Everyone does it and in any case, there’s nothing anyone can do about it

The Waihopai Valley base, part of Echelon or whatever its current incarnation, has been subject to regular protests for a number of years. In 2008 three protestor got into the compound and – gasp – deflated one of the domes enveloping the GCSB’s (government signals intelligence mob) listening gizmo/dish. Dammit.

The protestors had the temerity to pop the 30m balloon with sickles! Sheesh, that Isiah (2:4) has a bit to answer for.

The Waihopai Three were later acquitted using an interesting defence, but got stuck, as matters progressed via the government’s pursuit of them, with a $NZ1.2 mill “damage bill”.

As the previous link briefly describes, their damages bill is backgrounded by illegal monitoring of New Zealand residents by GCSB, and the subsequent scurrying of the right-wing government to rush legislation through to legalise the illegal activities of the spooks. (This is murky story with a more than a few strands to it).

A darkly humorous gleam resides in reports that one of the three protesters, a priest working in the Solomons, hasn’t had a bank account for fifty years: ‘… he said anyone demanding compensation from him would have to grab him by the ankles and shake him to find any money.’

So, yeah! PrQ has it right. Everyone does do it, but when someone does do something about it – you get Debt! Lots of it.

Thank you for drawing my attention to this quite extraordinary case. Even when endowed with a reasonable amount of cynicism, it is still remarkable how far powerful states will go to advance their interests.

These two statements,

In these circumstances, an Arbitration Court that found in favor of Australia might as well make a public declaration that it is for sale to the highest bidder.

and

Whatever contortions of legal reasoning the Australian lawyers might come up with are unlikely to convince anyone except other lawyers.

seem contradictory. If the Permanent Court of Arbitration is for sale, then that implies that the PCA makes its decisions not on the basis of any law or legal reasoning, but on the basis of corrupt influence. If however Australia’s legal case is persuasive to other lawyers, then that implies that Australia has a legal case considered persuasive by experts in the law – and so a PCA decision based on law would then be in Australia’s favor. “Legal reasoning…unlikely to convince anyone except other lawyers” is like “mathematical reasoning unlikely to convince anyone except other mathematicians.”

In any event, without knowing much about the case or the PCA, an argument for invalidating the treaty seems difficult to make. According to the Vienna Convention on the Law of Treaties, specifically articles 48-52, a treaty can be voided if:
(1) a party was mistaken as to a fact which formed an essential basis of that party’s decision to agree, and circumstances were such as to not put the party on notice as to the possibility of such an error,
(2) a party was induced to agree by fraud,
(3) a party was induced to agree by the corruption of its representative(s),
(4) a party was induced to agree by the coercion of its representative(s),
(5) a party was induced to agree by force or the threat of force that violated the UN Charter,
(6) the treaty conflicts with a peremptory norm of international law, e.g. the norm against genocide.

Beyond the clear problems that text raises for East Timor, there are strong policy reasons not to invalidate the treaty. If espionage by a state were grounds for voiding a treaty, a presumably vast array of treaties could be voidable. This would reduce the reliability of treaties as instruments of int’l law.

Is there a good academic book/ monograph on the ‘five eyes’ relationship?

@9, It is encrypted by SSL, between you and Google. But then Google probably forwards a decrypted copy to the NSA. So, you don’t really want Google to encrypt things for you.

The general reaction to various revelations of spying by the US on its friends and allies, particularly in contexts such as trade negotiations has been “everyone does it” and “in any case, there’s nothing anyone can do about it”. And, as regards direct retaliation against the US, that’s pretty much right.

Saab wins $4.5bn Brazil fighter jet contract

I don’t think that there’s anything that you can only get from the US nowadays.

Yep, not obvious why one cant retaliate against the US. That would only be true if there were no coordination between smaller staates and the US response always an irrational escalation. Sure, the US can do more damage than smaller staates in relative terms, but the absolute welfare loss is rather similar for both sides from hostilities.

Mao – the link between my web browser and Google’s servers is encrypted but that has nothing to do with the encryption of the email itself. As far as a I know — and I’m a web developer — emails are themselves transmitted completely in the clear between different servers until they reach their destination. Any of those boxes might be point-to-point encrypted (though I doubt it, that’s a lot of effort to go to) but anyone who is in the chain between Google’s mail server and the target mail server is going to be able to read the entire message in the clear.

