Knowledge Tree
espionage
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Sources
Rethinking Espionage in the Modern Era cjil.uchicago.edu 86 facts
referenceLt. Col. Geoffrey B. Demarest provides a detailed account of the history of the development of international legal instruments outlining espionage during times of armed conflict in his 1996 article 'Espionage in International Law'.
claimEspionage lacks a global regulatory framework under international law, leaving its permissibility largely unsettled.
referenceThe article 'Rethinking Espionage in the Modern Era' is structured as follows: Section II defines espionage; Section III outlines the ambiguity of espionage in international law; Section IV explains the difficulties of regulating espionage; Section V discusses catalysts and unique problems of cyber espionage; and Section VI proposes an exemplary norm for states to limit the consequences of legal uncertainties.
claimCustomary international law will likely continue to accept espionage as a broadly allowable activity, though intelligence agency operations may eventually need to comport with oversights reflecting widely held social values.
claimThe absence of comments from a state regarding a captured spy may stem from a belief that collateral negotiations over the prisoner would be fruitless.
claimEspionage conducted between vessels in international waters or in the Antarctic serves as a likely analogous situation for espionage in the global commons, as absolute lack of political reach is unlikely.
claimStates have a strong incentive to increase their own espionage activities while publicly decrying the impermissibility of such actions by others, particularly because subversive information is confidential.
claimArguing for the legality of espionage is often considered pointless because the targeted nation likely has domestic laws prohibiting the conduct, and the spy is operating within that jurisdiction.
claimThe potential benefit of espionage has exponentially amplified due to the sheer volume of information that exists and can be collected.
claimThe author of 'Rethinking Espionage in the Modern Era' defines espionage as the unauthorized intentional collection of information by states.
claimPrior to the cyber era, intelligence agencies were required to have sufficient suspicion of a target ex ante before engaging in espionage because wide-scale information collection was costly or cumbersome.
accountEdward Snowden's 2013 disclosure of the National Security Agency's surveillance program prompted Brazil, the Bahamas, and Indonesia to comment on espionage as a breach of sovereignty or violation of international law.
referenceJulius Stone authored 'Legal Problems of Espionage in Conditions of Modern Conflict,' published in 'Essays On Espionage and International Law' in 1962.
claimThe internet and network infrastructure allow intelligence operatives to conduct espionage from their home state, which provides them with relative safety compared to operating on foreign soil.
claimLegislators often exhibit a reluctance to discuss espionage because of a common perception that espionage is an immoral activity, which perpetuates the secret nature of intelligence operations.
claimStates, humanitarian organizations, and commercial entities have recently become more hostile towards espionage activities.
referenceBlack's Law Dictionary (10th ed., 2014) defines espionage as the activity of using spies to collect information about what another government or company is doing or plans to do.
claimStates typically maintain a 'doublethink' mentality regarding espionage, where they acknowledge their own intelligence agencies as legitimate for national security while simultaneously criminalizing foreign espionage and domestic support for it.
perspectiveThe author of the source text argues that espionage should be defined broadly rather than narrowly to avoid overgeneralizing the problem to individuals collecting information online via legal means, such as basic research or observing public actions.
claimAshley S. Deeks observed in 2016 that a competing narrative has developed where some actors reject the traditional view that international law fails to regulate or permits espionage, arguing instead that international law prohibits espionage and other intrusive intelligence activities.
claimSome commentators argue that the lack of state acknowledgment regarding captured spies implies an understanding that espionage is prohibited by international law.
claimBecause multiple countries believe they possess or could possess an advantage in espionage capabilities, no state has an incentive to stop developing these capabilities, leading to a cycle of continued development.
claim18 U.S.C. § 793 (2016) defines espionage-related information as 'information respecting the national defense' rather than relying on a secrecy determination.
claimEspionage is claimed to serve as a form of arms control or conflict prevention by revealing the capabilities of other states, thereby promoting stability and peace.
referenceA. John Radsan describes the duality inherent in espionage in his article 'The Unresolved Equation of Espionage and International Law', published in the Michigan Journal of International Law in 2007.
claimThe 'absence of impermissibility' argument posits that espionage is permissible because the conduct is not explicitly condemned under customary international law.
claimThere has not been a call for a general shutdown of intelligence agencies despite increased hostility toward espionage.
claimThe Central Intelligence Agency (CIA) highlights the misperception of the terms 'espionage' and 'spy' on its website for children, noting that these terms often conjure images from the works of Ian Fleming and Tom Clancy.
claimStates rarely acknowledge espionage activities when a spy is captured and the behavior is publicly denounced.
claimEspionage is traditionally regarded as acceptable behavior, whereas an attack by a state triggers jus ad bellum and jus in bello analysis.
claimCyber espionage is defined as the use of cyber technology to achieve the goals of traditional espionage.
