Schneier on Security

Skeptical • January 18, 2015 7:12 PM

No, Marshall McLuhan did not foresee this. If you want someone who saw this disruption coming, read about Andrew Marshall.

I understand why the authors of the article might have invested more time in trying to read and understand the documents, and then publishing, than they did in striving to track down the threads of the military, international relations, and foreign policy theories and policies that would put this into better context for them.

But unfortunately, because they don’t yet understand the context (they don’t lack the intelligence, but we all probably think we know more than we do about certain subjects, and time is limited after all), the sensationalist misinterpretations that have plagued Spiegel’s coverage of the documents continue. Let me mention the most serious, in which Spiegel gives the impression that NSA & Friends are already intent on escalating to a full war.

From a military perspective, surveillance of the Internet is merely “Phase 0” in the US digital war strategy. Internal NSA documents indicate that it is the prerequisite for everything that follows. They show that the aim of the surveillance is to detect vulnerabilities in enemy systems. Once “stealthy implants” have been placed to infiltrate enemy systems, thus allowing “permanent accesses,” then Phase Three has been achieved — a phase headed by the word “dominate” in the documents.

US military planning has a generic template of phasing. Phase 0 is the shaping phase. As described by the US Department of Defense (source to follow):

Shape phase missions, task, and actions are those that are designed
to dissuade or deter adversaries and assure friends, as well as set conditions for the contingency plan and are generally conducted through security cooperation activities. Joint and multinational operations and various interagency activities occur routinely during the shape phase. Shape activities are executed continuously with the intent to enhance international legitimacy and gain multinational cooperation by shaping perceptions and influencing adversaries’ and allies’ behavior; developing allied and friendly military capabilities for self-defense and multinational operations; improving
information exchange and intelligence sharing; providing US forces with peacetime and contingency access; and mitigating conditions that could lead to a crisis.

Put differently, Phase 0 in whatever document Spiegel has viewed or heard about likely describes the normal pursuit of national security. The US is working to avoid the prospect of war while simultaneously enhancing its ability to deter, and if necessary, win, any conflicts in which it might become involved.

See page 114 of Joint Publication 3-0.

Meanwhile the Spiegel continues breathlessly:

This enables them to “control/destroy critical systems & networks at will through pre-positioned accesses (laid in Phase 0).” Critical infrastructure is considered by the agency to be anything that is important in keeping a society running: energy, communications and transportation. The internal documents state that the ultimate goal is “real time controlled escalation”.

The purpose is deterrence, and you actually have to look at the weaknesses of the US, relative to certain potential adversaries, to understand why. For any adversary that the US might face, attacking in the cyber-domain is a tempting avenue. It may appear cost-effective, and the US relies heavily on the cyber-domain in almost all spheres of activity. Given the number of intrusions into US systems, and the strategic incentives at work, it would be very surprising – in fact shocking – if other nations had not already built CNA capabilities against the US.

Indeed, for nations who wish to simply deny the US the ability to interfere with any military adventures (however righteous in their eyes) that they might launch, CNA capabilities open the door to some very attractive strategies. China, for example, is investing heavily in what are called A2/AD capabilities. Substantial CNA capabilities could play an important role, in a variety of ways, in achieving the same objective as more conventional A2/AD strategies.

Deterrence also explains the reason behind a desire to achieve “real time controlled escalation.” The purpose of being able to control escalation is to nudge an adversary into rationally entering into peaceful negotiations rather than opting for additional rounds of mutually inflicted damage.

As often described, there are two basic variants of deterrence. One, deterrence by denial, means persuading another party that his attack would fail to achieve his objectives and is therefore not worth the attempt. Two, deterrence by punishment, means persuading an enemy that though his attack might succeed in its short-term objectives, it would invite a retaliation sufficiently damaging to make the attack counter-productive (if not suicidal).

Given the steady drumbeat of reporting about cyber intrusions into systems vital to the normal functioning of the economy and the delivery of essential goods and services, it is manifestly unsurprising – indeed it is entirely rational – that the US would develop a means of deterrence by punishment, as deterrence by denial may not be credible.