There’s a really bloody simple solution to this (PGP), which has been around for ages, which is just waiting for someone to make a really usable UI and/or package it with desktop mail clients and switch it on by default. But somehow no-one seems to want to bother.

Right, PGP or GPG. But you probably want that gui to be from opensource, because any proprietary software might have an NSA backdoor. Besides, you need to collect the public keys of your correspondents, and that sounds like a pain in the ass.

> you need to collect the public keys of your correspondents, and that sounds like a pain in the ass

Only if you have to do it manually. Like I say, there’s an opening here to do it automagically in a way that users won’t hate. It should be as simple as clicking a link to ‘friend’ someone.

The Raven@21: It’s entirely possible for Google to encrypt emails so that third parties can’t read them in transit while still allowing themselves to read them. E-mail breaks up into two stages, transferring emails between mailservers and then transferring emails from those mailservers to the end-user. If both steps are encrypted that still leaves the spot in between which allows the mailserver (ie Google) to read it. And even if you did complete end-to-end encryption, the fact that Google Mail is a web-based program gives Google the opportunity to read the emails once it gets to the web browser and then send the data back to Google that way. Technically speaking the way web-based mail services work inherently gives many different ways for them to peek in even if they encrypt things to prevent anyone else from looking in.

As for your second point yeah maybe. But even though NSA discourages the wide use of encryption, encryption is in fact widely used, (just not in email) so there’s only so much they can do. Covert penetration would happen, but the NSA does that anyway, so that’s not really much of a threat.

23 – I think it is highly unlikely that the US would deny American manufacturers and designers a market just to spite Saab or Brazil for dissing Boeing. Of course, you can never bet too much against American stupidity: we can all look to DC’s unblemished record over the last thirty, forty years to cure us of that. Still, it is outweighed by American greed (unless the two are in alliance).
There is a reason that members of the business community are starting to communicate their discomfort with the NSA. I find it pretty amusing that the same people who claim that there is nothing to see in Snowden’s revelations (while calling Snowden a traitor whose done immense harm to the the USA) also predicted that the revelations and their affects would all quickly blow over.
I think, or maybe just hope, that this will get even bigger next year.

http://www.washingtonpost.com/world/national-security/amid-nsa-spying-revelations-tech-leaders-call-for-new-restraints-on-agency/2013/10/31/7f280aec-4258-11e3-a751-f032898f2dbc_story.html

It’s easy now to understand why America and its allies are so determined to deny Chinese firms like Huawei any participation in projects that might have national security implications. It’s a clear case of projection (which might of course also be completely justified).

Pete @ 19:

The RM 12 engine for Saab’s Gripen fighter is made by Volvo Aero in partnership with General Electric. 60% of the engine parts are manufactured inside the United States, and presumably those parts need to pass through American export controls when they’re shipped to Sweden for assembly. The two largest aircraft power plant manufacturers are US-based GE and Pratt & Whitney, with the third being UK-based Rolls Royce. Unless you’re buying fighters from Russia or China you’re going to end up with an engine from one of those three. That includes the Embraer Super Tucano, which is made in Brazil with a Pratt & Whitney engine.

The fighter jet just sounds like the typical international supply chain where everyone is shooting himself in the foot by acting hostile (well expect that the thing is built for more serious hostilities, which makes it a special case). Dont know the military ones, in the civilian turbines, youll find (important, high tech) components from all over the world, not just US ones. Similar with the telecommunication infrastructure. Ericsson and Cisco systems are full of Chinese components.

In related news, it appears the NSA has not been able to build a case that domestic surveillance has thwarted any significant attacks.

http://investigations.nbcnews.com/_news/2013/12/20/21975158-nsa-program-stopped-no-terror-attacks-says-white-house-panel-member

faustusnotes, I think people are talking about encrypting on your own computer and then sending an opaque message so that your email provider can’t read it either,. The problem here is keyloggers and such: the NSA (and others) can spy on your own computer. At which point, it is an arms race.

They still need some calculations that will cost too much money to target virtually as they everyone as they do right now even with the backdoor right? That would already be progress.

Getting all the metadata together in advance of need is just silly, anyway. Need-to-know: if noone needs to know, noone should be able to know.

