Author: Asaf Lubin (JSD candidate, Yale Law School and Robert L. Bernstein International Human Rights Fellow with Privacy International)

In Part I of this blog I examined four of the most troubling elements of the new Investigatory Powers Act and their compatibility with IHRL. It is, however, important to note that the IPA is only one of several electronic communications surveillance laws that have been adopted in recent years, or are currently undergoing legislative processes, across Europe (one can particularly note adopted or pending legislation in Germany, France, Poland, Italy, Austria, Romania, Belgium, and Spain, to name a few examples). In this blog post, I suggest we look at the broader implications of the IPA on the landscape of regulation of espionage in international law.

Tinker, Tailor, Hacker, Spy: The IPA and the Law on Espionage

In his recent autobiography, The Pigeon Tunnel, John le Carré laments about the “British public’s collective submission to wholesale surveillance of dubious legality”. He argues that this type of concerted wilful surrender is the “envy of every spook in the free and unfree world”. Rarely do I find myself disagreeing with le Carré, but this is one of those cases. It is not just the British, but rather the general public, worldwide, that is supportive at worst or apathetic at best to the real prospect of a 1984-type Big Brother global surveillance scheme. The revelations surrounding the British American surveillance programs, as part of their successful collaboration within the broader 5-Eyes Intelligence Alliance, have clearly had ripple effects around the world.

These ripples are causing tectonic shifts within the “law on espionage”, as a distinct body of lex lata rules within the jus gentium. If in 2007 Prof. Radsan had recommended that Academia simply succumb to the idea that “espionage is beyond the law”, the last decade of political and legal developments are pushing away from this policy position. Both the advancements in technological capacities and the prevalence of leaks and whistleblowing, have forced parliaments, courts, academics, and the media, to face the spooks head on in a way they have never done before. As the activities of intelligence agencies, once draped with a cloak of secrecy, are moving further and further into the light, customary international law (dependent by its very nature on state practice to emerge) is slowly beginning to take shape.

We should thus look at the IPA not only from the narrow perspective of UK law, European law, or even international human rights law, but rather embark on an understanding of the broader role this Act plays in the evolution of the Law on Espionage. In this regard, let me conclude with three short brief comments.

1. The Right to Spy (The Jus Ad Explorationem)– I have written elsewhere that espionage should be recognized as a sovereign right under international law. There is room to suggest that the same processes and justifications that have limited the right to use force in the early 20^th century are now taking shape to limit certain aspects of the right to spy. In that regard particular emphasis has been given to economic espionage. In 2015 the United States and China reached a “common understanding” not to conduct or support cyber espionage and intellectual property theft for the purposes of commercial gain. Similarly, Germany legislated a prohibition on “economic espionage” as part of its October 2016 “Communications Intelligence Gathering Act”. According to wikileaks, Hilary Clinton’s Campaign Manager John Pdesta, in a policy brief on U.S.-German Surveillance relations concluded that “If Germany were to propose to the US a bilateral engagement to prohibit industrial espionage as the starting point for multi-lateral agreements or standards, the response from Washington would likely be positive.” In this regard how should we interpret the IPA which allows for foreign surveillance for the protection of the “economic well-being of the United Kingdom” or the French legislation which maintains that foreign surveillance may be conducted to advance the “economic, industrial, and scientific interests of France”. These pieces of legislation are exposing different approaches as to the justifications for the right to spy, and its limitations.
2. Intelligence Sharing– As part of the IPA the U.K. had the opportunity to engage in statutory authorization of its intelligence sharing arrangements with foreign agencies, which it declined to do. The Equivalent German law which was adopted two months before the IPA, did include, in a precedential way, three provisions authorizing and limiting certain aspects of German intelligence sharing operations. The pending 10 Human Rights NGOs Case, calls on the ECtHR to establish that the principle of legality requires States to establish the powers to engage in intelligence sharing as part of accessible and foreseeable primary legislation. This is important as significant abuse can take place in the form of “circular exchanges” that is a circumvention of domestic legislation through direct access to data bases or intelligence collaboration with foreign agencies. As Professor Forcese described it in the context of certain accusations that were made about the ECHELON program as early as the late 90s: “Since privacy laws tend to restrict states’ ability to monitor their own citizens but not those located in other countries, each state’s agency allegedly was asked to spy on the other state’s citizens and, presumably, share the results”.
3. Extraterritorial Enforcement Jurisdiction in International law– In conducting cross border interception and hacking activities, Government authorities are breaking away from one of the oldest tenants of international law, the presumption against extraterritorial enforcement jurisdiction. As the U.S. Third Restatement of Foreign Relations (1987) clarifies: “A state’s law enforcement officers may exercise their functions in the territory of another state only with the consent of the other state, given by duly authorized officials of that state”. Indeed, as early as the SS Lotus Case it was established that the enforcement jurisdiction of States to investigate, prosecute, or apprehend an offender extraterritorially is limited by the territorial sovereignty of the foreign State. Whereas the sending of spies across borders was generally perceived as a tolerable violation of the enforcement jurisdiction principle, within the broader operational code of the law on espionage, the introduction of mass electronic surveillance capabilities are tilting the scales. If in the old world order we put up with, as a necessary evil, the naturally limited intrusions of human spies, a different balance must be struck now once we developed the capacity to surveil whole populations remotely and covertly. Current state practice, as reflected in the IPA, is pushing in the other direction, however, and it becoming more normal to engage in unfettered mass global surveillance with few restrictions and few raised eyebrows. This should keep up anyone who dreads for the future of the rule of law and the right to privacy and freedom of expression.