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Strife Feature - Spying on Friends

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By Anastasia Beck

In the aftermath of the allegations of the US National Security Agency (NSA) spying on allied states such as Germany, and accusations from the White House concerning alleged spying by Britain’s GCHQ on Donald Trump during his presidential campaign, moral questions have arisen regarding spying on one’s allies. The gravity of these incidents was further underlined by the moral outrage around such aspects by politicians in these countries. However, are such reactions disproportionate and should countries expect this sort of behaviour due to the tumultuous nature of the international stage?

This article will discern whether it is possible to legitimise the action of spying on one’s allies by first looking at the debate through a theoretical lens, using the Just Intelligence Theory. In the corresponding sections, I investigate the nature of ‘alliances’ and follow it up with an assessment of previous examples of friendly spying that underscores how spying on one’s allies is imperative in the current international system.

As part of the Snowden leaks, a presentation slide was released depicting NSA signals intelligence operations around the world which collect data from many countries, even allies.

The Just Intelligence Theory

From a theoretical perspective, states should not spy on each other. This view stems from the application of the Just Intelligence Theory to friendly espionage. ‘By using the Just War tradition as a base it is possible to establish a set of just intelligence principles that can limit the harm intelligence collection causes while outlining what circumstances would be required to justify the harm caused.’[1] The just intelligence principles include: having a just cause, a legitimate authority to sanction the activity, be conducted for the intended purpose, be proportionate, be used as a last resort, and discriminate between legitimate and illegitimate targets.[2]

The first principle, having a just cause to conduct intelligence, would require there to be a substantial threat to justify any harm caused through the collection of intelligence. As it is the security services’ duty to preserve and maintain national interests, a high-level threat would provide sufficient cause to conduct intelligence activities. For example, during the Cuban Missile Crisis in 1962, Britain’s secret intelligence service MI6 and USA’s Central Intelligence Agency (CIA) utilised a Soviet spy - Oleg Penkovsky - to relay vital information back to the West regarding Soviet intentions and capabilities. The near possibility of total war occurring between the two super powers justified the use of spying against the Soviet Union. However, when one examines intelligence collection on friendly states, it is hard to justify a similar action. Spying on your allies entails that there is no immediate threat, and is instead being conducted because of a general understanding of the targeted state’s nature and not because of an overt provocation. However, the just intelligence theory, much like the just war theory, ‘is blind to general information about states and information that does not amount to identifying a concrete threat’ can therefore not be used as a justification for intelligence collection against them.[3] To be clear, general information would surmount to a state’s religion and political position, so for example, if one were at odds with an allied state’s political system that alone does not justify spying on it. Thus, from a theoretical perspective, spying on one’s allies does not have a just cause, thereby making the whole activity unjust.

Another principle requires sticking to the stated purposes, and not diverge for political, economic or social objectives. And yet, spying on your allies often does not meet this condition. Once again, a government’s role is to safeguard the interests of the nation, and this would require knowledge around fiscal, foreign or defence policies of allied states. For example, one could argue that, due to rising tensions within the European Union on spending towards Greece, it would seem appropriate for Germany to keep abreast of any changes in Greek fiscal policy - which the Greeks may not wish to openly disclose.[4]

However, this theory is not a legal doctrine and few states would give up vital information on fellow states to follow such stringent rules. Furthermore, the international system is extremely competitive and anarchic, with state’s wishing to pursue strategies in consonance with their national interests.

What needs to be therefore examined is what it means to be an ally in the international system and whether the true nature of alliances justifies the use of spying on one another. Alliances and friendly relationships are merely ‘mutual-defence pacts’ between states that often share and adhere to particular norms and practices.[5] But states are in competition with one another, with allies pursuing their own national interests above that of others.[6] As a result, trust among states in the international system is fragile due to the uncertainty surrounding the possibility of opposing views of leaders of governments which may affect their positions abroad.[7] It is this uncertainty surrounding intentions, and the possibility of its translation into policy, that may motivate a state to conduct surveillance on the inner debates and workings of partner countries. It would be foolish to blindly trust their partners. As history has illustrated, allies often diverge and defect from previously agreed upon policies.

