Moving from Secrecy to Transparency in the Offensive Cyber Capabilities Sector: The Case of Dual-Use Technologies Exports

Author ORCID Identifier

Jonathon Penney: 0000-0001-9570-0146

Document Type

Article

Publication Date

4-2023

Source Publication

Computer Law & Security Review, Volume 48, 2023 https://doi.org/10.1016/j.clsr.2022.105787

Keywords

Hacking; Surveillance; Offensive cyber capabilities; Export control; Dual-use technologies

Abstract

Transparency is central to the prevention of human rights abuses. Over the past few decades, a belief in transparency has permeated multiple industries, reflected in an explosion of legislation intended to further this principle. Yet, despite this emphatic recognition of the importance of transparency, the activities of government and private sector actors involved in the development, sale, and export of Offensive Cyber Capabilities (OCC) remain cloaked in secrecy regardless of the sector’s role in facilitating human rights abuses. In this article, we tackle this broader challenge of secrecy via a case study on the export of dual-use technologies. We theorize why secrecy has been so prevalent in the OCC sector. We consider the role of different forms of secrecy—such as commercial secrecy and opportunistic secrecy by governments—in facilitating this situation. We argue that injecting greater transparency into the OCC sector is critical to deterring human rights abuses through accountability and oversight, can help counter the proliferation of offensive cyber technology proliferation, and can ensure better overall governance in regimes governing the export of dual-use technologies. Mandating transparency by governments and exporting companies in the OCC sector can pave the way for policy changes to better regulate this industry and finds support in international human rights principles related to transparency. In closing, we examine how transparency might be incorporated into export frameworks addressing dual-use technologies.

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