Протидія шпигунству як парадигма національної безпеки XXI століття

China has been engaging its internal anti-espionage measures for a long time, as China remains a closed state and, in the policy of an “open” society, resorted to strict anti-espionage regimes at all social levels (Eftimiades, 2019). Notably, China raises espionage issues in the information field amidst the international disputes on increased espionage towards China. Thus, following the proceedings on the doubled-down espionage by the United States, China adopted a regulation that assumes that government and party bodies, public and social organisations, and representatives of large business activities are primarily responsible for preventing espionage activities within their structures (lasiello, 2021). Thus, China introduces control at the primary stage of access to state secrets, thus preventing any spies among personnel. The government places great emphasis on the education of both civil servants and the population in the field of countering espionage, as it believes that spies are not narrowed down to individuals who have direct access to state secrets - any active Internet user can become a victim of espionage (Rosicki, 2021).

During the Second World War, Britain implemented the “Careless conversation costs lives” policy, while the USA had a similar campaign known as “Loose lips sink ships” (Kearns, 2022). These initiatives aimed to deter individuals from spreading rumors or truths that could undermine morale or create discord among different population groups. However, with the rise of the information society, such tactics have become less effective. The British Security Service MI5 classifies espionage as a persistent threat to the UK. In the last century, the object of espionage was usually information (state secrets) that concerned state organisations since the goal was to obtain political and military information. In the 21^st century, the target of espionage is information (industrial secrets, commercial secrets) from commercial organisations for their valuable research and know-how. In the modern world, the main methods of intelligence gathering exercised by MI5 can be classified as follows: secret agent sources - an individual who collects and transmits information containing state secrets; direct surveillance (shadowing and/or surveillance of objects); interception of messages (eavesdropping on phone calls or reading electronic messages); electronic surveillance (installation of listening devices in the house, flat, or car of the surveillance object) (Peek, 2012; 2013).

Indonesia is an example of a country with a developed legal system in the context of combating cyber espionage. In 2008, this country enacted legislation addressing cybercrime at the national level, along with regulations on such cyber activities. This is outlined in the Information and Electronic Transactions Law (UU ITE). Article 31 defines the interception of electronic information/electronic documents that belong to another person as illegal. Exceptions are cases when wiretapping is allowed when it occurs during a trial and reveals the commission of a crime (Satria Unggul & Noviandy, 2019).

The opinion of some Polish scientists is of interest, as they propose introducing changes in national legislation that criminalises espionage in Poland. They elaborate on the identity of crimes such as espionage and cyber espionage (cyberterrorism) and do not consider the latter as an espionage method. As arguments, they cite the fact that these offences have different objects of encroachment. In the first case, it is stated (national) security, and in the second - information security (Rosicki, 2021).

Espionage in the realm of innovation is a major concern in the United States. Consequently, the FBI organizes training sessions and creates guidelines for commercial enterprises in Silicon Valley. China poses the most significant threat to the United States in this regard. According to a report from the American CSIS Centre, the United States has closed over 160 espionage cases involving China in the past two decades. Concurrently, American companies have initiated approximately 1 200 lawsuits for intellectual property theft against Chinese entities during the same period (Grubbs, 2019; Korniychuk, 2023). Thus, it is possible to conclude that world leaders also need to regulate cyberspace and counter cyber espionage at the level of international law but to strengthen national security, states themselves need to abandon espionage towards opposing states.

Discussion

When examining espionage as a criminal offence against national security, this study concludes that the objective aspect of espionage, as a crime against national security, does not provide a comprehensive list of methods by which espionage can be carried out. Thus, the factual embodiment of espionage in the real world may change due to information technology advances as a result of using such progress with malicious intent. In contemporary society, it is much easier to become a spy since the methods of espionage are more accessible than in the past centuries. Z. Bederna & T. Szadeczky (2020) confirm the expansion of espionage methods due to the information space, focusing on the insecurity of the internet infected by botnets used to engage in cyber espionage. The methods of espionage mustn't be limited to the scope of information technology capabilities.

The opinion of some Polish scientists is of interest - they propose introducing changes in national legislation that criminalises espionage in Poland. They elaborate on the identity of crimes such as espionage and cyber espionage (cyberterrorism) and do not consider the latter as an espionage method. As arguments, they cite the fact that these offences have differing objects of encroachment. In the first case, it pertains to (national) security, while in the second case, it concerns information security. However, in this article, the author holds the opinion that cyber espionage is espionage committed using cyberspace and other information technologies, but the object of encroachment is still a state secret, i.e., national security. On this occasion, I.V. Diorditsa (2020) provides an interpretation of cyber espionage, delineating several inherent features. As such, cyber espionage is characterised by the following attributes: illegal acts involving covert tracking, collecting, stealing, and transferring of information. The transferred information typically constitutes a state secret and is relayed to an external nation, foreign entity, or their delegates, all within cyberspace. The primary subject of this crime is information containing a state secret. According to I.V. Diorditsa (2020), the object of cyber espionage encompasses external national security, including the preservation of sovereignty integrity (territorial, political, and economic aspects), the maintenance of inviolability and defence capability, and ensuring security in the digital realm, encompassing information and cybernetic space.