Examining transatlantic alliances

“A friend today can become an enemy tomorrow” is a phrase which can be applied quite successfully towards past and present-day alliances. Due to the competitive nature of the international system at large, allies’ interests may diverge, therefore an understanding of such change is required. A good example of this would be the alliance between Germany and the US. Many would agree that these two states - both NATO members - have a warm relationship. Spying on the Germans has had positive outcomes. In the 1970s, at the time of the Cold War, West Germany, a US ally, had discovered that the East Germans had planted a communist spy in West German Chancellor Willy Brandt’s inner circle.[8] When the infiltration was revealed, the damage was NATO-wide, with Brandt having to resign after it was found that his letters to President Nixon had been compromised.[9] However, in modern times, Germany has diverged and disagreed with certain US policies, thus undermining US interests. In 2011, Obama expressed his desire to intervene militarily in Libya but faced opposition from German Chancellor Angela Merkel. Had the US intervened in Libya, Merkel could have used her influence to reduce NATO’s participation in the conflict.[10] Additionally, ‘Washington and Berlin have clashed over how to manage the eurozone crisis, the resolution of which have far-reaching implications for the German and US economies’.[11] The NSA wiretapping Merkel’s mobile phone may seem personal and invasive, but with the power that Germany has today and its ability to undermine its allies’ interests, it would seem logical to maintain a close eye on any developments within.

Close allies for many years, Germany and the US are arguably facing a particularly frosty relationship after allegations of NSA wiretapping of the Chancellor’s personal mobile.

Another close ally of the US who has expressed outrage of being targeted by NSA spying is France, but once again this European ally has also had a tendency to diverge from US policies. Under Charles de Gaulle, France continually turned its back on the US. De Gaulle announced a ‘national independence policy’ that contained a nuclear plan pertaining to ‘a strategy of defence in all directions’ - which also seemed to suggest that the US may one day become an enemy of France.[12] Also, the French vetoed Britain’s entry into the European Economic Community - that would later advance to become the European Union - thereby weakening its trans-Atlantic ties. ‘De Gaulle even tried to persuade the leader of Western Germany to loosen his ties with NATO, which would have undermined the US-led coalition and damaged the course of the Cold War.’[13] Thus, as a result of such history of divergence, it would appear logical for the US to spy on its French ally due to France’s history of divergence.

The US and Britain have long been considered the closest of allies, but even these two friends have been known to spy and conduct espionage against each other. In 1917, the British government wanted the US to join the fight during the First World War, and on Britain’s side. ‘The British used a whole range of overt and clandestine methods to gather intelligence and run influence operations’ including one example of ‘the surveillance of a US transatlantic cable’ in which Britain’s foreign intelligence service learned of a dubious German plot to win Mexico’s allegiance by promising the country a chunk of US territory.[14] Masking the source of the information, British foreign intelligence relayed this intelligence to Washington, thus influencing the US to join the war. During the Cold War, America’s Venona Project ‘revealed that sensitive documents were being sent to Moscow from the British Embassy in Washington.’[15] By spying on its closest ally, the US were able to discover that there were two British double agents, Donald MacLean and Guy Burgess, working for the Soviets and had just defected. These agents were compromising American national security, of which its ally had not been able to detect. Another example of friendly spying was the Suez crisis in 1956. Former US President Eisenhower, having been left out of the strategic planning of the Anglo-French-Israeli invasion of Egypt, decided that it was imperative to know what his allies were up to.[16] He utilised his imagery intelligence capabilities through the use of U-2 planes which were sent over British, French and Israeli military sites in the eastern-Mediterranean and the Middle East, and the reconnaisance through the U-2s gave Eisenhower important clues about his allies’ military operations for, and execution of, their invasion of Egypt.[17] From these examples, it is clear that even the closest of allies feel the need to spy on each other for the sake of preserving their own national interests. Maybe it isn’t so inconceivable that GCHQ wiretapped Trump Tower in the run-up to the presidential elections, considering that he would become the leader of one-half of the “special relationship”.

