AuthorFrazier, Kevin

CONTENTS I. Introduction - A Vulnerable, Critical System 1 II. The Undersea Cable System is Essential to a Fast and Reliable Internet 5 III. Two Types of Threats Must be Addressed to Secure the Undersea Cable System 8 IV. Current Legal and Extralegal Frameworks do not Sufficiently Address the Threats to the Undersea Cable System 12 a. UNCLOS Fails to Mitigate Threats to the United States' Cables Because of Omissions in the Text of the Treaty and the Fact that United States is not a Formal Party to the Treaty 13 b. Other Sources of International Law and Norms Offer Only Limited Protection to the United States' Cable System due to Being Outdated or on-binding 17 c. Private Actors Have Proactively Tried to Respond to the Threats to the Undersea Cable System but Lack the Authority and Capacity to Fully Mitigate the Threats 18 V. The United States Should Learn from the Undersea Cable Laws of Other Nations to Better Protect its own Portion of the System 20 VI. The United States Legal Framework and its Policy Responses to System Threats are Insufficient Due to Four Factors 24 a. The Manifold Federal Agencies with Some Authority Over Undersea Cables Hinder the Development of a Comprehensive Protection Regime 24 b. Insufficient Penalties for Breaking Cables Fail to Deter Unintentional Breaks 26 c. Federalism Undermines a Comprehensive Approach to Undersea Cable Protection Because States Often have Policy Priorities that Conflict with Protecting the System 27 d. Private-sector Stakeholders have Succeeded in Creating Patchwork Protections of the Undersea Cable System, but Those Protections are far from Comprehensive 29 VII. The New United States Presidential Administration Should Adopt Short-and Long-Run Responses to the Threats to the Undersea Cable System 30 a. Neither Ratifying UNCLOS nor Creating Cable Protection Zones Will Adequately Address the Threats to the Undersea Cable System in the United States 30 b. Gathering and Sharing Information Related to Undersea Cable Threats Will Immediately Increase Deterrence By Making Attribution of Breaks Easier 33 VIII. Conclusion 36 I. Introduction - A Vulnerable, Critical System

Picture this hypothetical: in the dark cloud of night, several Russian submariners prep for a world-changing mission. Covered by an even darker sea, the submarines sail west to the coast of California; more specifically, the submarines target a small slice of the coast--the approximate 200 miles between Morro Bay and Redondo Beach in which seventeen different undersea cables lay unprotected on the ocean floor. (1) After decades of investment in its Pacific Fleet, (2) the Russian government is ready to reap a return in the form of disrupting the Internet.

Once in place, the submarines begin their operation. Designed to perform technical work on the ocean floor, these machines are equipped for the task at hand: (4) cutting the undersea cables--not that it is especially hard given that the cables are comparable in size to garden hoses. (5)

The small breaks in each of the cables amount to large disruptions to Internet access at both ends of the cables--the contiguous United States, where the cables launch, and the respective end destinations of the cables, including Hawaii, Japan, the Philippines, and Peru. (6) Internet service continues in each of these places but at much slower speeds. The undersea cable system is fairly redundant (7)--meaning that multiple cables often land at a single destination to prevent a single cable break from causing too much disruption. (8) However, a geographically-specific attack such as this one would force more Internet traffic to travel through satellites because the redundancy of the system would become a bug, rather than a feature. The high number of cables in close proximity would allow for a few submarines to knock out many cables. The resulting shift in traffic would result in lower quality, less reliability, less security, and more expensive Internet service. (9) Undersea cables, made up of fiber optic cores, "transfer data five times faster than satellites [and] do so at a vastly lower cost," according to Rishi Sunak, British Parliamentarian and author of a report on undersea cables. (10)

With Americans tweeting, albeit with less speed, about their sluggish Internet, the USNS Zeus, the U.S. Navy's lone cable repair ship, (11) mobilizes... from Norfolk, Virginia... to respond to the threat in California. (12) Public and private actors demand a more expedient solution but receive an unsatisfactory response because the Navy has not outlined a plan for defending undersea cables. (13) Ultimately, the United States Federal Government calls on the International Cable Protection Committee (ICPC) for assistance. The ICPC, whose 170 members account for ownership of 97 percent of the world's undersea telecom cables, (14) coordinates a fleet of undersea cable repair ships. After several weeks and more than $17 million in repair costs, (15) the cables are restored.

