I spy, you spy, we all spy – but is it legal?

It is sensible to keep an eye on our friends in order to manage risk. Image from shutterstock.com

The specifics of whose phone was tapped and when may be new to Indonesia but the fact that Australia monitored its close friend’s activities will not be a surprise. Governments have been watching each other since before the telegraph. And they will continue to do so, because intelligence-gathering is fundamental to the maintenance of the modern state.

But is it legal for nations to spy on each other? And what protections are in place to ensure citizens, non-government organisations and corporations aren’t caught up in this web?

Spying on a friend

We should be wary of outrage over the reported activity of the Australian Signals Directorate and other agencies. Their collection of information about Indonesia’s leaders is legal. It may be diplomatically counter-productive or ethically problematical but it is lawful.

Just as importantly, it shouldn’t be any surprise to another government. Withdrawing an ambassador is traditional diplomatic street theatre, akin to the scene in Casablanca where Captain Renault exclaims that he’s “shocked! shocked!” to discover gambling on the premises … and then collects his winnings. The unforgivable rift may disappear after the coming Indonesian election and after all sides have milked the outrage for everything that it’s worth.

Mid-19th century British prime minister Lord Palmerston, writing in a volatile world that resembles our own, once indicated that Britain had no permanent friends or enemies, only permanent interests. Many people in the Australian government take the same view.

Intelligence-gathering may be diplomatically counter-productive but it is lawful. EPA/Romeo Gacad

They recognise, for example, that Indonesia’s leaders have acknowledged concerns about the role of the military and independence of the judiciary, systemic corruption resembling that in China, questions about terrorism, disagreements about resources in the Timor Gap and human rights abuses regarding Irian Jayan separatism, and ethnic violence in the 1960s that saw the killing of several hundred thousand people.

It is sensible to keep an eye on our friends in order to manage risk (friendships, like marriages, sometimes go sour) and to minimise frictions. We assume that our friends are watching us to the best of their capability. On occasion we catch them breaking formal or informal rules, with South Korea, for example, reportedly sprung hunting for trade negotiation information earlier this year.

Protecting corporations, NGOs and individuals

International law is essentially silent about each nation’s surveillance of other governments, including covertly listening to official calls and chat by leaders with their loved ones about the kids or the offshore bank account. Intelligence collection is like sausage making: enjoy the meal but don’t talk with your fellow diners about what happened to the pig or the sawdust.

There are global concerns about official surveillance of individuals and organisations in other countries. Much of that surveillance isn’t high-tech. One example is the periodic outrage when it is revealed that friendly totalitarian states are using student informants to keep track of their citizens who are studying in other countries or to report on human rights advocacy groups in those countries.

In practice, many businesses, NGOs and individuals hope that they won’t be noticed or rely on self-help. Some individuals, particularly human rights activists, are resorting to privacy tools such as TOR, a software program that prevents others from watching your internet connection.

But the same tools can, of course, be used by terrorists and commercial criminals, which is why national security agencies seek back doors – methods that bypass normal authentication procedures to access encrypted communications.

To protect their online privacy, others rely on pseudonymity or have a small electronic footprint. Some businesses and even NGOs apparently trade favours: you look after me (by providing information about an overseas competitor or an official tender) and I’ll help you (provide a report or provide cover for your operative).

Bodies such as the Australian Privacy Foundation have identified two challenges to maintaining privacy.

Some individuals are resorting to online privacy tools that prevent others from watching their internet connection. Image from shutterstock.com

The first is that governments – and elites such as the families of Indonesia’s leaders – have access to protection that isn’t available to less privileged people. They expect to be targets. They can do something about it. Does that mean their privacy, central to human dignity, is less important? Is their privacy an acceptable casualty?

From a legal perspective, can we provide privacy protection to non-citizens outside Australia? Not easily under the Westphalian system that respects national sovereignty or meaningfully under the UN. Certainly not with support from Putin, Assad and Xi Jinping. And this wouldn’t be possible without the support of social media giants or from Murdoch’s News.

That media group has disregarded outrage over privacy breaches in the UK and this week has stripped privacy from ABC journalists by revealing their salaries.

The second is the Brin Dictum: “they” (governments and large corporations) can readily look at us, often without our knowing, but “we” cannot readily look at them. That differential reduces accountability and, as critics of the Trans Pacific Partnership negotiations have pointed out, inhibits informed policymaking.

A secret or just embarrassing?

Noise about spying on Indonesia has drowned out the Abbott government’s resistance to providing access to information about its activity, including information about the people who are presumably drowning off Australia’s north coast.

As a nation, our trust in government not to misuse its spying powers will be enhanced if there’s more transparency about activity that’s embarrassing rather than truly secret. We should be able to expect a resonant statement by the national Information Commissioner, champion of both privacy and freedom of information. Alas, that watchdog remains silent.