The relationship between Britain and America has long been considered a close one, but even these two allies have been known to spy on each other.

Spying among friends

If one is caught spying on allies, it is of course damaging. The revelations that the NSA were spying on allied leaders complicated efforts to negotiate a transatlantic trade and investment agreement and gave ‘ammunition to people who are worried about the globalization of information and who would like governments do more to protect privacy and limit governmental data-collection.’[18] And yet, one must note that when leaders such as the French President François Hollande and Merkel come out in anger against alleged spying, they are often doing so to appease their outraged publics.[19]. The above examples show how volatile and fluctuating alliances can be, thereby justifying why spying on each other is a necessity.

Allies spy on each other so as to know of other’s intentions and changes in policy. Whilst it may be immoral to conduct espionage on our friends, it would seem damaging not to do so. If spying has positive outcomes and the interests of a nation, then it is reasonable for a state to pursue such measures. In light of the above question, one can look to recent developments between Britain and Spain over the long-contested territory of Gibraltar following Britain’s decision to leave the EU. Spain’s illegal incursion into Gibraltar’s waters is yet another sign that alliances are fragile, with high chances of states undermining another’s sovereign interests, leading to the conclusion that spying can indeed take place amongst friends.

Anastasia Beck is a postgraduate student studying Intelligence and International Security in the Department of War Studies at King’s College London (KCL). Anastasia’s research areas include counter-radicalization, the role of intelligence in both peace and conflict, and open-source intelligence.

Notes:

[1] Walt, S. ‘News Flash: States Spy on Each Other’, Foreign Policy, Date accessed: 1st April 2017 http://foreignpolicy.com/2013/07/01/news-flash-states-spy-on-each-other/

[2] Ibid.

[3] Fisher, Max. ‘Why America spies on its allies’, http://www.wikiwand.com/en/Global_surveillance_disclosures_(2013–present)

[4] Ibid.

[5] Ibid.

[6] Sims, J. ‘I Spy…’, available here at https://www.foreignaffairs.com/articles/2013-11-06/i-spy

[7] Bucknam, M. ‘The Eisenhower Administration and the Suez Crisis: Spying on Allies and Friends’ National War College (2000) pg. 3

[8] Ibid pg. 5

[9] Bellaby, R. ‘What’s the Harm: The Ethics of Intelligence Collections’ Intelligence and National Security 27:1 (2012) pg. 108

[10] Ibid pg. 109

[11] Bitton, R. ‘The Legitimacy of Spying Among Nations’ American University International Law Review 29:5 (2014) pg. 1020

[12] Stout, M. ‘Can Spying on Allies Be Right?’ War on the Rocks Date accessed 1st April 2017 https://warontherocks.com/2013/11/can-spying-on-allies-be-right/

[13] Colby, E. ‘Why We Must Spy on Our Allies’ The National Interest Date accessed: 29th March 2017 http://nationalinterest.org/commentary/why-we-must-spy-our-allies-9493

[14] Ibid.

[15] Easley, L. ‘Spying on Allies’ Survival 56:4 (2014) pg. 143 DOI: 10.1080/00396338.2014.941545

[16] Fisher, M. ‘Why America spies on its allies (and probably should)’ The Washington Post Date accessed: 1st April 2017 https://www.washingtonpost.com/news/worldviews/wp/2013/10/29/why-america-spies-on-its-allies-and-probably-should/?utm_term=.90f50ccedacc

[17] Ibid.

[18] Sims, J. ‘I Spy…Why Allies Watch Each Other’ Foreign Affairs Date accessed: 20th March 2017 https://www.foreignaffairs.com/articles/2013-11-06/i-spy

[19] Ibid.

