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Published online by Cambridge University Press: 29 August 2023
The ethical value of intelligence lies in its crucial role in safeguarding individuals from harm by detecting, locating, and preventing threats. As part of this undertaking, intelligence can include protecting the economic well-being of the political community and its people. Intelligence, however, also entails causing people harm when it violates their vital interests through its operations. The challenge, therefore, is how to reconcile this tension, which Cécile Fabre's recent book Spying through a Glass Darkly does by arguing for the “ongoing and preemptive imposition of defensive harm.” Fabre applies this underlying argument to the specifics of economic espionage to argue that while states, businesses, and individuals do have a general right over their information that prevents others from accessing it, such protections can be forfeited or overridden when there is a potential threat to the fundamental rights of third parties. This essay argues, however, that Fabre's discussion on economic espionage overlooks important additional proportionality and discrimination concerns that need to be accounted for. In addition to the privacy violations it causes, economic espionage can cause harms to people's other vital interests, including their physical and mental well-being and autonomy. Given the complex way in which the economy interlinks with people's lives and society, harms to one economic actor will have repercussions on those secondary economic entities dependent on them, such as workers, buyers, and investors. This, in turn, can produce further harms on other economic actors, causing damages to ripple outward across society.
1 Bellaby, Ross W., The Ethics of Intelligence: A New Framework (Abingdon, U.K.: Routledge, 2014), p. 6CrossRefGoogle Scholar.
2 Fabre, Cécile, Spying through a Glass Darkly: The Ethics of Espionage and Counter-Intelligence (Oxford: Oxford University Press, 2022), p. 29CrossRefGoogle Scholar.
3 Bellaby, Ross W., “Redefining the Security Paradigm to Create an Intelligence Ethic,” Intelligence and National Security 37, no. 6 (2022), pp. 863–73CrossRefGoogle Scholar.
4 Quinlan, Michael, “Just Intelligence: Prolegomena to an Ethical Theory,” Intelligence and National Security 22, no. 1 (2007), pp. 1–13, at p. 7CrossRefGoogle Scholar.
5 Cormac, Rory, “Secret Intelligence and Economic Security: The Exploitation of a Critical Asset in an Increasingly Prominent Sphere,” Intelligence and National Security 29, no. 1 (January 2014), pp. 99–121, at p. 99CrossRefGoogle Scholar.
6 Fabre, Spying through a Glass Darkly, p. 81.
7 Nasheri, Hedieh, Economic Espionage and Industrial Spying (Cambridge, U.K.: Cambridge University Press, 2005), p. 1Google Scholar.
8 Potter, Evan H., ed., introduction to Economic Intelligence & National Security (Montreal: McGill-Queen's University Press, 1998), p. 1CrossRefGoogle Scholar.
9 Stansfield Turner, quoted in Loch K. Johnson, Secret Agencies: U.S. Intelligence in a Hostile World (New Haven, Conn.: Yale University Press, 1998), p. 152.
10 Fabre, Spying through a Glass Darkly, p. 85.
11 Gordon, Joy, “Economic Sanctions, Just War Doctrine, and the ‘Fearful Spectacle of the Civilian Dead,’” CrossCurrents 49, no. 3 (Fall 1999), pp. 387–400, at p. 398Google Scholar. See also Gordon, Joy, “Smart Sanctions Revisited,” Ethics & International Affairs 25, no. 3 (Fall 2011), pp. 315–35CrossRefGoogle Scholar; Gordon, Joy, “A Peaceful, Silent, Deadly Remedy: The Ethics of Economic Sanctions,” Ethics & International Affairs 13 (March 1999), pp. 123–42CrossRefGoogle Scholar; and Ellis, Elizabeth, “The Ethics of Economic Sanctions: Why Just War Theory Is Not the Answer,” Res Publica 27, no. 3 (2021), pp. 409–26CrossRefGoogle Scholar.