All in all, this is mostly a dump of a lot of properly classified information regarding legitimate intelligence and military activities by Western democracies (though it was a bit humorous to see the slide with the OSI model with Secret printed on it).

But little of this is funny. These slides give foreign governments outstanding insight into where the US and its allies are succeeding, where they’re failing, and what their strategies, tactics, tools and procedures are. They do so without revealing any criminal activity on the part of any of the entities discussed in the slides. The indignant tone of the articles seems to derive from a misunderstanding of the nature of geopolitics and foreign policy.

The talk of developing international norms is good, we must be realistic. Somewhat ironically, in fact, the US has already made it very clear that it will consider CNA in the same way it would consider any other attack, and would respond with proportionate effect in any domain, not just cyber.

This is, in fact, bringing cyber offensive operations into a framework of “rules” of the game – and the USG’s response to NK is an important part of that.

These are not the “rules” one will find in a treaty, but then those are sometimes not the most important ones to consider, particularly when no treaty is visible for a long, long time.

Skeptical • January 20, 2015 3:21 AM

@Dirk: But it isn’t. If nothing else, what Snowden’s treasure trove has revealed is that the Five Eyes are spying on world plus dog under the motto “collect and subvert it all”. Target: everyone, both at home and abroad, not just terrorists and rogue nations.

You missed my qualification. I stated that the documents revealing US intelligence activities against non-democratic nations such as NK and China should not have been disclosed. I am not referring to any other documents – I suspect we’d disagree about other documents, but frankly I think we should be able to agree that it’s a bad idea to reveal US intelligence collection aimed at NK and China.

You are conflating normal with common. Just like poverty, hunger and disease, espionage is common, not normal.

Dirk, I can find programs to eliminate poverty, hunger, and disease. I can name US and international programs and institutions designated to do precisely that. I can find international agreements stating the elimination of such things to be a common goal of all humanity.

And yet nowhere, not in any treaty, not in any statement of understanding, not in any initiative anywhere, can I find national or international efforts aimed at stopping espionage.

This is because espionage is considered a normal state activity – like diplomacy, like having a military or a police force.

In an international system in which war has been a frequent occurrence, and in which each legitimate government is charged with the responsibility of securing the nation, espionage is in many cases a duty of a government to undertake. At its very best, intelligence enables a good government to adopt strategies and take actions to avoid war – or, if one occurs, minimize the damage.

Someday, I believe that we will live in a world where espionage is no longer necessary – indeed when military forces of immense power are no longer necessary. Neither of us will be alive to see it, and those who do see that day will likely lack a full appreciation for what it means.

Until that day arrives, though, we both know this is deadly serious business. Should matters ever turn hot in East Asia, Snowden’s leaks will be remembered as the most irresponsible and egregious acts of espionage in history. It’s disturbing to me – probably to a lot of people – that those publishing these leaks, that the authors of these leaks, do not seem to see the whole picture. There are matters at stake here beyond the raising of very fair questions about the nature of signals intelligence in the internet age. And anyone who cares about human rights, and who cares about making through the 21st century without a war between great powers, must take an interest in these matters.

re: “Ki-yi-yi-yi-yi Q.E.D.” and assorted other names

I pegged a name he used/uses more frequently on this forum and elsewhere – he also used/uses to post on a more politically focused forum, though even odds he’s been banned since then. I don’t think he had realized how many idiosyncratic references and verbal mannerisms had crept into his more emotional outbursts, or how identifying they could be.

I also think he detracts from the conversation when he indulges himself in these little diatribes, but really the nature of his comments also suffice as the answer to them. One can hear the angry intolerance for other perspectives in his tone, and he confuses clumsy attempts at insulting me with sophisticated rebuttals.

Anyway, while I understand your response to him wasn’t an attempt to defend me, I appreciate the effort to keep the level of conversation elevated and at least somewhat reasonable.

