Problematising Intelligence Studies: Towards A New Research Agenda 2021058335, 2021058336, 9781032071206, 9781032071213, 9781003205463

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Routledge New Intelligence Studies

PROBLEMATISING INTELLIGENCE STUDIES TOWARDS A NEW RESEARCH AGENDA Edited by Hager Ben Jaffel and Sebastian Larsson

Problematising Intelligence Studies

This book offers a new research agenda for intelligence studies in contemporary times. In contrast to Intelligence Studies (IS), whose aim has largely been to improve the performance of national security services and assist in policy making, this book takes the investigation of the new professionals and everyday practices of intelligence as the immediate point of departure. Starting from the observation that intelligence today is increasingly about counter-terrorism, crime control, surveillance, and other security-related issues, this book adopts a transdisciplinary approach for studying the shifting logics of intelligence, how it has come to involve an expanding number of empirical sites, such as the police, local community, prison and the Internet, as well as a corresponding multiplicity of new actors in these domains. Shifting the focus away from traditional spies and AngloAmerican intelligence services, this book addresses the transformations of contemporary intelligence through empirically detailed and theoretically innovative analyses, making a key contribution to existing scholarship. This book will be of much interest to students of intelligence studies, critical security studies, foreign policy, and International Relations. Hager Ben Jaffel is a Research Associate at the National Center for Scientific Research (CNRS), Paris, France. Sebastian Larsson is an Associate Senior Lecturer in War Studies at the Swedish Defence University, Sweden.

Routledge New Intelligence Studies Series Editors: Hager Ben Jaffel, National Center for Scientific Research, France Sebastian Larsson, Swedish Defence University, Sweden

This book series offers a comprehensive and innovative account of contemporary intelligence. It gathers scholarship that takes the study of intelligence professionals and practices as the point of departure, and investigates its current configuration as a heterogeneous practice, overlapping with surveillance, counter-terrorism, and broader definitions of security. In doing so, the series provides a renewed understanding of intelligence that conceptually and empirically challenges Intelligence Studies’ traditional ontological and epistemological foundations. Editorial Advisory Board: Didier Bigo, Sciences-Po Paris, France Claudia Aradau, King’s College London, UK Jef Huysmans, Queen Mary University of London, UK Karen Petersen, University of Copenhagen, Denmark Problematising Intelligence Studies Towards a New Research Agenda Edited by Hager Ben Jaffel and Sebastian Larsson For more information about this series, please visit: https://www.routledge.com/ Routledge-New-Intelligence-Studies/book-series/RNIS

Problematising Intelligence Studies Towards a New Research Agenda

Edited by Hager Ben Jaffel and Sebastian Larsson

First published 2022 by Routledge 4 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 selection and editorial matter, Hager Ben Jaffel and Sebastian Larsson; individual chapters, the contributors The right of Hager Ben Jaffel and Sebastian Larsson to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted 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 identification and explanation without intent to infringe. Library of Congress Cataloguing-in-Publication Data Names: Ben Jaffel, Hager, editor. | Larsson, Sebastian, 1989- editor. Title: Problematising intelligence studies : towards a new research agenda / Edited by Hager Ben Jaffel and Sebastian Larsson. Description: Abingdon, Oxon ; New York, NY : Routledge, 2022. | Series: Routledge new intelligence studies | Includes bibliographical references and index. | Identifiers: LCCN 2021058335 (print) | LCCN 2021058336 (ebook) | ISBN 9781032071206 (hardback) | ISBN 9781032071213 (paperback) | ISBN 9781003205463 (ebook) Subjects: LCSH: Intelligence service‐‐Research‐‐Cross-cultural studies. | National security‐‐Research‐‐Cross‐cultural studies. Classification: LCC JF1525.I6 P77 2022 (print) | LCC JF1525.I6 (ebook) | DDC 327.12‐‐dc23/eng/20220412 LC record available at https://lccn.loc.gov/2021058335 LC ebook record available at https://lccn.loc.gov/2021058336 ISBN: 978-1-032-07120-6 (hbk) ISBN: 978-1-032-07121-3 (pbk) ISBN: 978-1-003-20546-3 (ebk) DOI: 10.4324/9781003205463 Typeset in Times New Roman by MPS Limited, Dehradun

Contents

List of contributors

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PART I

Reconstructing the Object of Intelligence 1 Introduction: What’s the Problem with Intelligence Studies? Outlining a New Research Agenda on Contemporary Intelligence

1

3

HA GER B EN JA F FEL AN D SE BAS T I AN L AR S S ON

2 Towards a Reflexive Study of Intelligence Accountability

30

BER NA R DINO L EO N - R EY ES

3 Tracing Pre-emptive Intelligence-Led Policing (ILP): Immigration, Classification Struggles, and the Expansion of Intelligence Logics in British Policing

48

LIA M M CVA Y

PART II

The Practical Transformations of Contemporary Intelligence 4 Citizen-Led Intelligence Gathering under UK’s Prevent Duty

71

73

A MN A KA LE EM

5 Prison Intelligence in France: An Empirical Investigation of the Emergence of Counterradicalisation Professionals DA VID SC HEE R

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vi Contents

6 Manufacturing Intelligence: Police and Intelligence Services in Germany

114

JEA N-PAUL HA N ON

7 Transversal Practices of Everyday Intelligence Work in New Zealand: Transnationalism, Commercialism, Diplomacy

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DA M IEN R O G ER S

8 The Techno-Legal Boundaries of Intelligence: NSA and FRA’s Collaborations in Transatlantic Mass Surveillance

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SEBA STIA N L AR S SO N

PART III

Conceptual Reconsiderations of Intelligence 9 Regulating the Internet in Times of Mass Surveillance: A Universal Global Space with Universal Human Rights?

