Cyber espionage is the activity of spying on an individual or a group via the accessing of their digitally stored and developed information or details. Over recent years, the term has become synonymous with the activities of both individuals and also of governments. It can be seen to refer both to the ways in which different states pursue their interests on the world stage, but also to the process by which they conduct espionage techniques against their own citizens. This paper will consider this form of espionage as it can be seen to refer directly to the activities of the US over the last ten years. In particular, it will pay specific attention to operations as defined in the MSR model and how current debates about legality focus directly on conceptions of individual rights and privacy associated with surveillance and espionage. It will conclude by stating that such espionage, in its operations, necessarily must mediate between conceptions of privacy and the necessity of surveillance.
According to the MSR model, much of the cyber espionage can be seen to focus against what is termed ‘operations.’ This is defined as ‘a security countermeasure’ that ‘goes beyond policy and practices required for use in secure systems. Such operations should be seen to ‘encompass the procedures employed by system users, the configurations implemented by system administrators, as well as conventions invoked by soft during specified system operations’ (Maconachy et al, 2001, p. 308). It is around much of these ‘operation’ systems that contemporary cyber espionage can be seen to focus as it attempts to access information held within specific servers, as well as generating algorithms that make the prediction of behaviour and events possible.
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Cyber espionage carried out by the USA should be seen as split between that conducted that on an international level and that conducted by the State against those who are identified as potential domestic threats. Prior to the revelation of the extent of surveillance conducted by the CIA, the primary focus for debates focused on cyber espionage focused on the nature of adjusting operations of surveillance to new cyber threats and balancing this with privacy. This tension was summed up by Taiplae (2007) in the statement that ‘While we cannot simply abandon cherished values-such as liberty and privacy-because maintaing them is difficult, neither can we simply resists change because it is uncomfortable’ (p. 78). Therefore, the most frequent point of departure for the discussions of cyber espionage that is conducted by the US is its apparent legality or illegality. Indeed, debates around the legal status of such espionage can be seen to dominate current discussions regarding how, and why, surveillance and espionage techniques are carried out. It was noted in 2008 that the most important aspects of current debates concerning cyber espionage inevitably focused round conceptions of surveillance and around the surveillance techniques of previous presidents, each of which as been seen to be responding to specific circumstances and difficulties faced by their administration (Katyal, 2008 p. 1025). Such activities have included wire-tapping and other features that were specifically designed in order to gather information from both domestic and international targets. As such, current arguments concerning this form of espionage can be seen to have a long history.
Current debates concerning this focus around the issues of personal liberty that emerge form apparent breaches of privacy resulting from excessive espionage. This can be seen to actively compromise the very life of the individual citizen, as it prevents them from being treated as a free and thinking individual; something that, according to almost all thinking regarding American ideology is a vital part of contemporary capitalism. As such, the operations involved in cyber espionage should be considered as fundamentally contradictory. While they may serve to protect overall freedom, they are nonetheless actively involved in the suppression of privacy and also of the right to make decisions outside of state decisions. According to Milton Friedman, it is precisely this ability that can be considered to be the most important aspect of the life of citizen in America (Friedman, 2002, p. 65). While this difference may seem ideological, it is also important to note the ways in which the operation of state surveillance, actively lead to the suppression of freedom, something emerges clearly in ideas of racial profiling that, as one commentator notes, can be taken to stem directly from surveillance and from the process of using race, alongside personal details as ‘ground for increased suspicion’ when considering information gained from such surveillance (Heaton, 2010, p. 29).
One commentator argues that excessive surveillance actually can go that far that actively ‘will short-circuit the individual’s decision making process’ (Schwartz, 2009, p. 412). It is possible to see therefore that, from the most extreme perspective, excessive cyber espionage when it is conducted against a government’s citizens actually prevent such citizens from being treated as thinking beings. At the same time, demands placed on national security demand espionage techniques. Understanding how these two mediate each other is the primary task of those responsible for such espionage.
In conclusion, this paper has considered different legal debates concerning cyber espionage most notably espionage carried out by the USA. It has argued that these debates in the way in which cyber espionage enters contemporary thinking through a consideration of this via an understanding of protecting conception of personal privacy, alongside the necessity of protection from actual threats. In this case it should be considered that cyber espionage places two different demands on those who carry it out and that the mediation of these concerns should be considered to be the primary difficulty faced by those responsible for implementing and considering such espionage in the 21st century.
- Friedman, Milton. (2002). Capitalism and Freedom: Fortieth Anniversary Edition. Chicago: University of Chicago Press
- Heaton, Paul. (2010). “Understanding the Effects of Antiprofiling Policies.” Journal of Law and Economics. 53 (1) : 29-64.
- Maconachy, W. Victor. (2001). “A Model for Information Assurance: An Integrated Approach.” Workshop on Information Assurance and Security.” US Military Academy.
- Katyal, Neal. (2008). “The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent.” Stanford Law Review. 60 (4) : 1023-1077.
- Schwartz, Paul M. (2009). “Warrantless Wiretapping, FISA Reform and the Lessons of Public Liberty: A Comment on Holme’s Jorde Lecture.” California Law Review.97 (2) : 407-432.
