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U.S. Using Key Escrow To Steal Secrets?

vlax And comes back again... (207 comments)

Yes, it's pretty hypocritical of the frogs (je suis grenouille, moi, et j'en suis fier), but it's pretty hypocritical of the gringos too, as a pretty perfunctionary check of the literature would reveal.

What makes this different is that for the last 20 years, the US, among others, has been pushing for all manner of global trade rules so that US firms could feel secure in Europe and Asia, and, unsurprisingly, those Europeans and Asians have demanded the same kind of treatment here. A lot of global trade rules can be summarised in one statement: you can't do to foreign companies what you don't do to your own.

Now, back in the Cold War, spying on the Russian or Chinese governments and their interests wasn't seen as any big deal. After all, it's hard to imagine the KGB suing in federal court for it's right to privacy. And of course, the shoe went on the other foot. If the USSR stole some commercial technology from Boeing or IBM, there wasn't any way they could go to market and compete with them. There might be patents, or not, either way the USSR wasn't going to pay any attention to them.

Now we have the odd sight of companies suing foreign governments in their own courts for violating their privacy. After all, civil law in the US recognises companies as persons and accords them rights. If the US subsidiary of Bull-Thompson can show it's been damaged by the NSA snooping on their faxes without a warrant, the law makes no distinction between them and somebody like Apple Computers.

Yes, the NSA spies. That's what they get paid for, but allowing them to spy on behalf of US firms introduces a lot of issues of conflict of interests. The US has agreed, in treaty after treaty, to honour the rights of foreign commercial interests in the USA. Whether or not that's a very good idea is a different issue, those treaties are presently US law.

Unfortunately, US law tolerates the government doing all manner of otherwise illegal things in the name of "national security." The US is nominally forbidden from spying on Canadians, Australians, NZ'ers, and UK citizens (but is well known to have done so on at least a few occasions - Gerhard Bull's case comes to mind) but can spy on Japan or France to their hearts content. EU countries aren't supposed to be allowed to spy on each other. This has lead to the UK asking the US to spy on French and German companies on behalf of British firms. (At least it's fairy credibly rumoured that this happens - it certainly isn't a surprise.)

If the dogma of free trade is to be preserved, you can't use government to spy on your competitors, even foreign ones. The French do certainly do it, and the US does, and in all likelihood every country with a foreign espionage service does it at least sometimes. (Neatly excluding Canada - a country that really doesn't seem to take its economic security too seriously.)

But it is also quite clearly illegal and something that you can sue for. What is to happen if a federal judge subpeonas the CIA to testify about espionage against foreign companies, or the NSA to describe in court its signal intelligence operations? The US recently dropped a case against the owner of the pharmaceuticals factory in Sudan that Clinton bombed last year, after he sued in US federal court. In this case, it was probably because the US didn't actually have any evidence against the guy, but the Justice department claimed that it was better to drop the case than "reveal its espionage sources." Is this a precedent for things to come? If so, the US might as well get out of the commercial espionage business altogether,or else it'll be tied up in court in perpetuity, settling espionage claims.

more than 15 years ago

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