This hypothetical is not far from reality. In 2008, an accidental cable break in the Mediterranean Sea diminished the reliability and quality of the Internet to such an extent that the United States military had to scale back its drone operations in the Middle East by an order of magnitude. (16) Similarly, when a cable connected to Vietnam failed in 2017, Internet customers in Ho Chi Minh briefly lost connectivity. (17) Intentional breaks of cables have also wreaked havoc on some nation states while advancing the aims of others and affiliated non-state actors. (18) As flagged by the think tank Chatham House and reported by the BBC, Ukrainian telecom providers noticed disruptions to an essential Internet exchange point as well as to cable connections in the midst of Russia's military action in the Crimean Peninsula in 2014. (19)

The under-discussed importance and vulnerability of the undersea cable system merit increased attention from, and action by United States policymakers. Society's increased reliance on the Internet justifies addressing the vulnerabilities of the system. (20) Additionally, absent action in the short-run, other activities in the sea will make future efforts to remedy the system even harder; increased exploration and exploitation of the seabed, for instance, is bringing new stakeholders into the proverbial arena and threatening to crowd out the interests of undersea cable operators. (21)

This paper contains six sections: a discussion of the importance of the undersea cable system to the Internet, an overview of the sources and severity of risks to that system, an assessment of the adequacy of the various legal frameworks and industry standards related to the system, a review of actions by other public and private actors to protect the system, an examination of the shortcomings of United States law and policy related to the system, and a proposal for policy responses by the United States.

Several issues are outside the scope of this paper. The impact of the undersea cable system on marine life and ecosystems will go uncovered. An authoritative report produced, in part, by the ICPC reports that the "laying of [undersea cables] on the surface of the ocean floor has a minor if not negligible one-off impact." (22) Nevertheless, some of the solutions discussed in Section VII may benefit marine life and ecosystems. Those secondary benefits will be left to others to fully examine. (23) This paper will also not provide a thorough examination of the issues related to cybersecurity and espionage associated with the undersea cable system. The decision to avoid these topics is based on the difficulty of eavesdropping via undersea cables and the ease of other means to accomplish the same objective. (24)

This paper instead is focused on raising awareness around the vulnerability of the undersea cable system during a time, in the midst of the COVID-19 pandemic, when Internet access is more important than ever. (25)

Furthermore, this paper aims to motivate action from Federal Government stakeholders in the wake of the transition to a new presidential administration; this transition presents an opportunity to reassess the current United States legal and policy approaches to the protection of the undersea cable system.

The paper will reveal the following conclusions: first, the protection of the undersea cable system is essential to a functioning Internet and, therefore, the economy, culture, and governance; second, intentional attacks by state and nonstate actors and unintentional breaks by commercial actors pose the two greatest threats to the system; third, international law inadequately addresses those threats; fourth, United States domestic law also insufficiently addresses those threats; and, fifth, the United States Federal Government can most effectively and efficiently reduce the likelihood of those threats occurring and the severity of damage those threats could cause by partnering with the owners of the cables themselves to implement policy solutions.

  1. The Undersea Cable System is Essential to a Fast and Reliable Internet

    Undersea cables are foundational to a safe, reliable, and global Internet. Upwards of 97 percent of all Internet traffic travels on undersea cables. (26) "Submarine cables," as reported by The Working Group of the Communications Security, Reliability, and Interoperability Council, "provide the principle domestic connectivity between the contiguous United States" and its offshore states and territories (see Figure 2). (27) As of 2014, Internet cables carried more than 95 percent of United States Internet traffic, a percentage that is almost assuredly higher as of this writing. (28) Most of these cables have a series of fiber optic cables at their core; these cables are hair-thin strands of glass that allow for data to travel as wavelengths of light at speeds of approximately 180,000 miles per second. (29)

    The private and public sectors rely almost exclusively on...

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