Skeptical • January 20, 2015 8:02 PM

@Dirk: On the national level, and as I said earlier, pretty much every civilised country has laws carrying really stiff penalties for any act of espionage committed against it by either domestic or foreign perpetrators. As an example, I refer to the US 1917 Espionage Act and the 1996 Economic Espionage Act. Full stop. End of discussion.

Let me repeat what I said several comments ago:

every state has laws against espionage conducted against it, while also practicing espionage against others.

Governments spy on each other as a matter of course.

National laws direct and authorize the establishment of intelligence agencies, the function of which is to conduct espionage against foreign nations.

Governments do so openly. They fund intelligence agencies, they advertise for recruits, they often declare local heads of their espionage units in foreign countries to the host government, and they celebrate and reward those who made sacrifices in the course of their duties.

So, let’s get real about this.

The situation at the international level, unfortunately, is much more ambiguous. Here, espionage during wartime is mostly governed by the 1907 the Hague Regulations, the Geneva Conventions and Protocol 1 Additional to the Geneva Conventions.

There’s nothing ambiguous about it. Espionage is not a crime under international law in either war or in peace. Period.

Where things become blurry is intelligence gathering or espionage during peacetime. Although all but clear, the situation is less straight-forward than you present it (“espionage is normal”). This is just one of three different views held by legal scholars.

No, it’s the legal reality. There may be some who want espionage to be forbidden under international law, or even considered a criminal act under international law, but there’s no serious disagreement at all that as the law currently stands espionage is permitted by international law.

You are welcome to cite to anything that might be considered an authority in international law, such as a treaty governing relevant parties, or cases considered by relevant courts, or even the customary practice of nations.

From where I’m sitting, the appaling absence of well-defined international law governing the subject matter is due to the general hypocrisy of those nations that stand to lose most by outlawing it. If their own national laws would be reflected in any way in international law, there would be nothing normal or legal about espionage.

Again you somehow seem to think that national laws forbid espionage against foreign governments. They don’t. Quite to the contrary, governments openly fund, operate, and celebrate espionage they conduct against others. Moreover the laws of those governments explicitly and expressly authorize espionage against others.

Then again, if we extend espionage in peacetime also to the global surveillance dragnet by NSA/GCHQ, then the US and its spy partners IMO are not only violating the UDHR, but just as well a number of other international treaties they are signatories to. @Clive already pointed that out too in this thread, and I’ve made the same case on this forum in the past.

This is wishful thinking, not a legal argument.

Skeptical • January 21, 2015 9:07 AM

@Dirk: What I was trying to point out is that among legal scholars there is no consensus whatsoever about this. So unless you are a leading authority in the field, you cannot make this claim as if it were a universal truth and you are deliberately misleading other readers by doing so. And this is only for espionage during peacetime.

Dirk, if by “no consensus whatsoever” you mean widespread disagreement, then I disagree. There absolutely is broad acceptance that espionage is not a crime under the few conventions which set forth international crimes, and there is absolutely broad acceptance that espionage is not forbidden under international law in the absence of a treaty between relevant states that actually forbids it.

Now, if by “no consensus” you mean “legal scholars do not unanimously agree,” then of course that is true, but not very meaningful given the few things that legal scholars unanimously agree upon.

You are dead wrong on espionage during wartime. As an example, I refer to Protocol I, Article 46, which states that military personnel gathering intelligence while in uniform are to be accorded the treatment due other combatants, but expressly withholds these protections from undercover operatives or agents captured while in the act of conducting espionage.

No, you’re confusing the fact that spies are not protected by POW status if captured (with an exception) with the idea that the Conventions forbid espionage. The latter is not logically implied by the former. For clarity, let me note I use the phrase “logically implied” in the same sense used when we say, as a matter of propositional logic, that p implies q (i.e. if p is true, then q is true).

The Geneva Conventions do forbid certain actions, such as the destruction of natural resources or property as reprisal. And they will explicitly state as much when they do, along the lines of “the destruction of property as reprisal is forbidden.” Nowhere however is espionage forbidden.

Instead those engaged in espionage are denied the protections of POW status, and even then, only so long as they are captured before they rejoin their forces. If a person commits espionage, successfully rejoins his forces, and then is captured, he is then to be accorded POW status.

