The practice of foreign electronic surveillance (here referring to a classic signals intelligence practice entailing the interception of communications data carried by fiber optic cables) and its normative status have been troubling both international scholars and practitioners. Amidst numerous interpretation approaches to fit the phenomenon under the hub of international law – a framework that was never intended to regulate much of states’ intelligence practices –, the surveillance continues running on full speed under no apparent normative umbrella.
Hardly surprising, the practice aligns with the post 9/11 ‘global moral panic’ that accelerated preemptive security, in which cyberspace was also labelled as a threat. Accordingly, a rather realist interpretation of inter-state affairs in cyberspace took over and brought the ever evolving information and communication technology into power considerations as well. Technology is thus understood as a material capability adding to the arsenal of already existing coercive instruments that powerful states dispose of to get others to do what they would otherwise refrain from doing. Following that dominating realist sentiment, scholarship dealing with the ‘international law – surveillance’ relationship has also been focusing on state conduct and inter-state interactions as determinant factors, and naturally conceptualizing the surveillance apparatus as an aspect of states’ activities. Any consideration of foreign surveillance that looks beyond the ‘state behavior – interpretation – regulation’ cycle has thus been conceptually difficult to advance. A cul-de-sac. Or is it really?
Paradoxically, as governments moved to ‘secure their national interests in a global network’ and therefore took action online as well, their surveillance infrastructure has grown internationally-networked too. A prominent example of a well-established network-structure in that regard was delivered years ago by the revelations on the Five Eyes and their allies. The Five Eyes is a treaty-based intelligence coalition committed to cooperation in signals intelligence and comprising Australia, Canada, New Zealand, the United Kingdom and the United States. This formally established alliance has numerous (less formal and/ or visible) partnerships with agencies around the globe. Their interaction is conveniently anchored in hardly traceable agreements that make sure the respective network remains flexible enough to adapt to new intelligence and security challenges on the one hand, but to also evade the scrutiny of the international community eager to subject its actors to obligations and duties by means of international law on the other. The technological reach and sophistication of the revealed practices conveniently diverted the debate away from their networked nature. A turn, however, I submit should be undone.
Transgovernmental theory has long recognised the importance of state agencies’ key partnership with their foreign counterparts. Slaughter (but also other contemporary ‘transgovernmentalists’) studies the participants, practices and effects of the so-formed networks and decisively positions them within the international order. In her scenario technology is not a threat, but one of the facilitating factors. As a result, she introduces the idea of a different world order – one that is not composed of states but of their constituting units, the government agencies, that when organized in clusters portray actorship and influence norm emergence in a number of governing sectors alongside sovereign states and international organisations.
Applying this line of thought to the surveillance dilemma at hand allows us to reconsider the question of actorship in joint intelligence practices. By moving away from the classical understanding of ‘agency’ as a sub-state entity and looking into the formed transgovernmental circles as a whole, as an ensemble, the implications of networked intelligence practices designed to have low political visibility and no centralized coercive authority can be better identified. Where powerful actors operate, norms come into being. The practice of foreign surveillance, the norm as a persistent behavior, is there, whether its implications are to our liking or not. Recognizing transgovernmental intelligence networks as actors allows us to see who is behind that particular norm formation and to consequently reset the surveillance discussion. Admittedly, said norms are quite remote from black letter law, but maybe not that far away from a soft law formation. If we have been chasing our tail for a while, why not put on a new pair of glasses?