A Review of "The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age" by Laura K. Donohue

By Brenner, Joel | Journal of National Security Law & Policy, September 1, 2017 | Go to article overview

A Review of "The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age" by Laura K. Donohue


Brenner, Joel, Journal of National Security Law & Policy


Professor Donohue has given us a full-throated denunciation of the entire legal framework regulating the government's collection of data about American citizens and permanent residents, whom we call "United States Persons."1 She contends that in the wake of the digital revolution, current law "is no longer sufficient to guard our rights"2 - she's right about that - and that we have actually returned to the untrammeled issuance of general warrants that characterized the eighteenth century British practice that our nation's Founders rebelled against. She proposes a thorough revision of the laws governing the collection of foreign electronic intelligence within the United States and abroad, and she advocates severe limitations on the collection and access to digital information of any sort. I will address the merits of her arguments - but first a threshold question: Is this really a book about the future of foreign intelligence?

From the half-century leading to the end of the Cold War, the nearly exclusive control by nation-states over the tools of spy craft seemed like a natural monopoly. The complexity of modern cryptography from the 1930s onward put high-end encryption beyond the capability of all but a few intelligence services.3 Most forms of electronic intelligence gathering - advanced listening devices, sophisticated radars and antennae, and measurement of weaponry signatures, for example - were also developed by governments and were unavailable to most nations. Freelance and commercial human spying never went away, but they became the exception after Europe was rigidly divided into East-West blocs, and as border controls, which hardly existed before World War I,4 became the norm.

Governments' monopoly over most of the tools of spycraft did not disappear overnight. Between the collapse of the Soviet Union in 1991 and the 9/11 attacks a decade later, however, the monopoly largely vanished as these tools became the products and instruments of the marketplace. The encryption now found in an ordinary smart phone can be broken only with extraordinary effort, if at all, and its computing power dwarfs anything available to the presidents and premiers of a previous generation. The monopoly of the two Cold War superpowers over high-thrust rocketry and orbital satellites is ancient history. Countries around the world now compete with, or rely on, private companies to do the heavy lifting. The commercial satellite imagery readily available to the public is also jaw-droppingly good, at resolutions that were state secrets only a few years ago. The advantage of states over private enterprises in surveillance, counter-surveillance, and clandestine operations has not disappeared, but the private sector is catching up fast. At the same time, the digitization of information and the consequent explosion of freely available data have both delighted and disoriented us, turning private lives inside out and making secrets difficult to keep for individuals, businesses, and governments alike - including intelligence services. The ubiquity of data has also made open-source intelligence more valuable than ever and has called into question the scope, though not the necessity, of secret intelligence gathering and analysis. Given advances in the application of artificial intelligence, the pace of change is not slowing down. The challenges this environment presents to intelligence services are severe.5 In the wake of these developments, the distinction insisted upon by the grand viziers of Langley, South Bank Legoland, and Moscow Center between intelligence (that's what you think, with a small "i") and Intelligence (that's what we think, with its reifying initial capital) appears risible.

Profound political, ethical, and legal challenges also confront agencies that make a living stealing secrets. Stealing secrets involves breaking the laws of other nations, including friendly ones. In an increasingly integrated world, we can expect new norms, and perhaps laws, to control that kind of activity. …

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