Image credits:

Image 3: https://www.pritzkermilitary.org/explore/museum/past-exhibits/american-icons-great-war/side-side-britannia/

Image 2 and Feature: http://www.dailymail.co.uk/news/article-4325158/Trump-deflects-wiretap-questions-Merkel-news-conference.htm

Image 1: http://www.wikiwand.com/en/Global_surveillance_disclosures_(2013–present)

Understanding digital intelligence from a British perspective

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By Professor Sir David Omand GCB:

GCHQ building at Cheltenham, Gloucestershire. Photo: Ministry of Defence (creative commons)
GCHQ building at Cheltenham, Gloucestershire. Photo: Ministry of Defence (creative commons)

The Snowden revelations revealed much that was never intended to be public. But to understand them they must be seen in their context, of a dynamic interaction over the last few years between the demand for intelligence on the threats to society and the potential supply of relevant intelligence from digital sources. All intelligence communities, large and small, and including those hostile to our interests, have been facing this set of challenges and opportunities.

First, the challenge of meeting insistent demands for secret intelligence. For the UK this is, for example, to counter cyber security threats and provide actionable intelligence about the identities, associations, location, movements, financing and intentions of terrorists, especially after 9/11, as well as dictators, , insurgents, and cyber-, narco- and other criminal gangs. The threats such people represent are real and - in many respects - getting worse and spreading.

These demands for intelligence have coincided with a digital revolution in the way we communicate and store information. The internet is a transformative technology, but is only viable because our personal information can be harvested by the private sector, monetized and used for marketing. So the digital age is able to supply intelligence about people, for example by accessing digital communications, social media and digital databases of personal information. And for intelligence communities, new methods of supply call forth new demands from the police and security authorities that could not have been met before the digital age. And their insistent demands for intelligence to keep us safe call forth ever more ingenious ways of extracting intelligence from digital sources.

For the democracies (but not for others such as the Russians and Chinese), there is an essential third force in operation: applying the safeguards needed to ensure ethical behaviour in accordance with modern views of human rights, including respect for personal privacy. For the UK, the legal framework for GCHQ is given in:

  1. The Intelligence Services Act 1994 (Article 3 confers on GCHQ the functions of intelligence-gathering and information assurance with the sole purposes of national security, prevention and detection of serious crime and safeguarding the economic well-being of the UK from actions of persons overseas; Article 4 relates to obtaining and disclosing information).
  2. The Regulation of Investigative Powers Act 2000 (Article 1 outlines the terms of unlawful interception; Article 5 outlines the powers of the Secretary of State to issue a warrant to make interception legal); Article 8 describes domestic and external warrants; Articles 15 and 16 provide safeguards and controls on storage, handling and retention of data).
  3. The Human Rights Act 1998 including incorporating a ‘necessity and proportionality’ test to everything GCHQ does.

Like some elementary experiment in mechanics the resultant of these three forces – of demand, of supply and of legal constraints and public attitudes – will determine the future path of our intelligence communities.

Into that force-field blundered the idealistic Edward Snowden, the Wikileaks-supporting information campaigners Poitras and Greenwald, plus a posse of respectable journalists.

Some are tempted to see Snowden as a whistleblower. But he certainly did not meet the three essential conditions for a legitimate whistleblower as far as the UK is concerned. He did not expose UK wrongdoing, he did not exhaust his remedies before going public, and he did not act proportionately by stealing and leaking so many secrets (including 58,000 British intelligence top-secret documents) to make his main case against the US National Security Agency’s collection of metadata on the communications of US citizens.

Close examination has shown that there is no scandal over illegal interception, or other unlawful intelligence activity, by GCHQ. The three elements of the ‘triple lock’ on GCHQ’s activities - the Foreign Secretary’s authorisations, the oversight by the Parliamentary Intelligence and Security Committee (ISC), and the legal compliance by the independent UK Interception Commissioner and the independent Investigative Powers Tribunal - have each separately concluded everything GCHQ does is properly authorized, and legally properly justified including under Article 8 of the European Human Rights convention regarding personal privacy.

The documents from these different oversight bodies are well worth reading for the unparalleled detail they provide into how interception by the UK authorities is authorized, carried out and audited so as to be always within the law:

  1. The ISC Report.
  2. The Interception Commissioner’s Annual Report for 2013.
  3. The Investigative Powers Tribunal Judgement.
  4. The Foreign Secretary’s Statement.
  5. The Home Secretary has also described her role in authorizing legal interception of UK communications, including by GCHQ, here.

