2016 United States presidential election was a challenge, in 2020 it is set to become even more brazen and sophisticated in the Kremlin’s attempt to get President Trump re-elected. The University of Tulsa College of Law’s Ido Kilovaty focuses on how U.S. and international law could be used to mitigate the threat of election interference. “While there isn’t a silver bullet solution that could fully address and prevent election interference in the digital era,” Kilovaty observed, “some portions of U.S. and international law may offer some relief.”

Kilovaty is the inaugural Zedalis Family Fund Professor of Law. This professorship was generously created by former TU Law Professor Rex Zedalis in order to promote excellence in instruction and scholarship at the college. Kilovaty currently teaches courses in cybersecurity law and policy, computer crime law, international law and technology law.

Professor Ido Kilovaty teaching in a TU College of Law classroom
Professor Ido Kilovaty

An expert in cybersecurity law, cybercrime and international law and cyberspace, Kilovaty has published extensively in these areas in, for example, Ohio State Law Journal, Berkeley Technology Law Journal, Harvard National Security Journal, UC Irvine Law Review (forthcoming) and Tennessee Law Review (forthcoming). “Ido Kilovaty is one of the most exciting voices in the country on cyberlaw,” said Oona Hathaway, the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School. “His combination of technical know-how, creative vision and deep understanding of the law allows him to see things that others miss. He is writing up a storm and, in the process, helping to create and shape a new field of cybersecurity law.”

“Non-intervention” in the digital age

At present, Kilovaty is studying how U.S. law could adapt to the increasing volume of availability attacks, such as distributed denial-of-service and ransomware; how private tech companies are setting the agenda for international cybersecurity norms; and the ways human rights law applies to extraterritorial state-sponsored activities. This last topic directly pertains to the threat of Russian interference in U.S. elections.

International law prohibits states from coercively interfering in each other’s domestic affairs, whether social, political or economic. This is often referred to as “non-intervention.” Any election interference that reaches a certain level of magnitude and coercion would, therefore, be in violation of international law. However, Kilovaty’s research has found that the application of this longstanding norm is not as straightforward as it might seem.

graphic illustration of a ballot box protected by key terms in Kilovaty's argument“While cases where one state tells another state ‘Do X, or else’ may offer a clear-cut example of prohibited intervention, the use of political bots, disinformation, and distribution of sensitive documents may not necessarily reach the requisite level of ‘coercion’ required by non-intervention,” he explained. “This really calls us to reconsider what non-intervention ought to mean in the digital era, where acts of interference may be harmful despite the fact that they do not reach the level of coercion required by international law.”

Kilovaty published an article about non-intervention and election interference in 2018 in the Harvard National Security Journal. Since then, however, he has become convinced that the legal answer may come from a different direction.

“Non-intervention is still good law, but it’s not great,” Kilovaty opined. “That is because it misses a substantial portion of state-sponsored acts, such as election interference through cyberspace, which do not fit the centuries-old criteria of the law.”

The human right to cybersecurity

Kilovaty now proposes a different – better – approach: international human rights law, which looks at the specific individual rights that are violated when states interfere in each other’s political processes.

To bolster this contention, Kilovaty has argued for the recognition of a new human right: the human right to cybersecurity. Part of his research program at present entails exploring whether states should be obligated to respect the human rights of individuals outside of their territory. “For example,” he remarked, “is Russia under the obligation to respect the human rights of Americans, and vice versa? The answer, I argue, should be ‘yes.’”

The role of computer crime and cybersecurity law

But the overall legal approach to tackle election interference, Kilovaty believes, cannot be limited to international law. U.S. computer crime law and cybersecurity law also have their respective roles to play in addressing foreign election interference.

On Kilovaty’s account, computer crime law may provide some degree of deterrence, albeit limited. “Special Counsel Robert Mueller’s indictment of 12 Russians involved in the Democratic National Committee hack illustrated the strengths and weaknesses of reliance on the domestic criminal justice system to address foreign election hacking.”

Similarly, Kilovaty believes that cybersecurity law may be used to improve the overall cybersecurity of election infrastructure in a way that decreases the likelihood of successful foreign election interference. “At the end of the day, if hackers can find a vulnerability in a voting machine, they are able to exploit it. If they can’t find vulnerabilities, then interference becomes much more difficult. The role of cybersecurity law is to provide incentives for good security practices and sanction those that are not taking their cybersecurity seriously. On a more individualistic level,” he remarked, “if we are able to secure our own devices, and become more judicious of what we read online, then that would similarly decrease the efficacy of any election interference attempts.”

