National Security in the New World Order: Government and the Technology of Information

181 Pages·2021·1.811 MB·English

by  Andrea Monti, Raymond Wacks

NATIONAL SECURITY IN THE
NEW WORLD ORDER
This important new book explores contemporary concerns about the
protection of national security. It examines the role, infuence, and impact
of Big Tech on politics, power, and individual rights. The volume considers
the manner in which digital technology and its business models have shaped
public policy and charts its future course.
In this vital text for legislators and policymakers, Andrea Monti and
Raymond Wacks draw on several case studies to analyse the changing
nature of national security and revisit the traditional idea of the sovereignty
of the State. They highlight some of the limitations of the conventional
understanding of public policy, national security, and the rule of law to
reveal the role of digital technology as an enabler as well as discriminator
in governance and social disorder. Further, the chapters in the book explore
the tenuous balance between individual freedom and national security;
the key role of data protection in safeguarding digital data; Big Tech’s
appropriation of national security policy; the debate relating to data-
gathering technologies and encryption; and offers an unsettling answer to
the question ‘what is a leak?’
A stimulating read, this key text will be of immense interest to scholars
of politics, cyberculture, and national security, as well as to policy analysts,
lawyers, and journalists.
Andrea Monti is an Italian lawyer, journalist, and academic, whose expertise
ranges from biotechnology to privacy and high-tech law. He previously
taught Public Order and Security at the Gabriele d’Annunzio, University
of Chieti, Italy, where he is now an Adjunct Professor of Digital Law. Over
the last two years, he has delivered lectures as part of the Italian State Police
training programmes. He has published several papers on bio-information,
computer forensics, technology, and public order, as well as books on
computer hacking. His most recent publications are Protecting Personal
Information: The Right to Privacy Reconsidered (2019), and COVID-19
and Public Policy in the Digital Age (2021), with Raymond Wacks.
Raymond Wacks is Emeritus Professor of Law and Legal Theory at the
University of Hong Kong, China. He is the author of 16 books, several
of which have been translated into more than a dozen languages on legal
philosophy, privacy, and justice. He is also the co-author of fve books,
and editor of ten. His works include Personal Information: Privacy and
the Law; Privacy and Media Freedom; Privacy: A Very Short Introduction;
and Law: A Very Short Introduction. His most recent publications are
Protecting Personal Information: The Right to Privacy Reconsidered
(2019), and COVID-19 and Public Policy in the Digital Age (2021), with
Andrea Monti. The sixth edition of his Understanding Jurisprudence: An
Introduction to Legal Theory was published in 2021, as was The Rule of
Law Under Fire?
NATIONAL SECURITY
IN THE NEW WORLD
ORDER
Government and the Technology of
Information
Andrea Monti and Raymond Wacks
First published 2022
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2022 Andrea Monti and Raymond Wacks
The right of Andrea Monti and Raymond Wacks to be identifed as authors of
this work has been asserted by them in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from the
publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identifcation and explanation without intent
to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record has been requested for this book
ISBN: 978-0-367-40801-5 (hbk)
ISBN: 978-0-367-80971-3 (pbk)
ISBN: 978-0-367-80977-5 (ebk)
DOI: 10.4324/9780367809775
Typeset in Sabon
By Deanta Global Publishing Servies, Chennai, India
Andrea Monti dedicates this book to his family and to the
memory of his mentor, the late Giancarlo Livraghi. He wishes
to thank Hiroshi Miyashita of Chuo University, Andrea
Ortolani of Keio University, Giorgio Colombo of Nagoya
University, Mariarosaria Taddeo of the Oxford Internet
Institute at the University of Oxford, Gianfranco Purpura of the
University of Palermo, Commander Massimilano Dosi of the
Italian Navy, Carlo Disma, analyst at Rivista Italiana Difesa,
and Francesco Di Maio, Head of Corporate Security at ENAV,
the Italian air navigation service provider.
Raymond Wacks is grateful to his wife Penelope for her
tolerance over half a century, and to Archie and Bertie for
occasionally permitting him access to his keyboard.
We are, yet again, grateful to Brinda Sen and Aakash
Chakrabarty of Routledge for their encouragement, assistance,
and patience.
AM
RW

CONTENTS
Preface viii
1 The evolution of national security 1
2 Public policy, national security, and the rule of law 31
3 Public policy, national security, and information 65
4 Technology as disruptor 90
5 The suicide state 121
6 Conclusion: Whither national security? 153
References 157
Index 166
vii
PREFACE
National security is at the heart of contemporary public policy debate. Not
only the conventional domains of intelligence and terrorism, but the econ-
omy, scientifc research, education, and even the COVID-19 pandemic are
in the cross-hairs of national security. In several cases, this extension of the
reach of national security makes sense. In others, however, the concept has
been used to justify government restrictions of fundamental rights. Two
elements whose role in the debate requires closer scrutiny: the positioning
of national security in the theory of power, and the controls on the factors
that facilitate its application. In other words, is national security a purely
political category or should it be accorded legal status? It is also important
to understand the extent to which States are able to exert control over the
increasing presence of the technology of information in the national security
feld.
National security does not ineluctably transcend other social, political,
and economic goods. Furthermore, it is diffcult to weigh competing con-
cepts that belong to different domains; attempting to balance political and
legal interests rarely produces a satisfactory outcome, as their respective
weights are measured according to different standards. The primary issue,
therefore, is to determine whether national security is meant to protect the
State or the citizen. If it is the former, individual rights may be sacrifced to
protect the State, hence rule by law. If the latter, the protection of the citizen
is at the core of national security, hence the rule of law.
This choice is obviously a function of the nature of the State. An authori-
tarian regime is likely to reach a different balance than a democratic one.
But this question is bedevilled and disrupted by the widespread availability
of the technology of information. Governments cannot resist the acquisi-
tion of ‘AI-powered’ pre-emptive policing and the promises of ‘Big Data-
enhanced’ decision-making. At the same time, however, the borders have
dissolved between military and secret service technologies, on the one hand,
and civil society, on the other. Private individuals can easily hide themselves
from the prying eyes of government. They can organise groups of activists
viii
PREFACE
and social unrest at the click of a mouse. They can threaten the economic
order by creating alternative ways to create and exchange value, and unset-
tle fnancial markets. What is rarely taken into account, however, is the role
of the (relatively) few companies that control these technologies and run
them according to their own business needs rather than in the interests of
the public. Defence and law enforcement contractors are not a novelty in the
(national) security business. But what has changed is the leeway they now
enjoy. A private company—we analyse the cases of Adobe and Venezuela,
as well as of Google and Huawei—can paralyse an entire country or disrupt
a multinational business merely by revoking a copyright licence. And this
may occur as a result of a government order. Nothing, however, prevents a
company from deciding unilaterally to interfere in the jurisdiction of gov-
ernment; it happened in the legal battle between Apple and the FBI concern-
ing the cracking of iPhone security to support a continuing investigation.
But there is a subtler and more troubling issue: the direct control that
Big Tech is able to exert over billions of human beings by controlling the
interfaces of the computer programmes made ‘freely’ available to people.
No matter the place, the culture, the educational level, or the economic
circumstances, everybody must behave according to what the interface of a
messaging application or a social networking platform tells them to do. And
they comply. No government, even the most authoritarian, could dream of
achieving this level of conscious and spontaneous acquiescence.
As much as this scenario may resemble the plot of a dystopian novel,
it is not simply because it describes reality, but because governments have
convinced themselves that they could maintain control over their national
security strategy by delegating to Big Tech the design of the operations. This
serious miscalculation is among the errors we attempt to illuminate in the
pages that follow.
ix