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A LVINA HO FF M A N N

10 After Cambridge Analytica: Rethinking Surveillance in the Age of (Com)Modification

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HÅ VA R D M A R K U SS E N

11 Violence Performed in Secret by State Agents: For an Alternative Problematisation of Intelligence Studies

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DIDIER B IG O

PART IV

Conclusion

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12 Conclusion: Towards New Intelligence Studies

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HA GER B EN JA F FEL A N D S EB AS T I AN L ARS S ON

Index

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Contributors

Didier Bigo (ORCID: 0000-0002-1908-6532) is a University Professor of Sociology at Sciences Po Paris, France, and specialises in International Political Sociology. He is an Associate Researcher at CERI where he leads the French team of the GUARDINT programme on the oversight of secret services. In addition, he is a Research Professor at the Department of War Studies, King’s College London, UK. He is also the director of the Centre for Conflict, Freedom and Security Studies (CECL) and co-editor of the journal Cultures and Conflicts as well as coeditor of the bi-annual journal Political Anthropological Research on International Social Sciences (PARISS). His publications include ‘Adjusting a Bourdieusian Approach to the Study of Transnational Fields’ (in Bernhard et al. 2020), Data Politics: Worlds, Subjects, Rights, with Engin Isin and Evelyn Ruppert (Routledge, 2020), and ‘Shared Secrecy in a Digital Age and a Transnational World’ (Intelligence and National Security, 2019). Jean-Paul Hanon (ORCID: 0000-0001-9855-8536) is a graduate from the French Military Academy of Saint-Cyr, the Staff College, and the Higher Military Education for Sciences and Techniques Institute. He is currently an Associate Professor at the French Military Academy and holder of the ‘Agrégation’. He headed the Department of International Relations at the Academy Research Centre (CREC Saint-Cyr) until 2017. He also taught defence and security policies and strategic thought at Sciences Po Paris from 1998 to 2014. His research concerns the cooperation processes between military forces, police agencies, and intelligence services, as well as intelligence oversight. Alvina Hoffmann (ORCID: 0000-0002-0728-3467) is a Lecturer in International Relations at the Department of War Studies at King’s College London. Her interdisciplinary research in International Political Sociology examines human rights, democracy, authorisation and the figure of the spokesperson. She received her PhD in International Relations from the

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Contributors

Department of War Studies, King’s College London. Her research interests are in social and political theory, socio-legal studies, as well as biographical methods. She uses these approaches to study dynamics of symbolic power and the social worlds of human rights law, expertise and claims. Her research has been published in International Political Sociology and the Cambridge Review of International Affairs. Hager Ben Jaffel is a Research Associate at the National Center for Scientific Research, France (CNRS), and holds a PhD in International Relations from King’s College London. Her research focuses on the sociology of intelligence with a particular focus on its relationships with law enforcement and politics. She initiated and leads a collaborative project with Dr. Sebastian Larsson to build a new research agenda on contemporary intelligence aimed at reformulating empirical and conceptual debates on intelligence. She is the co-editor of the forthcoming New Intelligence Studies series on Routledge. Recent publications include ‘Towards Critical Approaches to Intelligence as a Social Phenomenon’ with Alvina Hoffmann, Oliver Kearns, and Sebastian Larsson (International Political Sociology, 2020), and Anglo-European Intelligence Cooperation: Britain in Europe and Europe in Britain (Routledge, 2019). Amna Kaleem (ORCID: 0000-0002-5774-1016) is a Doctoral Researcher in the Department of Politics and International Relations at the University of Sheffield, UK. Her research focuses on the British government’s countering violent extremism (CVE) policy Prevent Strategy and its impact on the relationship between the state and citizens. She is interested in exploring the securitisation of civic spaces and interactions under CVE policy frameworks. She is on the editorial board of the peer-reviewed journal Global Policy: Next Generation that showcases research by doctoral and early career researchers. Sebastian Larsson is an Associate Senior Lecturer in War Studies at the Swedish Defence University. He obtained his PhD in War Studies from King’s College London. His research concerns the social dimensions of security, war, intelligence, and technology. Larsson specialises in sociological approaches and critical theory. He is the co-editor together with Dr. Hager Ben Jaffel of the forthcoming New Intelligence Studies series on Routledge. Publications include ‘Towards Critical Approaches to Intelligence as a Social Phenomenon’ co-authored with Hager Ben Jaffel, Alvina Hoffmann, and Oliver Kearns (International Political Sociology, 2020), ‘The Civil Paradox: Swedish Arms Production and Export and the Role of Emerging Technologies’ (International Journal of Migration and Border Studies, 2020), ‘The European Security Industry: Technocratic Politics, Internal Security Cooperation, and the Emergence of Military R&D in the EU’ (in Routledge Handbook of Critical European Studies, 2020), and Nordic Societal Security: Convergence and Divergence (Routledge, 2020) co-edited with Mark Rhinard.