E.N. Grubbs (2019) addressed espionage in a new aspect, elaborating on academic espionage. As such, the writer concludes that academic espionage is not a recent issue, but rather one that the US Congress has been diligently addressing. Lawmakers, governmental bodies, and educational institutions are actively assessing whether existing security measures are adequate to safeguard the intellectual property of the United States. E.N. Grubbs believes that the protection of academic institutions in the United States requires more awareness of academic espionage, rather than added security measures. The quantitative and qualitative analysis of statistical data on espionage in the United States confirmed the hypothesis of E.N. Grubbs since more crimes are related to intellectual property rights. Presently, the most critical issue is espionage in the realm of innovation. This is the reason why the FBI conducts training meetings and develops instructions for commercial companies in Silicon Valley to protect copyright and patent rights, which may have industrial secrets. According to the CSIS Centre, American companies have filed about 1,200 intellectual property theft lawsuits against Chinese legal entities, which confirms the threat to the United States from China in the realm of espionage (Mazzocco, 2024).

The conclusion states that the international community needs to develop practices to regulate cyber espionage, and then develop an international legal treaty based on such practices, which would include the responsibility of states for cyber espionage or inaction in the fight against it (Korniychuk, 2023). The anonymity of the user poses challenges in identifying the individual responsible for the offence, as well as in distinguishing between a cyber spy and a cyber intelligence agent. In practice, it is exceedingly difficult to conclusively determine whether the illegal gathering of information occurred within enemy territory, which entails difficulties in qualifying such an act as cyber espionage. Therefore, it is worth defining the boundaries of “digital sovereignty”, which is quite difficult to do due to the popularity of blockchain and VPN technologies.

The thesis that cyber espionage poses new challenges to international law was also confirmed by other scientists. The relevance of the issue of countering espionage, especially cyber espionage, extends beyond the national level and escalates at the international level. R. Buchan and I. Navarrete (2021) discussed the significance of international law in managing cyber espionage, highlighting the destabilizing impact of cyber espionage on international cooperation and the stability of the global economic framework due to its “invisible” nature. Similarly, M. Jala- li (2021) echoes this statement, underscoring the pressing necessity for a universal document to formalize regulations governing espionage, including emerging forms, such as cyber espionage and espionage involving privacy violations. Given that espionage has evolved into a worldwide issue, such a new treaty could delineate instances of both lawful and unlawful espionage.

In addition, using the example of Turkey, T. Eldem (2020) elaborates on the need to define the boundaries of “digital sovereignty”. A similar opinion is expressed by M.A. Mudryak (2020) in his research, claiming that the information space has become the main arena of international clashes, where different-vector national interests of states collide, accompanied by fierce international competition for the use of information warfare. The rapid spread of telecommunication networks, electronic resources, and electronic delivery of information requires the state to develop a strategy to safeguard the information security of private enterprises, which should include the purpose, objectives, and a set of basic measures for its practical implementation. It should be a qualitatively new policy that, through information support, would effectively protect all areas of the economic policy at the national level.

Exploring the necessity of limiting privacy rights to combat espionage and ensure national security is a compelling area of study. D.A. Alba Useche (2021) delves into this topic, particularly focusing on its relevance during the Cold War era. By analysing the cases of the USA and Russia, the author highlights the rapid advancements in surveillance technology, information analysis, and cyberspace utilization in countering cyber espionage. However, this progress has raised concerns regarding infringements on privacy rights in the name of security. Counterespionage methods are influenced by technological and intellectual advancements, as well as its diplomatic culture and practices. Nonetheless, there is a pressing need for global consensus and unified strategies to combat the digital realm of espionage, particularly cyber espionage.