12 Melanie Reid, “A Comparative Approach to Economic Espionage: Is Any Nation Effectively Dealing with this Global Threat?,” University of Miami Law Review 70, no. 3 (Spring 2016), pp. 761–63; Brian Champion, “A Review of Selected Cases of Industrial Espionage and Economic Spying, 1568–1945,” Intelligence and National Security 13, no. 2 (Summer 1998), pp. 123–43, at p. 124; Mark E. A. Danielson, “Economic Espionage: A Framework for a Workable Solution,” Minnesota Journal of Law, Science & Technology 10, no. 2 (Spring 2009), at p. 504; Chris Carr and Larry Gorman, “The Revictimization of Companies by the Stock Market Who Report Trade Secret Theft Under the Economic Espionage Act,” Business Lawyer 57, no. 1 (November 2001), pp. 25–53, at pp. 26, 30; Karen Sepura, “Economic Espionage: The Front Line of a New World Economic War,” Syracuse Journal of International Law and Commerce 26, no. 1 (Fall 1998), pp. 137–38; and Potter, introduction to Economic Intelligence & National Security, p. 1.
13 Distinctions can be made between “costs,” “damages,” “harm,” and “wrongful harm.” For the purpose of this essay, harm refers to violations of people's vital interests, which can be detailed separately according to whether it then becomes a wrongful harm inflicted unjustly or wrongfully. See Joel Feinberg, The Moral Limits of the Criminal Law, vol. 1, Harm to Others (Oxford: Oxford University Press, 1984), p. 37. Costs and damages are more widely conceived and can include all types of losses inflicted, which, in turn, may or may not be harms.
14 Quinlan, “Just Intelligence,” p. 1.
15 David Omand, “Reflections on Secret Intelligence,” in Peter Hennessy (ed.), The New Protective State: Government, Intelligence and Terrorism (London: Continuum, 2007), at p. 116.
16 Quinlan, “Just Intelligence,” p. 1; David Omand, “The Dilemmas of Using Secret Intelligence for Public Security,” in Hennessy, The New Protective State, pp. 142–69, at p. 148; and Michael Herman, “Ethics and Intelligence after September 2001,” Intelligence and National Security 19, no. 2 (Summer 2004), pp. 342–58, at p. 342.
17 Feinberg, The Moral Limits of the Criminal Law, p. 62.
18 Martha C. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, U.K.: Cambridge University Press, 2000), p. 73.
19 Quinlan, “Just Intelligence,” p. 2; Bellaby, The Ethics of Intelligence, p. 24; Angela Gendron, “Just War, Just Intelligence: An Ethical Framework for Foreign Espionage,” International Journal of Intelligence and CounterIntelligence 18, no. 3 (2005), pp. 398–434; Kevin Macnish, “Just Surveillance? Towards a Normative Theory of Surveillance,” Surveillance & Society 12, no. 1 (March 2014), pp. 142–53; David Omand and Mark Phythian, “Ethics and Intelligence: A Debate,” International Journal of Intelligence and CounterIntelligence 26, no. 1 (2013), pp. 38–63; and Omand, “The Dilemmas of Using Secret Intelligence for Public Security,” p. 157.
20 Fabre, Spying through a Glass Darkly, p. 81.
21 Fabre discusses this right to defend others more extensively in other works, arguing that the victim's fundamental interest in surviving an attack is “protected by a prima facie power to transfer that right to a third party . . . to claim otherwise is to impose an arbitrary restriction on V's [the victim's] ability to promote this fundamental interest of hers.” The duty created not only prevents violating an individual's right to life but also actively promotes the avoidance by others of violating that right and allows defenders to intervene when appropriate. See Cécile Fabre, Cosmopolitan War (Oxford: Oxford University Press, 2012), p. 63.
22 See Danielson, “Economic Espionage,” p. 503; and Fabre, Spying through a Glass Darkly, p. 72.
23 Fabre, Spying through a Glass Darkly, p. 73.
24 Bellaby, The Ethics of Intelligence, p. 23.
25 Fabre, Spying through a Glass Darkly, p. 77.
26 Ibid., p. 83.
27 See Bellaby, The Ethics of Intelligence; and Ross W. Bellaby, “Justifying Cyber-Intelligence?,” Journal of Military Ethics 15, no. 4 (2016), pp. 299–319.