Contributors

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Håvard Markussen (ORCID: 0000-0002-9676-9193) is a Doctoral Researcher in Political Science at the Swedish Defence University. His research engages with shifts in contemporary mass surveillance and intelligence, and examines the influence of big tech on state security. Liam McVay (ORCID: 0000-0003-0022-7216) is a Doctoral Researcher in the Department of War Studies at King’s College London, UK. His research centres around the proliferation and daily practice of intelligence in British policing. Other areas of his research explore colonial intelligence practices and African intelligence and security, having formerly coordinated the Network on Intelligence and Security Practices in African Countries (NISPAC) project at the University of Glasgow. Bernardino Leon Reyes is a PhD candidate and a Teaching Associate at Sciences Po Paris in France and Researcher for GUARDINT. He holds an MSc in International Relations Theory from the London School of Economics, and an MSc in Politics, Violence, and Crime from University College London. His research interests revolve around surveillance, democracy, and inequality. His research has been funded by the La Caixa Foundation and by the Agence nationale de la recherche (ANR). Damien Rogers (ORCID: 0000-0002-6312-4524) is a Senior Lecturer in Politics and International Relations within the School for People, Environment, and Planning at Massey University, New Zealand. Rogers is the author of Postinternationalism and Small Arms Control: Theory, Politics, Security (Ashgate, 2009) and Law, Politics and the Limits of Prosecuting Mass Atrocity (Palgrave McMillan, 2017). He is currently editing a major reference work on human rights in war and has published articles and book chapters on New Zealand intelligence and security. Before entering the academy, Rogers spent nearly a decade working within New Zealand’s intelligence community, including at the Government Communications Security Bureau, Ministry of Defence, New Zealand Defence Force, and the Border Security Group of Immigration New Zealand. David Scheer (ORCID: 0000-0003-2770-4254) holds a PhD in criminology and is a Researcher at the Centre lillois de recherches sociologiques et économiques (CLERSE-CNRS), France, and at the National Institute of Criminalistics and Criminology (NICC) in Belgium. His work is devoted to the analysis of contemporary transformations of the prison institution, focusing on juvenile prisons, prison architecture, and the treatment of violent extremisms in prison. He recently published the book La prison: Réalités et paradoxes with Camille Lancelevée (Presses Universitaires Blaise Pascal, 2019). He is developing a research programme on the

x Contributors diffusion of intelligence logics in public institutions in the face of violent extremisms. He has published, with Gilles Chantraine, ‘Performing the Enemy? No-Risk Logic and the Assessment of Prisoners in ‘Radicalization Assessment Units’ in French Prisons’ (Punishment and Society, 2020) and ‘Surveillance, Radicalization, and Prison Change SelfAnalysis of an Ethnographic Survey Under Tension’ (Journal of Contemporary Ethnography, 2021).

Part I

Reconstructing the Object of Intelligence

1

Introduction: What’s the Problem with Intelligence Studies? Outlining a New Research Agenda on Contemporary Intelligence Hager Ben Jaffel and Sebastian Larsson

Introduction 1 ‘How everything became intelligence and intelligence became the everyday’ neatly sums up the transformations of intelligence in a post-Cold War and post-11 September 2001 context. In recent decades, intelligence has undergone social, political, and technical changes, and has become an inescapable dimension of the everyday. The ‘everyday’ dimension of modern intelligence refers here not only to the set of activities carried out by professionals of intelligence on a daily, if not routine, basis but also to our experiences of encountering intelligence in our everyday lives; for instance, when encrypting communications, refusing applications to trace our mobile devices and computers, when subjected to facial recognition at the airport, caught by CCTV cameras set by algorithms to detect specific ‘behavioural patterns’, or when apprehended on the street by a police officer. In our cities, police and intelligence services conduct counter-terrorism operations into ‘suspected’ Muslim communities, and users of public transportation are frequently reminded to report anyone or anything ‘suspicious’. In short, our ways of life, our means of communication, our travels, jobs, leisurely activities, indeed even the colour of our skin can and often do become ‘sources’ of intelligence. Intelligence services have themselves been deeply involved in this diffusion of intelligence gathering into everyday spheres of human activity. As revealed by whistleblower and former contractor of the US National Security Agency (NSA) Edward Snowden in June of 2013, intelligence services have for long been conducting mass surveillance and collection of private communication data in our everyday digital environments in the name of national security, counter-terrorism, and crime prevention. The secret documents leaked by Snowden to The Washington Post and The Guardian revealed details about the enormous scale and reach of the US global surveillance programme and how the NSA has been systematically collecting emails, phone records and calls, text messages, social media posts, and chat logs in order to capture the online activity of individuals from around the world, ranging from high-level state officials to ‘ordinary’ citizens. Much of DOI: 10.4324/9781003205463-2

