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Transnational Intelligence and Surveillance (Doc. 05:06:01 ABSTRACT)
K. A. Taipale, draft prepared for the Global Security Program conference "Beyond Terror: A New Security Agenda," Watson Institute for International Studies, Brown University, Providence , RI, June 3-4, 2005, (Working Paper No. 05:06:01).
‘Beyond Terror: A New Security Agenda’
Transnational Security: Expansion, Erosion, or Transformation of State Power?
Transnational Intelligence and Surveillance:
Security Envelopes, Trusted Systems, and the Panoptic Global Security State
K. A. TAIPALE *
“We need to have a world that is banded with security envelopes, meaning secure environments through which people and cargo can move rapidly, efficiently, and safely without sacrificing security. And in that kind of a world, it would be possible with the proper security vetting, with the proper technology, with the proper travel documents, with the proper tracking of cargo to move relatively freely from point to point all across the globe with the understanding that those within the security envelope we have a high confidence and trust about so that they don't have to be stopped at every point mechanically and re-vetted and rechecked. And those outside the envelope would be those on which we could focus our resources in terms the kind of in-depth analysis and the kind of in-depth vetting that is necessary to make sure bad people can't come in to do bad things.”
Secretary of Homeland Security Michael Chertoff
Center for Strategic and International Studies (May 19, 2005)
New technologies do not determine human fates; instead, they alter the spectrum of potentialities within which people may act.  Force-multiplying destructive technologies and global communications technologies that enable the coordination of far-flung resources (both previously only available to nation state or multinational corporate actors) are rapidly diffusing throughout global society lowering the barrier of entry to, and effectiveness of, direct violent challenges to state interests and power by non-state actors, consequently threatening existing national and global security structures premised on maintaining order through nation state accountability in international affairs. The seed input value of potentially catastrophic outcomes to global security has devolved from nation states (the traditional target of preemptive national or collective security power) to groups of organized but non-state or stateless actors (the traditional target of reactive law enforcement power). These organized groups (and soon perhaps even disaffected individuals) are acquiring the capabilities and competencies to inflict the kind of catastrophic outcomes that can threaten national survival and global security by undermining the public confidence in security arrangements that maintain the economic and political systems of modern democratic states. In simple terms, the threat to national and global security is no longer confined only to belligerent nation states but increasingly includes non-state actors such as ‘international terrorists’ and others pursuing political or economic ends counter to economically globalized nation state interests through potentially catastrophic violent means and not easily subject to any single nation state’s law enforcement power. Further, modern global transportation and communication systems, and the ability to blend in with or recruit from domestic immigrant populations, allow these groups to act within target states and without regard to national borders. As Thomas Friedman states in The World is Flat, 21st century terrorism is the globalization of 20th century terrorism.
In response to these threats, nation states are under political pressure to take a preemptive rather than reactive approach by increasingly focusing instruments and techniques of national security power intelligence and surveillance against them.  Preemption of terrorist acts that can occur at any place and any time requires producing actionable intelligence that is, information useful to anticipate and counter future events before they occur. Since organized terrorism generally requires communications and precursor behaviors by actors who move among the general population and, thus, are likely evidenced by transactions or interactions recorded in databases or otherwise observable, counterterrorism intelligence in part requires surveillance or analysis of communications and transactions to uncover evidence of organization, relationships, or other relevant patterns of behavior indicative or predictive of potential threats. Surveillance (observation of behavior or communications) or dataveillance (analysis of database records) is the observation, collection, or analysis of events or data in order to identify potential threats on which additional security resources or power can then be increasingly selectively focused or exercised, and is inherently a requirement for any strategy based on preemption.
Therefore, directly threatened nation states, particularly the United States, its allies, and other militarily or economically dependent states are developing transnational counterterrorism strategies through inter-governmental agencies and structures premised on global information sharing and the surveillance of international movements of people, goods, and services through cooperating security services and law enforcement agencies. Indeed, in response to the events of 9/11 the United Nations adopted Resolution 1368 calling for increased cooperation between countries to prevent and suppress terrorism. Increasingly such security arrangements are being developed through inter-governmental organizations such as the OECD, the EC, NATO, etc. or multilateral organizations such as the G-8 or Council of Europe in order to harmonize security, monitoring, or surveillance powers. In other cases, the United States is imposing its security requirements on others unilaterally or through coerced bilateral agreements, in some cases in contravention of multilateral agreements already in place.
However, other emergent technological trends, as well as the existing custodial arrangements of communication and transaction infrastructure and data, hamper the ability of any nation state or group of nation states to produce actionable intelligence by engaging in widespread general surveillance wholly on their own. Vast data volumes and limited analytical resources make it impossible to watch everyone, everyplace, or everything. Further, in many cases, the states do not have direct access to the infrastructure or data that needs to be monitored to produce actionable intelligence since the vast majority of relevant communication and transaction infrastructure and data is in private hands. Thus, the states increasingly rely on or compel private actors to monitor, surveil, or analyze data and behaviors beyond the reach or capacity of traditional state surveillance or monitoring power.
This privatization of intelligence and surveillance has two facets first, the states increasingly outsource intelligence or surveillance functions directly, relying on private contractors to carry out previously state functions (for example, using private sector data aggregators to generate threat scores for air passengers), and, second, the states compel private concerns to internalize surveillance and monitoring within their existing business practices (for example, imposing know your customer rules and anti-money laundering reporting in the financial sector, or data retention requirements on communication service providers). The result is that states increasingly rely on private actors to direct where, and on whom, state power is to be focused and exercised that is, to determine who is to be trusted … or not.
This paper examines these trends both the globalization and the privatization of intelligence and surveillance and their impact on state power, social control, and individual freedom. In particular, this paper analyzes how these current trends run counter to the general historic trend in modern democracies in which security power has increasingly been focused in the individual nation state subject to democratic controls and accountability; whether these trends are expanding, eroding, or transforming such power by diffusing its focus throughout a panoptic global security state; and how these trends relate to accountability, transparency, and oversight within a liberal democratic framework.
* Kim Taipale, BA, JD (New York University), MA, EdM, LLM (Columbia University), is the executive director of the Center for Advanced Studies in Science and Technology Policy. Mr. Taipale is also a Senior Fellow at the World Policy Institute where he directs the Program on Law Enforcement and National Security in the Information Age and the Global Information Society Project.
 See generally K. A. Taipale, Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data, 5 Colum. Sci. & Tech. L. Rev. 2 (2003); and K. A. Taipale, Technology, Security, and Privacy: The Fear of Frankenstein, the Mythology of Privacy, and the Lessons of King Ludd, 7 Yale J. L. & Tech. 123; 9 Intl. J. Comm. L. & Pol'y 8 (2004).
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