The inescapable conclusion from these documents is that GCHQ operates entirely within the law, including the 1998 Human Rights Act and therefore the European Charter of Human Rights in respect of freedom of expression and personal privacy.

What the documents do reveal is bulk access to the internet (authorized under Section 8(4) of RIPA 2000) in order to be able to reconstruct communications whose packets have been sent on different routes and to discover new communications of targets (who, to avoid surveillance, will adopt different identities). Targeted surveillance is what is conducted by the UK intelligence agencies. They will continue to need to try to collect intelligence on authorized targets for which the necessary legal authority exists, for example jihadist extremists from the UK who are fighting in Syria and Iraq and who may return to the UK as hardened and dangerous terrorists.

What Snowden and his supporters have failed to do therefore is to distinguish bulk access by computers to the internet – which the US and UK, France, Germany, Sweden and many other nations certainly do have – and so-called ‘mass surveillance’. Mass surveillance implies observers - human beings - who are monitoring the population or a large part of it. As the ISC, the UK Interception Commissioner and the IPT confirm, no such mass surveillance takes place by GCHQ; it would be unlawful if it did.

A similar misconception has arisen over the use of so-called metadata. The media have not explained that the UK uses a strict legal definition of ‘communications data’ (laid down in RIPA 2000) which covers the traditional ‘who called whom, for how long, when and where?’ of old-fashioned telephone billing, not the much looser concept of ‘meta-data’ obtained from internet and social media use. Thus accessing browsing history or other detailed digital metadata, whether from US or UK sources, is for British analysts equivalent to accessing ‘content’ which requires the relevant UK warrant signed by a Secretary of State. For domestic communications (both ends in the UK) that is the Home Secretary and for communications with one or both ends overseas by the Foreign Secretary.

Given the packet-switched nature of global internet communications it is possible that a domestic communication will be picked up in the course of overseas interception – but RIPA 2000 makes explicit provision to allow for this possibility, and provides safeguards (Sections 15 and 16) to ensure the same level of authorization is obtained.

So the issue is not the powerful tools themselves; they are necessary for public and national security. Nor is it the legality of how these tools are used today. The issue is how we the public can be sure that under any future government these tools cannot be misused.

We would be well advised not to have blind trust in the benevolence of any government. ‘Trust but verify’ should be the motto. With increasingly robust executive, Parliamentary and judicial oversight and publication of the results of their work we can and must ensure those tools will only be used in lawful ways that do not infringe beyond reasonable necessity our right to privacy for personal and family life or impose unconscionable moral hazard.

Professor Sir David Omand GCB is a visiting Professor in the Department of War Studies at King’s College London. He was the first UK Security and Intelligence Coordinator, responsible to the Prime Minister for the professional health of the intelligence community, national counter-terrorism strategy and “homeland security”. For seven years he served on the Joint Intelligence Committee. He was Permanent Secretary of the Home Office from 1997 to 2000, and before that Director of GCHQ. During the Falklands conflict he was Principal Private Secretary to the Defence Secretary, and he served for three years in NATO Brussels as the UK Defence Counsellor.

 

The problem with curtains

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By Andreas Haggman:

A. Van Dam cartoon modified by N. Gourof
Arend van Dam cartoon, respectfully modified by the Webmaster, Strife

 

Edward Snowden’s revelations have prompted fierce debates in both the intelligence world and the cyber domain more generally. Opinions and analyses on the impact of the revelations can be found at every level of publication from academic journals to online discussion forums. The outcome of the debates with regards to the long-term operations of intelligence agencies is still unclear. However, what has already manifested itself is the public relations nightmare resulting from the much-maligned electronic snooping, conducted in particular by United States’ NSA and UK’s GCHQ signals intelligence agencies. Chiefly thanks to The Guardian’s publications, there have been outcries from the general public of foul play and invasions of privacy on the part of intelligence agencies.

In defence, the UK government’s stance was to assert that those who have nothing to hide have nothing to fear. GCHQ’s digital hoover may sweep up an unprecedented amount of internet traffic, but if you simply form part of the proverbial dust you will be ejected unmolested at the other end. If, on the other hand, you have more sinister objects strewn all over your digital floor, these will be caught in the filter and you will be dealt with accordingly.