4 Hager Ben Jaffel and Sebastian Larsson NSA’s surveillance has been carried out in direct collaboration with foreign services such as the UK’s GCHQ or the German Bundesnachrichtendienst (BND), and some programmes have relied heavily on commercial partnerships with Internet and telecommunications providers and companies such as Google, Facebook, Microsoft, Apple, and Yahoo (MacAskill and Dance 2013, BBC News 2014). Snowden’s disclosures have, in turn, created a concern among legal and parliamentary actors to monitor, and restrict, intelligence activities while Internet users have become increasingly aware, and wary, of intrusive technologies deployed by intelligence services online. These empirical examples, however mundane or extraordinary they may be, indicate a fundamental shift towards a contemporary form of intelligence: to people and practices that are not necessarily, or only, about intelligence services and their usual enemies. The transition from Cold War concerns – geopolitical stakes, state secrets, spies, and double agents – to a broadening range of emerging ‘problems’ and to new security legislation has given rise to a new ‘problematisation’ of intelligence. No longer simply about espionage and national security or about strategic information gathering to inform military strategy and foreign policymaking, intelligence has diversified and become increasingly connected to, and understood as, surveillance, policing, counter-terrorism, population management, border checks, communications monitoring, and more. It has indeed spread out to a growing number of unconventional sites. Localised spaces of intelligence activity, which are not immediately seen as such, have emerged in prisons, banks, and hospital environments, which increasingly rely on intelligencedriven technologies to monitor and trace deviances in flows and conducts. The scope of contemporary ‘targets’ – even for the intelligence services themselves – has similarly expanded from state secrets to cover all kinds of individuals, groups, and mobilities deemed ‘out of the ordinary’ or potentially threatening. Examples include inmates, terrorist suspects, ‘irregular’ money flows, and ‘illegal’ immigration, to name but a few. Despite the drastic social, political, and technical transformations of intelligence in recent decades, no currently existing book has seriously considered its current actor make-up, practical logic and implications, or transversal connections to different everyday sites. This book, however, takes seriously the reformulation of the intelligence problematisation, including the dispersal of intelligence as a practice and set of actors and technologies across an ever-increasing number of social contexts and empirical areas, and how this has affected the involved agents and institutions as well as their daily routines and relationships. In doing so, this book not only presents original empirical findings and theoretical insights, but also makes a key contribution to an emerging research agenda that takes a fundamentally new, transdisciplinary, and practice-oriented look at contemporary intelligence and its effects. Our investigation into intelligence prompts the following key questions: who and what make up intelligence today? What does it do? Whom does it

What’s the Problem with IS? 5 affect and how? To address them, the chapters in this book explore intelligence from the perspective of its people and their everyday practices; or, if you will, the ‘social life’ of contemporary intelligence (Jeandesboz 2016). The following section will explain what we mean by this in an analytical sense, before outlining, in the two sections after that, the book’s multidisciplinary strategy and its central contribution to scholarship on intelligence.

The ‘Social Life’ of the Intelligence Practice The social evolution of intelligence outside its dedicated government agencies and services in recent decades has had the effect of increasing the number of professions and professionals entangled with intelligence. In a recent article, the changing characteristics of intelligence have been conceptualised as taking shape in, and shaping, a ‘field’, defined as a heterogeneous social space maintained by a variety of actors who all have a stake in intelligence, and whose relations reframe its core meaning and practical logic (Ben Jaffel et al. 2020). Herein, the specialisations and dispositions of those who ‘do’ intelligence have multiplied and shifted from spies and military strategists to police officers, data analysts, IT and communications specialists, border guards, prison guards, and others. In addition, more and more ‘unprofessionals of security’ (Ragazzi 2017) – be they ordinary citizens, nurses, or teachers – are now increasingly obliged to become actors of intelligence themselves by, for instance, reporting ‘unusual’ behaviour or incidents (Petersen and Tjalve 2018). At the same time, the field includes professionals who are not immediately seen as ‘doing’ intelligence, yet interface with it when they come to define, contest, resist, monitor, or control it. The Snowden revelations as well as the regulation of European intelligence and security cooperation in the postBrexit world have shown how political elites, privacy groups, legislators, parliamentarians, and oversight bodies now all have a say when it comes to the legitimacy and definition of intelligence cooperation, mass surveillance, and counter-terrorism (Ben Jaffel 2021). Legal actions have also brought to light the increasingly central role of lawyers and prosecutors with expertise in national security matters challenging the immunity of intelligence services in cases of privacy breach, extraordinary renditions, and torture (Baldaccini and Guild 2007, Guild 2007, 2008). The expansion of intelligence has not only reconfigured its actors but also the means with which it is practiced. The type of technological solutions and material equipment traditionally employed by intelligence services for human surveillance and interceptions of communications are no longer enough as intelligence work today relies on advanced, emerging, and experimental technologies associated with digital surveillance. This includes new means for generating intelligence such as algorithms and machine learning, means for storing and sharing intelligence transnationally such as

6 Hager Ben Jaffel and Sebastian Larsson clouds and interoperable databases, and means for silently collecting intelligence such as spyware and hacking programmes. Thus, the way actors understand intelligence is not the same across professions. The intensified technologisation of intelligence has pushed it far beyond the simple ‘cycle’ of collection, analysis, and dissemination aimed at assisting state elites in national security and foreign policymaking. Indeed, the social uses of technology also suggest that intelligence today is increasingly about the bulk collection of citizens’ data, without their knowledge or consent. Alerting citizens of this surveillance, as Snowden did, hence disrupts the prevailing notion of intelligence operations as mainly targeting foreign state behaviour and informing state practitioners. Equally, in a unique ethnographic exploration into the US National Counterterrorism Center in a post-9/11 context, Nolan shows how counter-terrorism work is much more complex than ‘connecting the dots’. In analysing the daily life of intelligence analysts within the organisation, she demonstrates that their day-to-day work is marked by contradictory ends where they have to cope with data overload while having inappropriate access to the relevant technological systems (i.e., databases) to do the job (Nolan 2013: 19–33). In this sense, ‘doing’ intelligence today could mean anything from informing high politics and producing risk assessments, to dealing with the mundanities of the everyday labour of law enforcement, to managing the intricacies of implementing and using computerised surveillance solutions. A central element of the diversification of intelligence practices is their effects in terms of violence and coercion. The involvement of intelligence services in extraordinary renditions programmes in the so-called ‘war on terror’ has shed light on the ‘enhanced’ (illegal) interrogation techniques used on suspected terrorists (Stampnitzky 2020), as well as the relative immunity enjoyed by intelligence services and authorised by the tacit complicity of a segment of politicians justifying their activities in the name of ‘national security’ (Bassiouni 2005, Chwastiak 2015). This form of physical violence is accompanied by the symbolic and socio-political violence towards Muslim communities who are contrived to ‘cooperate’ with local security authorities as they conduct embedded surveillance (Qurashi 2018). Other less visible forms of violation of civil liberties and human rights abuse have surfaced following challenges brought in courts by human rights groups, journalists, and privacy groups. Recent legal cases and rulings in the European Court of Human rights have found US NSA’s, UK GCHQ’s, and German BND’s domestic and international monitoring, interception, and bulk collection of online and phone communications data illegal and/or in breach of rights to privacy (BBC News 2020, The Guardian 2018, The New York Times 2015). How intelligence became connected to law enforcement, counterterrorism, banks, and the like is the effect of the gradual entanglement of intelligence with the myriad of occupational sites that compose the broader fields of ‘security’ and ‘surveillance’. Indeed, the introduction of intelligence