claimStates lack an incentive to be transparent about espionage activities that go undetected, and they maintain confidentiality regarding their actual espionage capabilities to preserve the value of surprise in national security.
claimThe gathering of open source information is distinct from espionage and is not subject to legal concerns because the state is presumptively inviting others to view the information.
perspectiveAn unnamed commentator argues that if self-defense is an inherent right of a state, then the right to conduct espionage is a corollary derivative of that right.
claimInternational law clearly prohibits the use of torture and cruel, inhuman, or degrading treatment to extract information during espionage activities.
claimMI5 defines espionage as the process of obtaining information that is not normally publicly available.
claimThe public declaration of the legality or illegality of espionage activities may lead to a decrease in activities that are less justifiable for national security, such as the surveillance of private individuals or commercial organizations.
perspectiveProfessor Julius Stone argues that "reciprocally tolerated espionage" is permissible because it ensures mutual inspection and maintains world stability.
perspectiveInternational law must evolve to address the capabilities of modern technology, as the previous state of 'artful ambiguity' is no longer sustainable given the shift from small-scale, targeted espionage to constant, wide-reaching surveillance.
claimBrown argues that the distinction between cyber attacks and espionage is more difficult to make than the traditional distinction between soldiers and spies, because soldiers and spies are easier to distinguish by their uniforms or weapons.
claimIndividuals and organizations with a clear legal allowance to gather information, such as news reporters and scholars, are excluded from the definition of state activity in espionage.
claimGary Brown argued in the Journal of National Security Law & Policy (2016) that states freely engage in espionage and generally accept it from other states, with consequences limited to domestic punishment of spies or the expulsion of diplomats.
claimTwo primary concerns regarding the legalization of espionage based on its functional value are the existence of alternative institutions for ensuring compliance, such as third-party monitors, and the potential for states to use espionage for bad behavior like extortion and coercion.
claimIn Professor Julius Stone's framework, the "red-light function" of espionage warns states of surprise attacks, while the "green-light function" informs states of opportunities to strike.
claimThe SOVA Center defines information relevant to espionage as 'state secrets'.
perspectiveThe traditional functional and realist rationales that support the allowance of espionage do not apply when espionage is conducted through private entities, as it fosters distrust and conflict rather than stability.
referenceThe SOVA Center defines espionage under Russian law as the transmission, collection, storage, or abduction of information constituting a state secret for transfer to a foreign state or organization, or the collection of other information for use threatening the security of the Russian Federation by a foreign national or stateless person, punishable by ten to twenty years imprisonment.
claimHistorically, intelligence regulation was lacking because espionage did not affect the average citizen, but the development of cybercapabilities has changed this dynamic.
claimEspionage is a segment of the intelligence cycle that falls within the second step, which is collection.
claimThe author of 'Rethinking Espionage in the Modern Era' argues that the existence of private groups conducting espionage is sustained by the deniability of their state sponsors regarding any connection or affiliation.
claimEspionage is defined as the collection of information that is not made publicly available.
claimVictim states of espionage often seek to use international law as a mechanism to impose declaratory judgments of wrongdoing, which necessitates arguing for a prohibition of espionage.
claimThe definition of espionage as the unauthorized intentional collection of information by states includes four key components: (1) it refers to the collection of information; (2) the collection is disallowed by the targeted state; (3) it uses the term 'information' rather than 'intelligence'; and (4) it involves only activities affiliated with states.
perspectiveThe author suggests that states should address the unsustainability of traditional espionage ambiguity by establishing norms for specific activities rather than pursuing formal, wide-reaching regulations.
claimProfessor Julius Stone recognized that the inability to distinguish between "red-light" and "green-light" espionage functions is problematic because states may reject all espionage activities as illegitimate.
perspectiveThe tipping point for a reduction in intelligence activities is perched extremely high due to strategic cost-benefit considerations, even when there is pressure to cut back on espionage.
claimEspionage occupies an ambiguous position within international law.
claimEspionage is typically criminalized under the domestic laws of the victim state, making it a violation of the Vienna Convention on Diplomatic Relations when diplomats engage in it.
accountEspionage is historically referred to as the 'world's second oldest profession,' with references appearing in the Bible, ancient Greece, and ancient China.
claimThe monitoring rationale for self-defense is becoming less compelling for justifying espionage because it is increasingly difficult to distinguish between defensive and offensive measures, particularly given recent accusations of countries weaponizing information and engaging in information wars.
claimThe S.S. Lotus case (France v. Turkey), decided by the Permanent Court of International Justice in 1927, is notable for supporting two divergent views on espionage.
claimThe use of physical hardware, such as malware on a portable hard drive connected to an isolated network, constitutes a clear violation of territoriality and sovereignty, making it akin to traditional forms of espionage.
perspectiveDisallowing privately conducted espionage would reinsert a reputational cost to espionage by removing the ability of states to use easily dismissible scapegoats to conduct proxy information gathering.