Rather than actually building your own metadata-collecting system all you need to do is get someone inserted into the US one. If the US program were restricted to actually-current threats to the US it’d be a lot less useful to the chinese.

Basic stuff.

John: Well, yes. But that seems to be a problem for espionage, not for treaties. Try substituting “contracts”, and “firms” and see how you go.

But espionage is a common, normal undertaking for states interacting with one another, even for those who are often closely allied with one another. States have publicly declared intelligence agencies, and frequently declare the local head of station to the host government. By contrast, it’s not a common, normal undertaking for firms interacting with one another to commit similar acts (electronic eavesdropping, theft, etc.). So it’s much more problematic to declare espionage grounds for invalidating a treaty.

Katherine: Andrew F, trying to interpret “the law” whilst making reference only to the black letter law of the Vienna Treaty is stupid and pointless. Don’t do it.

Well, I certainly wouldn’t use that comment as a memorandum of law, but as it turns out the plain language of the Vienna Convention is actually pretty telling. Early drafts and discussions of the relevant provisions don’t shed much light, and there are no cases in which a state sued for invalidation of a treaty on the basis of fraud – much less on a legal claim that somehow rested entirely on an allegation of espionage (though I believe a dissenting judge mentioned fraud briefly in one case). A Commentary on the Vienna Convention by Dorr and Schmalenbach is fairly decent. You can likely access relevant pages of it via Google books for free – just search for treaty invalidity.

Oxbird: I have not read the entire thread but it strikes me that the conduct at issue might well fall within “(2) a party was induced to agree by fraud,” so the treaty could be invalidated. It is not a far reach to view as fraud or constructive fraud holding out that one is negotiating without improper access to the strategies of your counter-party.

I agree with you that fraud is probably East Timor’s best chance – but it strikes me as a long shot. The essence of fraud, in almost any system, is a deliberate misrepresentation of facts which were relied upon to enter into an agreement, and I believe that the drafts and discussions of the Vienna Convention indicate a similar understanding. So, there would likely be at least be a case for fraud if Australia represented that no espionage was occurring, and East Timor relied on that representation to enter into the treaty.

But it seems unlikely that Australia did so even constructively, and even if it did, it would be hard for East Timor to prove that this representation was essential to its decision to enter into the treaty.

If Australia had bribed an official of East Timor would you have difficulty finding that there was fraud and that the undisclosed fraud was an inducement to entering into the treaty? And, is planting a bug to gain access to information you should not have any less fraudulent?

Bribed an official to do what? Disclose information? If so, neither that nor planting a bug is sufficient to give rise to fraud, imho. It gives you access to information you shouldn’t have; but it also doesn’t misrepresent facts essential to East Timor’s decision, i.e. it doesn’t have an affect on the ability of East Timor to consent freely to a treaty on the basis of facts known to it and facts represented as known to be accurate by Australia.

Combine the weakness of East Timor’s case given the text of the Vienna Convention, with the compelling policy reasons for an international court NOT to recognize espionage as a valid factual ground for a case to invalidate a treaty, and I don’t give East Timor very good odds.

Anyway, all that said, perhaps East Timor’s real strategy is political (embarrass Australia into agreeing to some modifications to the treaty), and/or perhaps the Permanent Court of Arbitration (about which, as I said, I know very little) has some sort of equitable grounds for decision that could apply here. There’s conceivably a more speculative argument to be made that Australia breached good faith/fair dealing in its approach to the negotiations in such a way as to fundamentally undermine the process of treaty negotiation envisioned implicitly by the Vienna Convention, in which states free from coercion and in good faith deal with one another to come to an agreement. Espionage in this instance grievously reduced East Timor’s ability to negotiate as a free and separate party, for its ability to consult and discuss the matter – an ability essential to being a free party- was undermined.

And there’s something to that argument intuitively. But it’s a creative and substantial departure from the text, there are strong policy reasons not to make such a jump, and even overlooking both those things, it’s not entirely persuasive – sure, espionage gives country A and advantage over country E, but country E nonetheless, in full knowledge of the facts describing the matter of the treaty and of its own free volition, agreed to the treaty. If East Timor thought the treaty itself was not in its interests, it was free to say no; and none of the facts essential to determining that were misrepresented or the subject of a mistake.