28 Fabre, Spying through a Glass Darkly, p. 83.
29 See Nussbaum, Women and Human Development; and Timothy Weidel, “Moving towards a Capability for Meaningful Labor,” Journal of Human Development and Capabilities 19, no. 1 (2018), pp. 70–88.
30 International Committee of the Red Cross, “The Geneva Conventions of August 12, 1949”; and Art. 13, “Protection of Civilian Population,” in Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),” §2, June 8, 1977; Michael S. Moore, Placing Blame: A Theory of Criminal Law (Oxford: Oxford University Press, 2010), p. 87.
31 Thomas Nagel, The View from Nowhere (Oxford: Oxford University Press, 1986), p. 162.
32 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 2000), p. 145.
33 Fabre, Spying through a Glass Darkly, p. 81.
34 Ibid., pp. 19–20. See also p. 30.
35 Ibid., p. 20.
36 Ibid., p. 82.
37 Ibid., p. 76.
38 See, for example, Jordan T. Camp and Christina Heatherton, eds., Policing the Planet: Why the Policing Crisis Led to Black Lives Matter (London: Verso Books, 2016); David A. Harris, “‘Driving while Black’ and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops,” Journal of Criminal Law and Criminology 87, no. 2 (1997), pp. 544–82; Randall Kennedy, Race, Crime, and the Law (New York: Patheon, 1997); Annabelle Lever, “Why Racial Profiling Is Hard to Justify: A Response to Risse and Zeckhauser,” Philosophy & Public Affairs 33, no. 1 (January 2005), pp. 94–110; Matthew Robinson, “The Construction and Reinforcement of Myths of Race and Crime,” Journal of Contemporary Criminal Justice 16, no. 2 (May 2000), pp. 133–56; Santiago Lago, David Cantarero, Berta Rivera, Marta Pascual, Carla Blázquez-Fernández, Bruno Casal, and Francisco Reyes, “Socioeconomic Status, Health Inequalities and Non-Communicable Diseases: A Systematic Review,” Journal of Public Health 26 (February 2018), pp. 1–14; and Gerry McCartney, Chik Collins, and Mhairi Mackenzie, “What (or Who) Causes Health Inequalities: Theories, Evidence and Implications?,” Health Policy 113, no. 3 (December 2013), pp. 221–27.
39 See Carr and Gorman, “The Revictimization of Companies by the Stock Market Who Report Trade Secret Theft Under the Economic Espionage Act,” p. 27.
40 Fabre, Spying through a Glass Darkly, p. 82.
41 Ibid., p. 82.
42 Julien Le Roux, Béla Szörfi, and Marco Weißler, “How Higher Oil Prices Could Affect Euro Area Potential Output,” Economic Bulletin Boxes 5 (2022), European Central Bank, pp. 1–105; and World Bank Group Publications, “Russia's Invasion of Ukraine: Implications for Energy Markets and Activity,” Global Economic Prospects (June 2022).
43 Christine Liddell and Chris Morris, “Fuel Poverty and Human Health: A Review of Recent Evidence,” Energy Policy 38, no. 6 (June 2010), pp. 2987–97; Marmot Review Team, The Health Impacts of Cold Homes and Fuel Poverty (London: Friends of the Earth, 2011), www.instituteofhealthequity.org/resources-reports/the-health-impacts-of-cold-homes-and-fuel-poverty/the-health-impacts-of-cold-homes-and-fuel-poverty.pdf; Alice Lee, Ian Sinha, Tammy Boyce, Jessica Allen, and Peter Goldblatt, Fuel Poverty, Cold Homes and Health Inequalities in the UK (London: Institute of Health Equity, 2022), www.instituteofhealthequity.org/resources-reports/fuel-poverty-cold-homes-and-health-inequalities-in-the-uk/read-the-report.pdf; and Yiming Xiao, Han Wu, Guohua Wang, and Shangrui Wang, “The Relationship between Energy Poverty and Individual Development: Exploring the Serial Mediating Effects of Learning Behavior and Health Condition,” International Journal of Environmental Research and Public Health 18, no. 16 (August 2021), pp. 1–14.
