Espionage, or spying, is a dangerous and illegal activity. It can blackmail politicians, influence battles, and change the course of history.
But it’s not as glamorous as it seems—especially for those caught. Even in the rare cases when a spy is true, the consequences are severe. Espionage can be punished by prison.
Industrial espionage involves stealing intellectual property – formulas, algorithms, strategic plans and other valuable information that gives companies an edge over competitors. It can be carried out by outsider perpetrators (such as foreign governments) or by disgruntled employees who see an opportunity to gain financial benefits from their actions.
Following the collapse of the Soviet Union, many former communist countries began using their underemployed spies to extract industrial secrets. As a result, businesses began to take industrial espionage more seriously and developed safeguarding tactics like building Faraday cages to shield computers from electromagnetic eavesdropping. In addition, Congress passed the Economic Espionage Act to impose stiffer penalties for stealing trade secrets.
Today, business owners are concerned about protecting their intellectual property from cyber attacks and other threats that could be carried out by disgruntled employees or even foreign governments. These threats include a repurposed employee’s unauthorized access to confidential data; misuse of email or social media sites to gather information; the use of wiretapping, lack of SSL or man-in-the-middle attack methods to listen in on competitor communications; and the use of various types of malware to gain access to a company’s networks.
One of the most notorious cases of industrial espionage occurred when Hewlett-Packard hired investigators to spy on… itself! To determine who was leaking company information to the press, HP used “pretexting” — a deceptive method of collecting private phone records by contacting phone companies and claiming to be seeking information on a specific individual.
Economic espionage, also known as corporate espionage, describes the use of espionage techniques in commercial or business settings. Unlike nation-state espionage, which involves information gathering for the benefit of a foreign government, the aim of economic espionage is to give companies or organizations an advantage in the global marketplace by getting secret or proprietary information. It includes the acquisition of intellectual property like industrial manufacturing ideas, techniques or processes, recipes and formulas. It can also involve the theft of proprietary or operational information like customer data, pricing, sales or marketing, research and development, policies or planning strategies, the changing compositions and locations of production, and other business information. It may be carried out by the use of different methods including stealing, bribery and blackmail, or through technological surveillance such as cyber-attacks.
The FBI estimates that billions of dollars are lost annually to foreign competitors who conduct economic espionage on flourishing U.S. companies and technologies. In fact, while corporations spend large sums on putting counterintelligence (CI) measures in place to protect their sensitive and confidential information, they often overlook common sense safeguards such as document disposal controls, physical premises access limitations, avoiding revealing company data through public channels, and ensuring paper documents are not accessible online.
While it can happen in any industry, key technology industries such as computer, semiconductor, electronics and automotive are especially vulnerable to espionage because of their intense pressures to get new products to market. Economic spies can use a range of tactics, some illegal and some unethical, from employing moles to searching trash, sympathizing with disgruntled employees to using social media to spread gossip, or even staging mock job interviews to steal critical information.
The military aspect of espionage involves covert gathering and dissemination of information on the weapons, strategy and tactics of an enemy or an ally. In wartime, this is done through technical methods, such as bugging and cipher machines. In peacetime, it can be done by more personal and psychological means, including blackmail and manipulation of officials.
A very early source of military intelligence was the system of military attaches, who operated through the embassy in foreign capitals. This was later supplemented by a separate, more secretive system of spies called agents or officers.
Such spies are often civilians, but some have been members of the military, such as Navy Chief Warrant Officer John Walker, who sold secrets to the Soviets that could have neutralized U.S. naval forces in a future conflict, and CIA officer Aldrich Ames, who betrayed the country for almost two decades.
The sensitivity of this type of information requires that it be kept secret, which makes it attractive to spies. It may be classified for national security reasons or because it might jeopardize economic development or harm international relations. The spies who gather this information can be punished by the UCMJ’s “aiding the enemy” and “espionage” provisions. The country whose information is being divulged can also prosecute spies under its own laws, such as in the case of Julius and Ethel Rosenberg.
Despite its relatively low profile, the practice of political espionage is not to be underestimated. It can involve more subtle methods of obtaining information than other intelligence collection disciplines, such as bribery, blackmail, and surveillance. Typically, the goal of political espionage is not simply to obtain military and economic intelligence, but also to discover secrets of a country’s foreign policy. This type of espionage is perhaps most notoriously practiced by the CIA and other national intelligence agencies, which are responsible for gathering information on countries with whom they are in a state of war or are in the process of developing a strategic relationship.
As such, political espionage can pose significant risks to individuals who expose their government’s misdeeds and even to nations that engage in it. For this reason, it is not surprising that the Espionage Act of 1917 has been invoked against a number of individuals, including peace activists such as Charles T. Schenck and the Pentagon Papers whistleblower Daniel Ellsberg. The act has also been used against critics of the United States during times of conflict and as a tool for chilling First Amendment speech.
Despite this, customary international law continues to accept espionage as an allowable activity, but the emergence of cyber technology is prompting a reexamination of that view. This Comment surveys the longstanding scholarship on espionage’s permissibility and concludes that as more countries develop mature cyber capabilities, private espionage is likely to become a global reality, which may in time necessitate a change to existing international law to govern its conduct.