What’s the Problem with IS? 7 in new spheres of human activity cannot be explained by evolving threat perceptions alone but needs to be linked to the larger political and bureaucratic struggle during primarily the 1990s and 2000s resulting in a gradual mission change for security professionals, as well as a redistribution of their budgetary, human, and technical resources (Ben Jaffel 2019). The shifting role of intelligence services mirrored the general transformation of security practices across most Western societies in this regard, reorganising their core stake from a narrow one (counter-espionage) into a far wider one (including but not limited to counter-terrorism, fighting organised crime, cybersecurity, electronic surveillance, migration control). By extension, this shift has led to the rise of a pre-emption logic, which means practitioners aim to anticipate, rather than respond to terrorism and other criminal acts (de Goede et al. 2014; de Goede 2008). Intelligence has established itself as the core means by which to conduct this kind of pre-emptive security, which involves data collection through upstream monitoring of movements, communications, and behaviour, as well as intelligence sharing among services (Bigo 2019). The emergence of digital technologies (e.g., data mining software, computerised devices, databases) has cast the net wider, enabling a more extensive and intrusive coverage of data flows. The involvement of elected politicians and legislators in security matters has also granted extended capacities, competencies, and budgets to intelligence services through new security legislation, thereby translating (or not) their demands. The expansion of intelligence beyond its traditional spheres of activity has effectively diffused and extended the chains of interdependencies among those associated with intelligence work, transforming it into an increasingly transversal practice. The transversal dimension is here generated by the fact that actors who may be traditionally separated, or who may have vastly different historical trajectories, are now connected and bound together by their shared stake in contemporary intelligence. The very fact that different actors are embedded in struggles to say, perform, promote, constrain, or contest intelligence shows indeed that they are not acting in isolation from one another but as interdependent allies or adversaries (Elias 1991). One example that neatly captures both alliance and enmity is intelligence cooperation, being at once about intelligence sharing and withholding. Other instances include private–public partnerships with state bureaucracies who increasingly rely on private companies for intelligence targeting and collection, as well as for legal oversight and enforcing limits to intrusive intelligence activities. All these examples show that intelligence entails a multiplicity of professions and occupations, both within and outside socalled ‘intelligence communities’. To study contemporary intelligence, we must consider an analytical and methodological approach that takes people, practices, and relationships as the immediate point of departure, and hence as the most relevant units of analysis. Indeed, we need to focus on the hands and minds of those who are doing intelligence, regardless of where, to understand how intelligence is

8 Hager Ben Jaffel and Sebastian Larsson performed today. The institutions, norms, policies, legislations, technologies, and other means that make up intelligence do not exist in a vacuum but are determined by the actions and relationships of social actors. By contrast, an approach that gives precedence to dominant political and media discourses or focuses on a reasoning in terms of narrow threat perceptions and geostrategic stakes – which are more often taken for granted a priori rather than observed empirically – prevent from capturing the everyday routines of those who produce the actual definitions and practical logic of intelligence. As mentioned, intelligence is about human actions of professionals for whom intelligence is either a daily activity or an issue they are drawn to as part of their work. Treating it as such renders possible a sociologically and anthropologically grounded analysis which grasps the granularity of the intelligence labour, its many actors, and the specific ‘craft’ involved. For instance, tracing professional trajectories is a means to explore actors’ (often multiple) positions and circulations across social sites and professions – and hence the relationships that tie specific sites together while leaving others excluded – and understand how intelligence has ‘colonised’ certain social sites. Ethnographic fieldwork and semi-structured interviews, for instance, illuminate the lived experiences of those ‘doing’ intelligence, how social actors define and understand their work, which specific aspects of their daily job are most important to them, which label they use to talk about intelligence, and who they work with the most – in sum, a series of empirical details that enable one to re-construct intelligence in a reflexive rather than an a priori way. Observing actors and their doings, it also becomes possible to better understand the social effects of intelligence, including its violent and coercive effects, and the implications this may have on fundamental civil and human rights. A practice-oriented approach, we therefore argue, is more sophisticated and relevant than the kind of state-centric and rationalist approaches usually favoured in traditional studies of intelligence. By following and analysing logics of action rather than receiving knowledge on intelligence, our analytical approach irremediably involves questioning some of the core components of Intelligence Studies (IS). This scholarship and body of literature have gone furthest in examining intelligence, but it has, nonetheless, as recalled by Cavelty and Mauer (2009), insufficiently reflected on epistemological and ontological shifts incurred by post-Cold War developments. The way in which scholars in IS and adjacent disciplines have historically understood, constructed, and closed down intelligence with particular definitions, assumptions, and dogmas pose a number of problems. For one, IS’ main understanding of intelligence continues to be one which assumes that intelligence services’ main aim is to predict hostile state behaviour and secure states’ advantage on the world stage – a strategic conception of intelligence which found particular strength after Second World War and during the Cold War under the impetus of intelligence professionals themselves, and particularly so in the United

