Guest Post: What Are The Boundaries Of ‘Legitimate’ Espionage?

Are the norms of appropriate espionage changing? Glenn Greenwald’s new book, based on revelations from Edward Snowden, critically highlights an episode from the 2010 UN Security Council vote on sanctions against Iran.  At the behest of U.N. ambassador Susan Rice, the NSA targeted the delegations of at least four countries for surveillance and analysis in order to provide the U.S. with better intelligence on how those states might vote.  Although the overall impact remains unclear, this collection could have given the U.S. the ability to make targeted “side payments” to the countries in question, to frame its rhetoric differently, or to have a better sense of the progress of the campaign.

Greenwald’s use of this example has evoked some debate among diplomatic and intelligence analysts, as it strays far from the central themes of the Snowden Project, which involve mass data collection and global public surveillance. Along with the recent indictment of five PLA officers on charges of cyber espionage, it drags the focus onto the question of how nations spy on one another, and where the appropriate boundaries for “legitimate” espionage lie.

The UNSC incident was reminiscent of one of the most famous cryptography successes of the 20^th century, the U.S. intercept of Japanese information at the Washington Naval Conference in 1921. Japan, the United States, and the United Kingdom disagreed about where the ratios limiting naval construction should fall, with the Anglosphere powers arguing that the great distances of the Pacific meant that Japan could manage its defense with fewer ships. While the United States argued for a 10:6 ratio in capital ship construction, Japan held out for a 10:7 ratio.

Led by the remarkably colorful Herbert Yardley, U.S. cryptographers broke Japanese codes and provided U.S. negotiators with crucial information about how far, precisely, the Japanese were willing to push their opposition to the proposed warship ratios. In the end, the Japanese accepted the U.S. proposal, allowing the Treaty (and eventually, its successors) to move forward and substantially reduce the number of warships in global navies. Not incidentally, it helped relieve the enormous pressure that the naval race was putting on the British and Japanese economies. Indeed, the biggest issue for Japan may not have been the codebreaking itself, but rather the later public announcement of the intercept, which humiliated the military and the diplomatic corps. Embittered by the lack of government support and impoverished by the stock market crash of 1929, Yardley detailed these achievements in 1931’s The American Black Chamber. This resulted in worldwide attention to the codebreaking success, and a lifetime blacklist for Yardley.

But isn’t the UNSC different? In some ways, yes; the UNSC is a long-term, established institution that’s key to international governance. But then the point of the Washington Naval Treaty was to conclude a viable, sustainable global peace. Every participant wanted, and in some cases desperately needed, to achieve an agreement on the limitation of naval weaponry. The only question that cryptography helped resolve was “who shall this viable, sustainable global peace favor the most?” Of course, the peace did not remain viable or sustainable, but it’s hard to argue that U.S. cryptography was decisive in pushing Japan to renounce the system of naval arms limitation.

The indictment of the five accused Chinese hackers raises similar questions. The United States and other countries have engaged in cryptography for quite some time to gain advantages in trade negotiations. The theft of intellectual property doesn’t seem such a large departure from this practice, especially given that the theft of foreign military and economic secrets was celebrated, rather than frowned upon, a century ago. This doesn’t mean that the Department of Justice was wrong to indict the hackers, but rather that we should perhaps all approach questions of economic and diplomatic espionage with a trifle less indignation.