Issue 3: “Five-eyed Snoopy” – State on State intelligence gathering and confidential trade secrets.

In this third issue on privacy we are entering into the world of spying – which is quite distinct to the issues on privacy discussed in earlier posts.

Given that the EU has no “Homeland Security” or MI5/MI6 types milling outside the Berlaymont building what is the EU perspective on spying?  The EU, after all, is not a State it has no traditional executive branch and no military or intelligence services on which to lean.

The reason the EU takes an interest in spying is because it is an economic power-house. According to 2012 figures, the GDP of the European Union was $ 15,970,000,000,000 compared to the US’s $ 15,940,000,000,000, making the EU the wealthiest region in the world – ahead of the US and China.

The US, China, South America, Israel etc. may not give a flying fig what the EU has to say on the Middle-East, what it’s policies on human rights issues in China are or even whether the EU approves of NATO’s involvement in Afghanistan or not.

What they do, however, take a great interest in is the EU’s stand on trade, commerce and anti-competitive practices. Snowden’s leaks reveal that the US has made considerable effort to bug the EU missions in the US and in the EU.

The EU has expressed out-rage. No surprise there. It’s part of the ritualistic speak of the great-game of spying. The EU is probably aware that the Chinese are up to similar shenanigans, as are the Israeli’s and any other State interested in accessing the EU’s confidential positions on matters that affect their economic interests.

The proposed data protection regulations are a pertinent – though by no means unique – example of how and why a third-party would dearly love to spy on the EU.

The EU’s data reform package, if adopted as they now stand, will quite literally transform the current on-line business model in the European Union and potentially set a global precedent. The US government appear more than happy to support Palo Alto in their attempts to frustrate the proposals and have sent US diplomats to warn of a “trade war” if the EU goes ahead and approves the reform package.

It would be of great interest to both Palo Alto and the US government to know exactly what the thinking of EU officials are as the proposal weaves and meanders it’s way through the legislative process – from Commission to Council to European Parliament and back again. Planting a bug here – accessing communications through servers there, decrypting messages – it’s all part of the great game and we now know that the NSA has the potential, capabilities and willingness to do just that, with ease.


A second reason why the EU is interested in taking a position on State spying is industrial espionage.

In July 2001 the “Temporary Committee on the ECHELON Interception System” of the European Parliament presented its findings.

The report confirmed what, in effect, was an open secret – namely the existence of a programme that had its origins in the cold war but which in a post cold-war climate was using its capabilities to access other interesting tit-bits of information, “…there can now be no doubt that the purpose of the system is to intercept, at the very least, private and commercial communications, and not military communications…”

The report was prompted in no small-part by the French who were out-raged that the US had used Echelon technology to listen in on sensitive commercial negotiations between Airbus and the Saudi Arabian government.

In the case of the Airbus deal the French had been acting in bad faith in that they were seeking to bribe Saudi officials – but the fact that the US made use of this information to their favour alarmed and rankled the EU.

Reading the Echelon report twelve years on from publication is an exercise in appreciating just how swiftly technology moves on. The Echelon report, published just a few months before 9/11, is more concerned about how to prevent bugs in a fax machine and telephone lines.

The report notes, “… the majority of communications cannot be intercepted by earth stations, but only by tapping cables and intercepting radio signals, something which – as the investigations carried out in connection with the report have shown – is possible only to a limited extent.”

In July 2001 mobile phones were still in their infancy, there was no Skype nor cloud computing, social media, smart phones, location identification apps, on-line shopping etc.

Neither the US reaction to the attack on the twin towers nor the NSA’s  PRISM programme could have been conceptualised by the rapporteur when he prepared the Echelon report in 2001 – simply because the former was yet to happen and the latter didn’t exist.

Much has changed since the report was written but the concerns of non-English speaking Member States remains the same namely the idea that a shady anglophile grouping is using their technology to steal trade secrets, conduct industrial espionage and gain economic advantage in an anti-competitive manner.

Spying is the “Great Game” where all bets are off, no rules apply and only the best win. Nowadays, typically,  the best need not necessarily be the bravest but they do need to be the brainiest. The traditional role of the intelligence services has been to gather information to help defend the State from attack (conventional or non-convention).  More recently the intelligence services are tasked to secure intelligence relating to the State’s economic interests.

Of course State’s spy on each other – it would be utter incompetence were the executive branch of the government not to. In response to Harry Stimpson’s assertion that “Gentlemen do not spy on other Gentlemen,” EU Perspectives replies:  when it comes national security then rogues, ladies, maids and gentlemen will happily read each others mail.

The key question is where to draw the line between gathering military intelligence and stealing industrial secrets? The later is the question that pre-occupies the EU.

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