Espionage Is Often Morally Controversial

Espionage involves the collection and dissemination of classified information. It has long been a part of the foreign policy toolkit, but is often morally controversial.

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Spies are recruited through a variety of methods, including appeals to patriotism, religion, ego or greed. They are given access to sensitive information that they then pass to their handlers.

Industrial Espionage

While competitive intelligence gathering, such as researching websites, publications and patent filings is a valid business practice, industrial espionage attempts to uncover nonpublic information for financial gain or to hurt competitors. The information can include manufacturing processes, methods and techniques; locations; proprietary economic data such as sales and research and development; policies, bids or planning strategies; and confidential customer data.

Disgruntled employees and opportunistic criminals are often the perpetrators of this type of corporate skullduggery. Companies that fail to carefully screen prospective employees or who have minimal security measures in place for their computer systems and portable devices are particularly vulnerable.

The theft of industrial secrets is becoming increasingly common, and the penalties for this type of crime are stiff. Under the Economic Espionage Act of 1996, the government can impose prison time and substantial damages on those who transfer trade secrets to foreign entities.

In the past, it was common for perpetrators to break into a company facility or rummage through paper folders and wastebaskets. Nowadays, more information is gathered through the Internet, where culprits can use software that monitors access to certain data repositories, applications and edge or portable devices. For example, if a laptop is left unattended in an airport baggage carousel or hotel room, hackers can use malware to listen in on conversations and obtain sensitive information.

Military Espionage

Military espionage focuses on gathering intelligence on the activities of a foreign country’s military. It includes HUMINT (human intelligence) and ELINT (electronic intelligence) but is restricted to the actions of a foreign military, and to information that the country considers classified.

During the Civil War both the Union and Confederacy extensively used clandestine activities to gather intelligence. Both the North and South had secret service operatives who acquired information through a variety of methods including military scouts, captured documents, newspapers, intercepted mail, decoded telegrams, and interrogations of prisoners and deserters.

One of the most famous cases of military espionage involves Navy Chief Warrant Officer John Walker, who sold U.S. naval cryptographic material to the Soviets for two decades. Another example is CIA officer Aldrich Ames, who betrayed the United States to the Soviets and Russians for nine years.

A military member who engages in an act of espionage while on duty can be prosecuted under UCMJ Article 104, aiding the enemy or a hostile power and UCMJ Article 106a, espionage. A member of the military can also be charged under the federal Espionage Act under 18 U. S. Code 793, and the various branches have their own espionage statutes in their UCMJ. The Air Force Office of Special Investigations, the Navy NCIS and the Army CI Corps all have separate criminal and counterintelligence units.

Political Espionage

The federal investigation into Donald Trump’s Florida estate has drawn attention to the 1917 Espionage Act—a law that can bring hefty sentences for the unauthorized gathering, possessing or transmitting of sensitive political or military information. It’s the kind of case that a prosecutor might use to nail Julian Assange for his alleged sloppily hoarding classified documents at his private clubs, or Edward Snowden and Chelsea Manning for their unauthorized release of national security information to news organizations.

This kind of spying, known as “political espionage,” is not just illegal under the Espionage Act—it can be treasonous, and its perpetrators face death or imprisonment. This is because political espionage involves collecting and sharing confidential information of a “national interest.”

In the past, spies were mostly targeting government-related targets, such as foreign ministries or the offices of state-owned or sponsored businesses. But in today’s technology-driven world, intelligence services are also seeking commercially valuable data. The most famous example of this type of espionage was the case of Julius and Ethel Rosenberg, who were executed for sharing atomic intelligence secrets with the Soviet Union in 1953.

Because of this legal ambiguity, international law has yet to establish clear guidelines for the conduct of espionage activities, and no global regulation exists for this important state activity. This Comment argues that as cyber technology has transformed espionage into an indistinguishable form of low-level warfare, states must set forth clearer guidelines to address its risks and promote stability among transnational actors.

Economic Espionage

Economic espionage, also known as corporate espionage, describes the unlawful targeting or acquisition of the trade secrets and other sensitive information owned by United States corporations, persons and establishments. These activities may include theft, bribery, blackmail and technological surveillance and can provide foreign entities with vital proprietary economic information at a fraction of the cost of actual research and development, thus resulting in significant economic losses for targeted U.S. companies and their customers.

Industrial espionage is most common in technology-focused industries, where considerable investment and time are expended on research and development. This drives a great deal of competitive pressure to get products to market quickly, which incentivizes competitors to gather information from other companies and individuals, whether lawfully or illegally. This information can take many forms, including engineering designs from automotive or aerospace firms; recipes and formulas from food and beverage or pharmaceutical companies; new robotic manufacturing processes from high-tech manufacturers; pricing lists and customer lists; and even the personal information of employees who have been recruited by competitors to work at their companies.

Many of these crimes can be perpetrated by outsiders who are seeking information for financial gain or to obtain a job at a target company, but they can also be committed by disgruntled or rogue employees looking for a payoff from their employers. In 1996, the United States passed the Economic Espionage Act, which criminalized the theft of information intended to benefit a foreign government, entity or person.