What’s the Problem with IS? 9 States of America and in Britain. As will be elaborated later, this focus on statecraft and functionalist knowledge has progressively set IS’ core function into one of improving the performance of intelligence services in assisting decision-makers. To be sure, IS has still contributed to our general knowledge about intelligence activities, not least from a historical viewpoint. There is a wealth of studies in IS and military history that offer key details on the intelligence services during Second World War, the Cold War, and other significant periods in world politics, as well as on historical and current intelligence alliances such as the US and UK services’ so-called ‘special relationship’. However, as we show in this book, there is a rather high degree of discrepancy between existing categories of understanding in IS and the intelligence practices on the ground today. What is more, the most promising reflections on modern intelligence have in fact been developed outside of IS and along other disciplinary lines. While fields such as Critical Security Studies, Critical Criminology, Surveillance Studies, and (International) Political Sociology have approached contemporary intelligence by studying different actors and practices, and thereby generated findings that are fundamentally different from those in IS, these promising investigations have remained largely isolated from each other due to a lack of cross-disciplinary interaction. To overcome these divisions, we adopt a transdisciplinary approach to both problematise the categories of knowledge IS and break with its largely functionalist ontological foundations, as well as offer ways to connect and combine alternative and critical perspectives on intelligence. The following section will develop this position by drawing on key critical work from beyond IS and show how the analysis of contemporary intelligence may benefit strongly from transdisciplinary thinking. The section after that will critique the AngloAmerican functionalism inherent in IS and show how it emerged historically as a body of know-how set up predominantly by, about, and for intelligence services and decision-makers. We will then finally present the key themes and research questions that will run through the volume, before outlining the different chapter contributions.

A Transdisciplinary Perspective on Contemporary Intelligence We argue that in order to reach a broader and more impactful form of critical understanding of intelligence as a contemporary practice which is moving increasingly across different areas of society, we need an analytical approach which moves, in a similar fashion, between and through disciplinary areas. To enable critical analysis by mixing and intermingling disciplines is far from a new idea. For instance, in his 1984 essay ‘The Future of Criticism’, Edward W. Said noted how critique in his time was ‘divided into many camps’ that had been ‘labelled with the names of various critical schools (…) whose roots are struck in relatively superficial and restricted academic soil,

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and not in the deeper social and ideological matter that may originally have nurtured them’ (Said 1984: 956). In essence, Said called for a breaking up of ‘routinely compartmentalised stabilities’, and a form of critique that ought to be ‘exercised in the traffic between cultures, discourses and disciplines rather than in the appropriation, systematisation, management, and professionalisation of any one domain’ (ibid.). On a similar note, C. Wright Mills expressed his concerns already in 1959 that the boundary-making around disciplines posed a significant risk for social scientists. In order ‘to state and to solve any one of the significant problems of our period’, he saw it as necessary to draw on a ‘selection of materials, conceptions, and methods from more than any one of these several disciplines’ (Mills 2000: 142). He argued that critical scholars ‘need not “master the field” in order to be familiar enough with its materials and perspectives to use them in clarifying the problems that concern him [sic]. It is in terms of such topical “problems”, rather than in accordance with academic boundaries, that specialisation ought to occur’ (ibid.). To Mills, critique was not a temporary position-taking, but a fundamental part of what he called a ‘sociological imagination’ requiring scholars to ‘avoid the arbitrary specialisation of prevailing academic departments’ and to rather specialise one’s work ‘variously, according to topic, and above all according to significant problem’ and to ‘continually and imaginatively (…) draw upon the perspectives and materials, the ideas and methods, of any and all sensible studies of man and society’ (ibid.: 225). The epistemological concerns of Mills’ ‘imagination’ resonates, moreover, with the methodology of ‘curiosity’ that has driven feminist scholars such as Cynthia Enloe (2004) in their critical explorations of power, politics, and violence, particularly in everyday contexts. Pierre Bourdieu was another thinker to persistently warn against the arbitrary compartmentalisation of knowledge. Bourdieu noted a tendency towards a high degree of specialisation among social scientists who seemed to want to ‘imitate the advanced sciences’ by imposing functionalist models ‘in which you have very precise and very narrow objects of research’ (Bourdieu 1990: 39). This can be likened to how much scholarship in IS has been similarly concerned with rather particular analytical objects (state secrets) to be studied with rather particular goals in mind (to assist policymakers). Again, if we want to take the boundary-crossing characteristics of contemporary intelligence seriously and adopt a more pluralistic approach, scholars should not, in the words of Bourdieu, strive to become the new ‘big fish in a little stream’ but rather work across disciplinary specialisations in the social sciences to become more of a ‘little fish in a big stream’ (ibid.). In sum, what these authors remind us is that it is necessary to have crosscutting debates if we want to reach a deeper and broader critical understanding of any given contemporary ‘problem’ such as intelligence. In fact, beyond IS, other bodies of literature have already made significant contributions to the study of the people and practices of intelligence today. Mention can be made of areas such as Police Studies and Criminology,