Emphatically, that is not the same as declaring espionage to be forbidden conduct. Where the Conventions forbid conduct, they do so explicitly.

Skeptical • January 22, 2015 3:41 PM

Let me preface my response below by making two points.

First, there is nothing hypocritical about national laws against espionage in conjunction with national laws and practices authorizing and engaging in espionage. National laws (none that I am aware of, anywhere) do not forbid or criminalize all espionage. Instead these laws each criminalize espionage against the particular government making the law.

Thus espionage against the United States is legally criminalized in only 1 country. So too with regard to espionage against Russia, or Germany, or Britain.

These laws are understood to be efforts by each government to combat espionage targeted at each of them respectively, not to indicate any sense that espionage is somehow illegitimate.

President Obama this week said it was unacceptable that foreign hackers be able to bring down American networks. Dirk believes this to be a statement of hypocrisy. But the President was arguing, from the vantage of the self-interest of the United States, that the US must develop better defenses, and was quite obviously not endorsing a general moral rule that no state should have the capability to launch successful attacks against any other.

Second, if international law does not forbid espionage, then it is, so far as international law is concerned, permitted conduct. The attempt by some to retreat to a position in which they agree that international law does not forbid espionage, but claim that this means espionage is simply in a “twilight zone” is empty. It is not required that international law expressly endorse every aspect of conduct that a person or non-governmental organization or state may undertake, and that aspects neither endorsed nor forbidden are in a twilight zone.

One can say that we are uncertain as to whether international law, by virtue of provision X in Convention Y, or because of Z norm treated as customary int’l law by nations, forbids or allows espionage. But that is a very different assertion than the one which states that international law is silent on espionage, that espionage is essentially ungoverned by international law. In the latter case, we are forced to conclude that espionage is permissible conduct under international law.

However, that something is permissible under international law does not mean that it is protected under international law. Thus states may, and do, pass their own laws forbidding certain types of espionage against certain countries within their respective jurisdictions.

@Dirk:

Re: whether espionage is forbidden, or considered a crime, under international law in an international war:

You argue that I am “dead wrong” that espionage is not forbidden by int’l law in war, pointing out that captured spies are not granted POW status under the Geneva Convention.

I respond:

No, you’re confusing the fact that spies are not protected by POW status if captured (with an exception) with the idea that the Conventions forbid espionage. The latter is not logically implied by the former.

To which you say: I’m afraid that is a matter of interpretation. Even if not a direct logical implication, it is a dead giveaway that such conduct is not considered normal activity under the rules of war.

No Dirk. For example, the Geneva Convention permits hostile soldiers to be captured and imprisoned for the duration, or killed in battle – this does not imply that the Geneva Convention makes it illegal for one to be a soldier in combat. Instead it simply denotes certain boundaries of treatment. Similarly, it denotes certain boundaries of treatment with respect to captured spies. It does not forbid any Party from undertaking spying, but rather describes how a captured spy may be treated under various circumstances.

This is a distinction dating back to the foundations of international law. To quote Hugo Grotius (On the Law of War and Peace, Cambridge University Press, 2012, page 355),

…spies – whose sending is beyond doubt permitted by the law of nations – if caught are usually treated most severely…. Sometimes they are treated with justice by those who clearly have a just cause for carrying on war. By those without such a just cause, however, they are dealt with in accordance with that impunity which the law of war accords.

As stated succinctly in the Encyclopedia of Public International Law (North-Holland Press, 1982) on page 151 of Volume 3, espionage is a legitimate belligerent operation and is not a violation of the laws of war.

This is a proposition you will find repeated in any modern textbook on the issue. There are also various cases deciding in international courts noting the same.

In short, to use your words, you are “dead wrong” on the matter of espionage in war.

So much for the question of espionage in war.

As to espionage in peace, I wrote:

There absolutely is broad acceptance that espionage is not a crime under the few conventions which set forth international crimes, and there is absolutely broad acceptance that espionage is not forbidden under international law in the absence of a treaty between relevant states that actually forbids it.