Conclusions

Examination of the notion of espionage and its evolution throughout history concluded that espionage cannot be committed by a citizen of the state against which information is being collected. Such actions committed by a citizen are considered high treason in many states. Additionally, the study discovered that the objective side of espionage does not define an exhaustive list of methods and mechanisms by which espionage can be committed. This circumstance is influenced by the potential for technology advancements to be exploited for nefarious purposes, including being a field of activity or a tool for a spy. Thus, the modern world faces the problem of espionage becoming much more accessible than in the past centuries. In this situation, only preventive measures can serve as effective countering mechanisms. The prevalence of cyber espionage poses new challenges to international law. The most global concern is the complexity of personal identification in the digital world. Thus, in the pursuit of ensuring privacy in a digital society, the global landscape has reached a stage where maintaining anonymity serves as an advantageous factor for perpetrating various crimes, including espionage. Consequently, law enforcement agencies face challenges in identifying individuals, establishing their culpability in criminal activities, and discerning between a cyber spy and a cyber intelligence agent. Therefore, there is a pressing need to establish a clear definition of the term “digital sovereignty”, to determine its scope, methods of security, and responsibility for encroachment. Thus, the international community needs to develop practices to regulate cyber espionage, and then develop an international legal treaty based on such practices, which would include the responsibility of states for cyber espionage or inaction in the fight against it. The findings of this study could serve as valuable resources for enhancing espionage countermeasures within state systems that are currently outdated and ill-equipped to address modern challenges posed by new technological methods of committing espionage offences against national security.

Furthermore, this study has raised new questions that require resolution. There is a need to further research and refine the norms of international law on cyber espionage and propose technical solutions to effectively counter such activities.

References

1. Alba Useche, D.A. (2021). Espionage and Security Agencies: The United States and the Russian Federation. Science and Air Power.

2. Atwood, R. (2019). Combatting Chinese cyber economic espionage on the global stage. (Doctoral dissertation, Utica College, Utica, USA).

3. Bederna, Z., & Szadeczky, T. (2020). Cyber espionage through Botnets. Security Journal, 33, 43-62.

4. Buchan, R., & Navarrete, I. (2021). Cyber espionage and international law. In Research handbook on international law and cyberspace. London: Edward Elgar Publishing.

5. Diorditsa, I.V. (2020). The concept and content of cyberespionage. Scientific Works of the National University “Odesa Law Academy”, 26, 49-55.

6. Early, B.R., & Gartzke, E. (2021). Spying from space: Reconnaissance satellites and interstate disputes. Journal of Conflict Resolution, 65(9), 1551-1575.

7. Eftimiades, N. (2019). On the question of Chinese espionage. The Brown Journal of World Affairs, 26, 125.

8. Eldem, T. (2020). The governance of Turkey's cyberspace: Between cyber security and information security. International Journal of Public Administration, 43(5), 452-465.

9. Grubbs, E.N. (2019). Academic espionage: Striking the balance between open and collaborative universities and protecting national security. North Carolina Journal of Law & Technology, 20(5), 235-265.

10. Lasiello, E. (2021). China arctic cyber espionage. The Cyber Defense Review, 6(3), 121-128.

11. Jalali, M. (2021). Espionage in modern international law and necessity of codification of global provisions. Public Law Studies Quarterly, 51(1), 343-368.

12. Kearns, O. (2022). Forget what you hear: Careless Talk, espionage and ways of listening in on the British secret state. Review of International Studies, 48(2), 301-325.

13. Korniychuk, O.O. (2023). Experience of leading countries in responding to threats to national security in the process of decentralisation of the public management and administration. Scientific Perspectives, 2(32), 96-107.

14. Maican, O.H. (2019). Legal aspects of economic espionage. Society of Juridical and Administrative Sciences, 8(2), 385-392.

15. Mazzocco, I. (2024). Chinese state and private firms. CSIS.

16. Mudryak, M.A. (2020). Separate issues of legal provision of information security of the enterprise in competitive relations: Intelligence and industrial espionage. In Scientific collection “InterConf”: Global and regional aspects of sustainable development (pp. 136-143). Copenhagen, Kyiv: SPC InterConf.

17. Peek, S. (2012). Scientific and technical intelligence in the service of the state interest: Historical aspect. Journal of the Lviv University. International Relations Series, 31, 128-133.

18. Peek, S. (2013). Intelligence activity in the modern world and its priorities. Journal of the Lviv University. Series International Relations, 32, 70-76.

19. Rosicki, R. (2021). State security as exemplified by the offense of espionage under Polish law. RemigiuszRosicki, 3, 4973.

20. Satria Unggul, W.P., & Noviandy, P.E. (2019). Analysist of cyber espionage in international law and Indonesian law. Humanities & Social Sciences Reviews, 7(3), 38-44.

21. Schmitt, N.M. (Ed.). (2017). Tallinn manual 2.0 on the international law applicable to cyber operations. Gambridge: Cambridge University Press.

22. The Budapest Convention and its Protocols. (2000, November).

23. United Nations Convention against Transnational Organized Crime and the Protocols Thereto. (2003, November).

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