Pegasus is not the problem with electronic surveillance

Using state-of-the-art technology to spy is nothing new. The news that everyone can be spied on, from ordinary citizens to heads of State, is anything new as well. Resistance, as the Vogons used to say, is useless? by Andrea Monti – Initially published in Italian by Strategikon an Italian Tech Blog

The news that Pegasus, yet another piece of spyware, this time of Israeli origin, has been used to spy on journalists, politicians and NGO activists has caused a scandal in the media and among social network users. Many evoked ghosts like global surveillance, ‘invasion of privacy’ and even a ‘global humanitarian crisis‘.

In reality, there is little to be surprised or scandalised about, because even if one only remembers the recent Hacking Team case , one would understand that the Pegasus case is a non-news story.

A few weeks ago, I wrote in Strategikon  that there is nothing strange about governments collecting information on anyone, including heads of State, in any way and by any means, even by breaking the law. It may be unpleasant and disturbing, but that does not change that such actions are perfectly consistent with protecting national security. As the character in an iconic Altan cartoon says, ‘spies spy’, and the interlocutor rebuffs: ‘how crazy!’. The problem, therefore, is not the use of a particular gimmick to gain a strategic advantage but how each State decides to limit (or extend) its reach when ‘national security’ is at stake. Once again, the tail wags the dog .

Technological espionage has always been practised with the tools available in the specific historical period and, lately, exploiting companies belonging to security and non-security sectors.  Politicians, journalists and activists have always been the target of more or less formally legitimated espionage entities. On the other hand, politicians, activists and journalists were also often ‘confidential sources’ of the aforementioned espionage entities. These latter used to recruit them by exploiting greed, a desire for revenge or more or less deep-rooted ideological convictions.

The history of the Italy-fought Cold War which is beginning to surface, mainly due to the declassification of British archives, is the best proof that this observation is correct. Most probably, there is still much to discover and much more that will never come to the attention of historians. However, what is already available is sufficient to make a few remarks (not particularly original for those who deal professionally with these matters).

Firstly, those who invoke the intervention of the judiciary or of the various independent authorities to put an end to this ‘scandal’ should know better. Courts are prevented de facto and then by law from interfering with these activities through the affixing of State secrecy. Independent authorities do not and cannot have any role in the national security sector since the EU Treaty does not give them such competence. Yet, it is unthinkable that in a Western democracy, there can be more or less official government apparatuses – and companies – that operate outside of any control. Or is it?

Secondly, whatever the approach, there is no solution to the problem from a theoretical point of view. If the rule of law applies, the State cannot exceed certain limits, whatever the cost. At the same time, in the face of protecting the ‘superior interest of the State’, it cannot be the law (the result of political compromises) that could represent a limit. It is the paradox of wondering what happens when an unstoppable bullet hits an indestructible wall .

In practice, however, the synthesis between the two needs comes from renouncing to apply absolute categories. What counts is to achieve the ‘tactical objective’ – i.e. the short-term goal – while postponing the management of the consequences to the future, should they arise.

Thus, rules are deliberately confusing. One can violate them by denying having done so thanks to the technique called plausible deniability . What is not possible to achieve with law-drafting engineering, one achieves with the creation of a separate reality. And when the ‘illegal’ action becomes public knowledge, the demon is exorcised by commissions of enquiry, journalistic investigations and historical analyses, only to start again to celebrate the ritual by evoking a new haunted ectoplasm.

A chief example is the final report of the Church Committee published in 1976. The Curch Committee was a body of the US Parliament tasked to investigate the clandestine activities of the US secret services. It contains many inconvenient truths and grand statements of principle. However, its revelations have not changed the way the intelligence apparatus works. More pragmatic is the position of Israel, which to date has not yet passed a law to regulate Mossad activities , including electronic surveillance. There are no definitive official positions on this point, and no one knows what the future holds. However, what is certain is that the Institute still maintains enormous operational freedom under the direct dependence of the Executive.

This last consideration allows us to return to the point and conclude our reasoning. As has always been clear, national security has little to do with protecting individuals and much to do with the survival of the State. However, with all the limitations and complexities of balancing opposing and irreducible needs, it is not true that all states operate in the same way. Notwithstanding its recent history, Italy does not (any longer) have hyper-controlling tendencies, and the balance between the powers of the State makes it less easy to propose schemes like those we have experienced in the past. The upcoming Agency for cybersecurity, in other words, will not be a reboot of the defunct Ministry of Interior’s Ufficio Affari Riservati.

In the background, however, three huge issues remain.

The first is how Big Tech has created a sick technological ecosystem, invaded by vulnerabilities and programming flaws that facilitate electronic espionage. The second is their role in taking over States in the governance of national security . The third, and most terrifying, is the weaponisation of knowledge. Never before has knowledge so aggressively been turned into a weapon.

However, knowledge is not only in the hands of States anymore. To prevent activists, independent researchers, and organised groups from building tools to defend themselves from the (right or wrong) States’ invasiveness, will we return to an era in which knowledge will only be allowed to a select few?

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