You reply: Could you please answer my question on what authority your are making your claims instead of just emphatically reasserting them without offering any references ?

I refer you to the same general source already cited. You might also examine any modern introductory textbook to public international law, e.g. Akehurst. International Law and Espionage (Kluwer Law International, 1995) is a well respected work that will tell you the same.

And while looking for those perhaps also pay some attention to those stating the opposite. The only broad acceptance of anything in that field is that for as far as international law is concerned it’s a twilight zone many countries – especially those indulging the most in espionage – are happy to preserve as is.

I believe I answered this already in my first paragraphs. But let me say further that you confuse the existence of different views on a subject with the question of whether each of those views has equal weight. I can very easily find articles in law reviews and journals that attempt to argue positions that are viewed as incorrect, weak, highly speculative, and not something which one would responsibly tender as legal advice to a client.

I hope that the above comments answered any questions you had, and resolved any points of disagreement between us on the status of espionage in international law.

Skeptical • January 22, 2015 3:51 PM

Wrong about the last 4 too. Let me just re-post them in corrected form. Dirk’s comments are in italics; my responses are not. The paragraphs properly formatted are as follows:

You reply: Could you please answer my question on what authority your are making your claims instead of just emphatically reasserting them without offering any references?

I refer you to the same general source already cited. You might also examine any modern introductory textbook to public international law, e.g. Akehurst. International Law and Espionage (Kluwer Law International, 1995) is a well respected work that will tell you the same.

And while looking for those perhaps also pay some attention to those stating the opposite. The only broad acceptance of anything in that field is that for as far as international law is concerned it’s a twilight zone many countries – especially those indulging the most in espionage – are happy to preserve as is.

I believe I answered this already in my first paragraphs. But let me say further that you confuse the existence of different views on a subject with the question of whether each of those views has equal weight. I can very easily find articles in law reviews and journals that attempt to argue positions that are viewed as incorrect, weak, highly speculative, and not something which one would responsibly tender as legal advice to a client.

I hope that the above comments answered any questions you had, and resolved any points of disagreement between us on the status of espionage in international law.

Skeptical • January 22, 2015 10:05 PM

@Dirk:

Nowhere will you find it stated that Parties are forbidden from the use of espionage. Instead you find only that the person of a spy, if captured under certain circumstances, is at the mercy of his or her captors.

Which boils down to the act itself being legal but the person committing it a criminal. A truely remarkable legal principle.

And the soldiers firing upon a hostile force are also acting legally, but the Geneva Conventions nonetheless state that they may be killed or captured. As to the spy, whether he is a criminal depends on how he was captured, and then upon the national law in which jurisdiction he was captured. So far as the Geneva Convention is concerned, so far as the Law of Armed Conflict from the 17th Century to the 21st Century is concerned, he is not a criminal. His protections are much less – though they exist – and so his risks much greater. And this is by design.

I’ve quoted at least three different sources to that effect – all general, well respected sources moreover, designed to give the mainstream view on the subject. There are numerous cases as well which I can cite directly.

I’m not sure why you continue to fight this.

Until such a time that there is a broad consensus among legal scholars – which contrary to what you’re saying isn’t -, all three views have equal weight for me. As I said before, I am currently siding with the view that under international law, espionage is neither legal or illegal.

If the law is silent on the matter, Dirk, then the law permits it. The consensus among international legal scholars, practitioners, and experts, is that espionage is permitted under international law. I’ve made an attempt to cite from mainstream sources that would state mainstream and prevailing views to make that point.

They don’t, but thanks for the interesting pointers. I guess we can keep going on like this for quite some more time, throwing back and forth quotes and references supporting either thesis

No, we can’t. You won’t find much support even in the law reviews articles you’ve googled. I have caselaw, well respected treatises, and so on, in some abundance to cite in return, though as I’ve said, since it’s not really a controversial matter I don’t have much interest in slogging through it.

Interesting discussion, but the only thing I’m willing to agree on at this is time is that we, well, and as usual, disagree.

Fair enough.