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including investigations on, e.g., intelligence-led policing (Cope 2004, Maguire 2010, Ratcliffe 2008, Sheptycki 2004, 2017), intelligence gathering in prisons (Chantraine and Scheer 2020, Sallée and Chantraine 2014, Scheer 2020), financial intelligence in the policing of ‘suspicious’ money flows (Amicelle 2014, 2019, Amicelle and Lafolla 2018), transnational intelligence cooperation (Sheptycki 2003), and post-9/11 security and counter-terrorism (Zedner 2009). In Critical Security Studies, and perhaps particularly in the so-called ‘Paris school’, research has been conducted on, e.g., the intelligence practices of French police forces (Bonelli 2005; Bonelli and Ragazzi 2014), and the intermingling of intelligence services with other ‘managers of unease’ (Bigo 2002, 2014). Science and Technology Studies have covered, e.g., the construction of raw data by intelligence practitioners (Räsänen and Nyce 2013) as well as the technologisation of intelligence-led predictive policing and profiling (Kaufmann et al. 2019; Leese 2014). In Political Sociology, studies have been conducted on, e.g., the role of intelligence and secrecy in terrorist interrogations (Stampnitzky 2020) and trials (Mégie and Jossin 2016). Indeed, some of the most interesting and promising analyses of contemporary intelligence seem to be coming not from IS but elsewhere. However, even though these investigations have the merit of addressing intelligence from innovative theoretical and ontological perspectives that are poorly – if at all – utilised in IS, most of them do not engage with each other nor with IS debates, but remain confined within their own fields and fail to advance the understanding of intelligence across disciplines. The study of intelligence is therefore largely dispersed between different nuclei of research that do not engage in the kind of constructive dialogue that could forward our overall understanding of contemporary intelligence. While Said’s (1984: 954) claim that people aspiring to be ‘critical’ must become ‘directly exposed to the winds of interdisciplinary thought’ is certainly inspiring, we insist on going one step further. As such, ‘interdisciplinarity’ is arguably not enough since it suggests only a movement back and forth between disciplines. It encourages only brief and temporary visits to these different nuclei of research, before shifting back to one’s home discipline. It does not question or seriously challenge the ordering of knowledge into disciplines; rather, it can only recognise and eventually reproduce these disciplinary lines. The solution is to take seriously the shift from an interdisciplinary approach to a transdisciplinary approach which encourages movement not only between but also through established areas of research. This shift is not simply terminological but means in practice that one’s actual line of enquiry gets priority over what are essentially arbitrary disciplinary lines. The formulation of one’s research problem should be inspired firstly by empirical observation, in our view, and from there, following Mills, one should draw imaginatively on any and all of the relevant perspectives and materials, ideas and methods available in the social sciences. Any dialogue between different fields prompted by the research problem must then be sincere and sustained. This way, our disciplinary

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maps may become, if not reordered, then at least reimagined. Intelligence is precisely one of those ‘transversal’ practices and social phenomena which have come to cut through and move across several domains of today’s society. Hence, its study will benefit directly from this kind of transdisciplinary approach (see also Basaran et al. 2016). To give a concrete example, one area of scholarship within the larger discipline of International Relations (IR) where this kind of transdisciplinary approach has been promoted is International Political Sociology (IPS) (Bigo and Walker 2007, Huysmans and Nogueira 2012). IPS scholars observe research problems that ‘seem to be simultaneously social, political and international, but not quite in ways that make sense to analysts committed to the academic disciplines specialising in the social, the political or the international’ (Walker 2016: 16). Since its emergence in the late 2000s, IPS scholarship has not only urged researchers to stay committed to the study of practices but also insisted on the detrimental effects of disciplinary gatekeeping and that analyses (and particularly ‘critique’) of any social, political, and international phenomena requires researchers to cross through multiple disciplines and connect previously disconnected methodological and theoretical insights. Over the past two decades, IPS research has contributed to opening up the study of issues such as security, crime control, surveillance, law, and migration, inviting scholars in these fields to consider the intermingling international, political, sociological dimensions of their research problems. Its favouring of cross-over logics, as well as its sensitivity to social relations and everyday practices, thus makes IPS a useful approach from which to depart and draw inspiration from also in the study of contemporary intelligence (Ben Jaffel et al. 2020). In fact, intelligence-related issues have already been studied by several scholars working in (or near) the IPS tradition. For instance, IPS studies on the Snowden revelations illuminated how mass surveillance practices of intelligence actors had expanded globally and into the digital realm and become a new normal during the so-called ‘war on terror’ (Bauman et al. 2014). Related scholarship has also strived to make sense of the socio-digital combinations of mass surveillance and intelligence; for instance, by studying how various regimes of intelligence knowledge compete and are produced differently by, e.g., legal experts and digital technologies (Aradau 2017). Beyond the ‘digital’ realm, IPS research has managed to not only further connect intelligence with police work but also more generally combined IR and Critical Security Studies with the field of Criminology (Bigo 2016). This combination immediately draws attention to the ‘everyday’ dimensions of intelligence gathering, as scholars have shifted focus from high-level bureaucracies to how intelligence is collected through mundane practices of policing, surveillance, and everyday vigilance in public spaces. For example, it has been studied how the collection of counter-terrorism intelligence has come to increasingly involve the citizen itself, reconfiguring intelligence work into a ‘shared responsibility’ to report people, behaviours, or objects