44 Green could decide to restrict oil to Blue, Red, or both, but whether Green's actions are justified or not is a separate ethical debate. Interesting discussions on whether Green necessarily has to offer oil or whether there is an expectation to have a certain amount of access to a fundamental resource in the international economic system are outside the scope of this essay, as the focus here is on whether the actions of Blue are ethically justified when it will knowingly and necessarily cause critical harm to Red through its intervention.
45 Judith Jarvis Thomson, “Turning the Trolley,” Philosophy & Public Affairs 36, no. 4 (Fall 2008), pp. 359–74.
46 Danielson, “Economic Espionage,” p. 505.
47 Johnson, Secret Agencies, p. 153.
48 Nasheri, Economic Espionage and Industrial Spying, p. 21.
49 Ibid., p. 22.
50 Brenda I. Rowe, “Transnational State-Sponsored Cyber Economic Espionage: A Legal Quagmire,” Security Journal 33 (March 2020), pp. 63–82, at p. 64.
51 Operation Aurora, Council on Foreign Relations, January 2010, available at www.cfr.org/cyber-operations/operation-aurora. Also see Jothy Rosenberg, “Security in Embedded Systems,” chap. 6 in Augusto Vega, Pradip Bose, and Alper Buyuktosunoglu, Rugged Embedded Systems: Computing in Harsh Environments (Cambridge, Mass.: Morgan Kauffman / Elselvier, 2017).
52 Carr and Gorman, “The Revictimization of Companies by the Stock Market Who Report Trade Secret Theft Under the Economic Espionage Act,” pp. 27–28.
53 PricewaterhouseCoopers, The Scale and Impact of Industrial Espionage and Theft of Trade Secrets through Cyber (Luxembourg: Publications Office of the European Union, 2018), p. 28 (boldface removed).
54 Nasheri, Economic Espionage and Industrial Spying, p. 58; and Champion, “A Review of Selected Cases of Industrial Espionage and Economic Spying, 1568–1945,” p. 124.
55 Hosuk Lee-Makiyama, Stealing Thunder: Cloud, IoT and 5G Will Change the Strategic Paradigm for Protecting European Commercial Interests. Will Cyber Espionage Be Allowed to Hold Europe Back in the Global Race for Industrial Competitiveness? (ECIPE Occasional Paper No. 2/18, European Centre for International Political Economy, 2018), ecipe.org/publications/stealing-thunder/?chapter=all.
56 This, for example, happened in the industrial espionage tried in the Gillette v. Davis case in 1997, where Davis leaked extensive trade secrets to competitors that could have represented a fatal blow to Gillette, as the company had ploughed $750 million into development and if it did not achieve the return, it would have failed. See Mark Maremont and Joseph Pereira, “Gillette Engineer Indicted for Stealing Trade Secrets,” Wall Street Journal, September 26, 1997, www.wsj.com/articles/SB875205465477700500.
57 Thomson, “Turning the Trolley”; and Helen Frowe, “Killing John to Save Mary: A Defense of the Moral Distinction between Killing and Letting Die,” in Joseph Keim Campbell, Michael O'Rourke, and Harry S. Silverstein (eds.), Action, Ethics and Responsibility (Cambridge, Mass.: MIT Press, 2010), pp. 47–66; and Philippa Foot, Moral Dilemmas and Other Topics in Moral Philosophy (Oxford: Oxford University Press, 2002), pp. 78–87.
58 Danielson, “Economic Espionage,” p. 507.
59 Rowe, “Transnational State-Sponsored Cyber Economic Espionage,” p. 65.