Many commentators have noted that this explanation is not sufficient to justify large-scale privacy invasions. In a survey, Daniel Solove collated a number of responses to this issue, with one objection being particularly resonant. The complaint was the blunt question ‘So do you have curtains?’ The reasoning behind this is that if we follow the UK government’s logic, law-abiding citizens have no need to obscure from view what they do in their own homes. Because they don’t fear any reprisals for wrongdoing (since they do no wrong), they have no need to hide their actions.

At first glance the argument is compelling, but the analogy fails because of the inherent problem that it does not distinguish between privacy and secrecy. ‘Privacy,’ Eric Hughes stated in A Cypherpunk’s Manifesto, ‘is the power to selectively reveal oneself to the world.’ The key word here is ‘selectively’. Something that is hidden from everyone is a secret; something that is hidden from people you choose is private. Curtains, by their nature, entail privacy – you can choose when they are open and closed – and no one thinks anything of it when they are closed. However, if they were permanently drawn closed they would be tools of secrecy and, indeed, arouse some suspicion in the neighbourhood. For our purposes, it is this last point which is problematic.

The electronic equivalent of curtains is encryption. With so-called public key encryption protocols, two people are able to communicate without any outsider being able to read the content of the messages being passed. This can be used with discretion, so sending an unencrypted email equates to having curtains open, and sending an encrypted email entails having them closed. The problem here is that whereas curtains are a societally accepted privacy tool, encryption maintains a dubious status outside cyber security-aware circles. Because the default approach for the vast majority of people is to not actively encrypt their data and communications, those who do encrypt can be viewed with suspicion; especially those who encrypt consistently – that is, have their curtains closed all the time.

The issue, then, is that in encryption we have tools endowing us with the ability to create privacy in the digital domain, yet our attitude towards these tools means they are thought of as tools for secrecy. This is in contrast to the analogous curtains, which are accepted as tools of privacy.

All of this seems to be a great contradiction. Government organisations and corporations use encryption to protect the data they hold about us and for this we are thankful; indeed this is something we have come to demand. Similarly, many email providers encrypt the messages we send despite us not actively choosing to do so, which we nevertheless welcome. So those institutions of which we increasingly request transparency, we simultaneously embrace for their use of (perceived) secrecy tools.

This contradictory stance has stringent implications for security. If encryption is embraced at an organisational level, governments and corporations are able to maintain integrity of data, therefore keeping it secure. When this data concerns, for example, national infrastructure or defence details, security of data is directly connected to security of the state. On a personal level, however, if encrypting one’s own data is seen as illegitimate and not widely practiced, the same logic implies negative connotations for personal security.

In liberal democratic states this presents a problem. Such states espouse individual values and hold the safety of people in high regard. If personal security is compromised, upholding the values and safety falls to those entities whose security remains intact – that of governments and corporations. However, it is in the public interest to maintain some measure of control of their own security, for completely relying on others could be dangerous, lest the interests of the public and the interests of other entities (governments and corporations) unexpectedly diverge.

This line of reasoning is suspiciously Palmerstonian and, I suspect, would sit well with anti-gun control activists (particularly in the US). It could also be argued that at this point the analogy is overstepping its limits: encryption concerns only data on computers and extrapolating effects in the digital world to the physical world is stretching it too far. But this argument looks at the problem too abstractly. The data concerned often has a direct effect on the physical world, so encryption of this is necessary to maintain personal security.

The point here is that we need curtains. We need them not for any sinister purpose, but to maintain control over our privacy and personal security. In the digital world encryption offers these curtains. Unfortunately, until the taboo of encryption is overcome, personal security will remain in the hands of other entities. If we want to to seize control it is up to us, collectively, to embrace the protection offered by encryption.

 

Andreas Haggman is a MA student in Intelligence and International Security at King’s College London. His academic focus is on cyber security, particularly the development of weaponised code and organisational responses to cyber security issues.