Justification of espionage
States have to ensure the continuity of their own existence, or in other words to ensure their sovereignty.
For this, they must ensure their resources and fight threats. Their resources come from the taxation of the activity taking place on their territories. The threats come from players capable of changing the balance of their resource flows, whether concurrent states, multinational companies, private individuals, etc.
In order to act in their best interest, states need to supervise these actors and their influence on resource flows, which is called espionage or intelligence.
Other players do the same, like companies facing their competitors. It is vital for them to learn about their environment. Intelligence gathering is widespread at all levels.
Challenged by their competitors, it is also vital for companies to protect their own information.
Secrecy is essential to business, and privacy. The right to privacy is the foundation of business secrecy: if an individual can be spied on, then all the companies he is related to can be as well.
We can call this passive counter-intelligence.
It is secured by legal and technical measures1 organized by states.
Consequences for the state
Put simply, lowering the capacity of secrecy of legal and natural persons, taxation base of states, jeopardizes the states’ resources and thus their sovereignty.
Destruction of counter-intelligence capabilities
To help their supervision programs, states have weakened passive counter-intelligence measures, such as encryption, authentication, and all technologies called IT security.
By lowering the secrecy capacity of legal and natural persons, states have endangered their own sovereignty.
We are currently witnessing a race to espionage, aimed to create a balance similar to that achieved in nuclear weapons.
Capacities to attack and defend are generally opposed. In some cases, such as nuclear weapons, it is believed that the attack is beyond any defense. The only solution is a balance of the attacks, the “Mutually Assured Destruction” in the nuclear case. But it is based on the possibility of identifying the attackers and the fact that it is basically a military attack.
When a business contract is conducted thanks to information obtained through espionage, there is no recourse: it is impossible to provide evidence to sue, even if some have been obtained via one’s own espionage.
The actors benefiting the most from this behavior are those having most easily access to the benefits of espionage: conglomerates supported by the best spying states.
The logical response of other states is to implement protectionism, to remove any capacity for action to beneficiaries of espionage, just what President Obama now accuses European leaders of.
Difficulty of reform due to the sharing of information between states
To get around their local laws forbidding them to spy on their own citizens, states are organizing a cross and shared intelligence between allies. In this way, a state may be warned by his allies of threats on its own territory.
Though in practice the letter of the law is well respected, the necessary business secrecy is destroyed.
Only a coordinated legislative action by the states part of such an alliance could influence such a behavior. This is somewhat unlikely.
Net neutrality and sovereignty
The current issue called “net neutrality” aims to prevent vertical integrations within the internet network industries or, in other words, to prevent a concentration battle which would be destructive for the security of states and individual and legal entities.
Indeed, at the current stage of development of social networks and telecommunications conglomerates, it is strategic for some of them to make a vertical integration to simultaneously control the physical networks, the marketing of bandwidth and the main services using that bandwidth.
For others, it becomes strategic to secure their position vis-a-vis the formers.
A serie of mergers and acquisitions is thus predictable. However, as the number of players is reduced at each stage, the final number of players will be too limited to allow effective competition.
More troublesome, among stakeholders, it is the service providers who have the highest market capitalization. So it is upon them that the final integrated conglomerates will be built; therefore those will all be US companies.
That all states’, legal and individual entities’ communication flows go through a few players only makes of these strategic intelligence targets, whose protection is out of range for non-US players.
Net neutrality is part of states sovereignty issues.
In such a situation, it becomes firstly critical to implement measures against espionage, secondly to minimize the espionage measures as long as they are counter-productive, that is benefiting ultimately others more than us.
New counter-productive espionage measures
The french military law extended to police and intelligence services access to the data of the french air passengers. The sharing of these data by intelligence services with foreign intelligence services is not regulated by law. Yet it is essential to minimize the data made available intelligence, as they constitute a security breach. The government with this law attempts to maintain integrity at the expense of confidentiality, necessary to business.
The systematic screening of passengers within the European airspace, proposed by 12 European Ministers of the Interior and the US Minister, in the aftermath of the killings of Charlie Hebdo, is also a gaping business security breach.
Other countries, like now Germany, are increasing their espionage budget.
China and the United Kingdom now want to have access to the source code of softwares of foreign companies they work with. No company will any longer be able to oppose them business secrecy or trade secrets; all will have to transmit confidential intangible assets over their activity, a main part of the company’s value.
New measures destroying our counter-intelligence capabilities
The transatlantic partnership on trade and investment TTIP allows private organizations to sue States which legislation undermines the expected profits. This kind of mechanism was used to prevent the adoption of laws against smoking; it is equally adaptable to prevent the introduction of significant measures against espionage.
France maintains contracts with companies being strategic espionage targets, which are impossible to protect. Recently, France has signed a partnership agreement with US company Cisco which own state has organized its espionage and its security lowering.
The french current government (executive power) asks the Parliament (legislative power) to establish exceptions allowing to override the judiciary power. The Intelligence Bill, currently before the French Parliament, will allow the executive to break the security on behalf of security, exactly what organized the NSA in the United States.
It is to a journalist, the fourth estate, that Edward Snowden, a NSA external consultant, provided the information he recovered on the massive surveillance programs of the US executive and their lack of control. Internet and social networks have allowed citizens of the world to get access to these information.
When measures exempting of control the executive power are put in place, only the fourth estate is able to intervene. When these measures are abused, scandals occur, endangering the stability of the government, and therefore the sovereignty of the state.