quoteBarack Obama stated that espionage is being 'turbocharged' by the Internet.
claimRemoving the espionage categorization allows states to increase the level of their retaliation during countermeasure analysis because the proportionality analysis changes.
claimProfessor Julius Stone described espionage as having a "red-light function" and a "green-light function."
claimExisting international law lacks a formal treaty regarding espionage, leading to various arguments about whether the practice is permissible or impermissible.
claimOther scholars have argued that the use of espionage is allowable as both a necessary part of statecraft and a means of peremptory self-defense under the United Nations.
claimThe speed of access and exfiltration in cyberspace creates a wider range of problems than traditional espionage methods.
quoteQuincy Wright stated in 'Essays On Espionage and International Law' (1962) that the legitimacy of espionage during wartime stems from the absence of a general obligation for belligerents to respect enemy territory or government, and the lack of specific conventions prohibiting it.
claimThe legal validity of espionage may be grounded in the recognition that custom serves as an authoritative source of international law due to its historical acceptance.
claimThe definition of espionage is broadly characterized as the collection of information with no restriction on the means used to obtain it.
accountFormal legal instruments throughout history have provided direct attention to the treatment of espionage during wartime, generally accepting it as a reality of war.
claimIntelligence organizations and the practice of espionage are not the monopoly of the great world powers; espionage is practiced by states of all sizes.
claimActs committed by private individuals and private organizations generally fall under criminal law and do not implicate the same international law issues as state-sponsored espionage.
claimThe inherent secrecy of espionage prevents effective monitoring by other states, making it difficult to ensure compliance with any potential multilateral regulation.
perspectiveThe author of 'Rethinking Espionage in the Modern Era' argues that the current ambiguity regarding espionage is unsustainable because espionage is becoming indistinguishable from low-level warfare, more efficient, more visible, and increasingly involved in information wars.
quoteDemarest stated: '[A]ny attempt at a precise definition [of espionage] is difficult.'
claimTraditionally, state practice has maintained a contradictory stance on espionage, condemning foreign espionage while simultaneously viewing national intelligence operations as legitimate.
claimStates are unable to reach a multilateral treaty or international regulation regarding peacetime espionage because national security and state survival are prioritized over constraining espionage operations.
referenceUnder 18 U.S.C. § 793 (2016), espionage is defined as obtaining information regarding the national defense with the intent or reason to believe that the information will be used to the injury of the United States or to the advantage of any foreign nation.
claimThe mutual check-and-balance provided by espionage has become increasingly important in a world with weapons of mass destruction.
referenceMI5 defines espionage as the process of obtaining information that is not normally publicly available, using human sources (agents) or technical means such as hacking into computer systems.
claimThe author of the article 'Rethinking Espionage in the Modern Era' defines espionage as the collection of information, while defining covert action as acting on information in pursuit of national interests.
perspectiveThe author of 'Rethinking Espionage in the Modern Era' argues that states need to establish clearer guidelines for permissible espionage activity by carving out narrow activities to overcome strategic state considerations.
claimEspionage functions as a monitoring mechanism after negotiations to ensure that parties maintain ongoing compliance with agreements.
United States Foreign Intelligence Relationships everycrsreport.com May 15, 2019 2 facts
claimRisks associated with United States intelligence relations with foreign counterparts include compromise due to poor security, espionage, geopolitical turmoil, manipulation to influence policy, incomplete vetting of foreign sources, over-reliance on a foreign partner’s intelligence capabilities, and concern over a partner’s potentially illegal or unethical tradecraft.
claimRisks associated with United States intelligence relations with foreign counterparts include compromise due to poor security, espionage, geopolitical turmoil, manipulation to influence policy, incomplete vetting of foreign sources, over-reliance on a foreign partner's intelligence capabilities, and concern over a partner's potentially illegal or unethical tradecraft.
Cybersecurity Trends and Predictions 2025 From Industry Insiders itprotoday.com 1 fact
claimDavid Wiseman, VP of secure communications at BlackBerry, predicts that telecom and internet providers globally will assess vulnerable entry points and legacy systems to boost resilience against espionage efforts.
State of the Software Supply Chain Report | 10 Year Look - Sonatype sonatype.com 1 fact
claimThe SolarWinds attack demonstrated the strategic value of supply chain compromises for espionage and cyber warfare by exploiting vulnerabilities deep within the development pipeline to compromise trusted software.
History of the Central Intelligence Agency - Wikipedia en.wikipedia.org 1 fact
claimThe White House announced that the Central Intelligence Agency will no longer utilize vaccination schemes for espionage purposes.
The Evolution of the U.S. Intelligence Community-An Historical ... govinfo.gov 1 fact
claimThe Federal Bureau of Investigation (FBI) expanded its mission before World War II to include the investigation of espionage, counterespionage, sabotage, and violations of neutrality laws.