Overall, Kilovaty contends, there is a lot the law can do to address election interference, but it cannot be a one-size-fits-all solution. Different areas of law, both domestic and international, will have to be adapted in concert with each other to effectively deter, prevent and mitigate election interference in the digital era.


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International access-to-justice and human rights expert joins TU Law

The University of Tulsa College of Law community is thrilled to welcome Roni Amit as an assistant clinical professor and the director of its Terry West Civil Legal Clinic, which is made possible through a generous grant from the Sarkeys Foundation. Amit joined TU Law on August 1, 2019, and she will spend her first semester planning the shape and direction of the college’s newest addition to its clinical education program.

“My colleagues and I are very pleased to welcome Roni Amit to the TU College of Law,” said Dean Lyn Entzeroth. “Under her leadership, I believe the Terry West clinic will offer an enriching learning experience for our students while addressing important legal needs in the community.”

Amit will be bringing with her a wealth of experience and energy. Since 2017, she has been a clinical fellow in the Deportation Defense Clinic at Hofstra University School of Law, where she worked with immigrant communities on Long Island. Amit’s scholarship focuses on rights protection, administrative processes and the efficacy of public interest litigation, and she has been extensively involved in research and advocacy in the areas of access to justice and human rights in the United States, Israel and South Africa.

“Sarkeys is very excited to partner with Roni Amit for the Terry West Civil Legal Clinic at the University of Tulsa College of Law,” said Kim Henry, the Sarkeys Foundation’s executive director. “Roni has all the credentials we were looking for in a person to run this very worthwhile program. We are thrilled to welcome her to Oklahoma and look forward to working with her and assisting in what will be many years of success in improving the lives of Oklahomans.”

Getting acquainted

In order to get to know our new colleague better, we recently had a wide-ranging chat about Amit’s view of clinical education programs, her hopes for the Terry West Civil Legal Clinic and what she’s looking forward to about living here in Oklahoma. Here are our questions and Amit’s thoughtful responses.

What roles do law schools’ legal clinics/clinical education programs play in training JD students and in serving the community?

“Legal clinics have an important social justice role to play within the community. By engaging with the community on multiple levels, clinics can serve individual clients and also advocate for broader structural reforms that advance social justice, pursuing advocacy both inside and outside of the courtroom.

“In addition to developing concrete lawyering skills, for me, one of the most important aspects of clinical legal education is the opportunity it provides students to see how the law works outside of the classroom. Students are exposed to the role of the law in the lives of marginalized communities, which may be very different from how it is represented in the classroom and in case law.

“Legal clinics also give students the chance to work with individuals whose life experiences may be very different from their own and to think about their role as lawyers, about the lawyering process, and about how best to advocate for their clients by understanding the law within the broader context of poverty, discrimination, and the power dynamics underpinning the law.”

What are you looking forward to accomplishing as director of the Terry West Civil Legal Clinic? What is your vision for this clinic?

“My vision for the clinic is to make justice real for marginalized people. The promise and potential of legal rights often remain inaccessible to those lacking political and economic capital. I hope to develop the clinic and TU Law as an integral part of the community and an important resource for community members in accessing their legal rights.

“This engagement will also teach students to actively use the law as an instrument for social change. I envision the clinic engaging with issues affecting the community through a range of advocacy strategies building on local dynamics to find the most effective mechanisms for individual and structural change. By fostering increased student and community engagement with the legal system, the Terry West Civil Legal Clinic will empower community members to use the law to overcome legacies of exclusion and discrimination, while exposing students to the ways in which these legacies interact with the legal system.”

You live and work on the east coast and you received your doctorate on the west coast. What’s drawing you to come live and work down here in the southern Heartland? What are you looking forward to professionally and personally from this big move and lifestyle change?

“My experience in the U.S., South Africa and elsewhere taught me both the integral role that local dynamics play in driving social change and the importance of bringing local priorities into national campaigns. I hope to use my background and experiences to build coalitions that ensure that the experiences of Tulsa’s marginalized communities are reflected in local and national campaigns. I am looking forward to joining Tulsa’s dynamic activist community and complementing their important social justice work.

“On a personal level, I am excited to trade in my Brooklyn apartment and daily three-hour commute for a house with a yard – and maybe even a dog. I am also looking forward to exploring Tulsa’s parks and vibrant culture.”

TU Law: Committed to public service

At TU Law, we believe in instilling a lifelong commitment to public service by providing opportunities for students, faculty and staff to volunteer with community-based organizations that address unmet legal needs and give back to our neighbors. Over the past year, our members contributed 3,752 pro bono and public service hours as well as 16,485 legal clinic hours