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that appear ‘suspicious’ or ‘out of place’ (Petersen and Tjalve 2013; Larsson 2017). Here, sensitive information becomes generated not from ‘undercover’ sources, but directly from citizens in a form of ‘participatory policing’ in public spaces. This radically shifts the question of what intelligence means, since subjective citizen reports based on prejudice and fears are treated as perfectly legitimate intelligence for police-driven operations (Monahan and Palmer 2009). ‘Once the work of an insular and carefully selected few’, as Petersen and Tjalve (2018, 30) argue, ‘intelligence production is now a networked, partially open and extensively public–private enterprise’. Combining the study of intelligence with critical insights on security, crime control, and everyday policing, IPS inspired work has also illustrated how today’s intelligence work – perhaps paradoxically from a historical perspective – is just as much about cooperation. For example, Ben Jaffel (2019) has conducted extensive ethnographic fieldwork on the everyday practices of British counter-terrorism police liaison officers, arguing that British intelligence today is to a large extent about police cooperation with European internal security services. Her findings illustrate how British counter-terrorism intelligence cooperation is much more embedded in European collaborations than IS literature has given credence to (Ben Jaffel 2020). Ben Jaffel’s argument finds resonance in Bigo’s recent studies on secrecy as ‘shared secret information’ (2019). By investigating information exchanges by national intelligence services, Bigo shows how ‘secrecy’ is not actually about withholding information, but about techniques to restrict information within a ‘certain “circle” of people with authority to maintain the others in ignorance’ (ibid.: 379). In sum, from early sociological work to more recent explorations into cross-disciplinary forms of critique, it becomes clear that in order to problematise IS and gain an understanding of contemporary intelligence which is both deeper and broader, a transdisciplinary analytical approach comes with key benefits. By carefully moving through, engaging with, borrowing from, connecting, disconnecting, and disturbing certain areas of research, we will be able to fruitfully open up and develop the study of intelligence in this book.

The Problem with Intelligence Studies The rationale of our transdisciplinary strategy to study contemporary intelligence involves challenging and disturbing not only the ordering of knowledge into disciplines, as already mentioned, but also knowledge production within IS more specifically. Anglo-Americanism, State-Centrism, and Functionalism in IS To question IS, it is necessary to look at who produces its knowledge. The IS field is, and always has been, dominated by Anglo-American scholars as well as professionals associated with mainly Western state bureaucracies. IS’

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research agenda has developed to a large extent since the 1950s by fostering a relationship and common socialisation among academics and practitioners in universities, at conferences, and in other professional associations. This has gradually established a community of multi-positioned practitionerscholars – or ‘pracademics’ – as its authoritative figures because they are vested with an insider’s knowledge of intelligence. In the early days of IS, it was common for practitioners to construct knowledge on intelligence by turning their professional know-how, assumptions, and claims into ‘academic’ knowledge. Scholars, in turn, gave credence to and legitimised these knowledge claims either by reinforcing their value, or at least leaving them largely uncontested (see also Berling 2011). Notable pracademics included Sherman Kent, former CIA analyst and history professor at Yale in the 1970s. Usually acknowledged as the ‘founding father’ of IS, his monograph Strategic Intelligence for American World Policy provides a relevant example of literature to aid the training of strategic analysis (Kent 1949). Arthur Hulnick, also a former CIA professional, served as an associate professor in International Relations at Boston University which he first joined as a CIA officer-in-residence. This reflects a more widespread CIA practice of conducting outreach activities in academia via its dedicated Office for Academic Affairs (Hulnick 2009) and Staff Historians (Moran and Murphy 2013: 9). Another well-known figure is Michael Warner, who served as a historian for the Director of National Intelligence (DNI) and taught at Columbia University and Johns Hopkins University.2 Similarly, Sir David Omand, former UK Security and Intelligence Coordinator and director of the GCHQ, has been visiting professor at King’s College London’s War Studies department since 2005 where he has been teaching about intelligence and providing training to government intelligence analysts while publishing widely on the subject (Omand 2010, 2020). Recently, the University of Nottingham appointed Sir John Sawers, former head of the Secret Intelligence Service (SIS), as an honorary professor to share his ‘expertise from the world of politics practitioners with students and staff (…)’.3 In parallel, ‘sponsored’ histories of intelligence and security services commissioned to appointed British historians (Baxter and Jeffery 2013) and a ‘policy of indoctrinating academics’ (Goodman 2007) emerged out of the sustained interdependencies between academia and intelligence services. Some key examples include the ‘official’ histories of the Joint Intelligence Committee (Goodman 2014), the ‘authorised’ history of the Security Service (Andrew 2009), and the history of British intelligence during the Second World War by Sir Harry Hinsley et al. (Baxter and Jeffery 2013: 291). The recent publication of an ‘official’ history of the Australian Security Intelligence Organisation (ASIO) (Horner 2014, Blaxland 2015, Blaxland and Crawley 2016) attests to the expansion of this practice. This form of ‘endogamy’ has highly visible and lasting effects on the production of categories of understanding about intelligence, and the

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prioritisation of some at the expense of others. The Anglo-American dominance of IS means that existing knowledge on intelligence remains chiefly dominated by analyses that focus on the politics and experiences of intelligence services from Britain, the United States of America, and the Five Eyes allies4 who are then viewed as blueprint models to account for intelligence everywhere (Aldrich and Kasuku 2012). This also means that the social dimension of intelligence has been largely reduced to relations between state intelligence bureaucracies and policymakers, defining intelligence as a function ‘for’ the state and setting IS’ purposes as one of improving the performance of intelligence services in assisting national security and policymaking (Gill and Phythian 2018a, for a similar approach, see also Sims 2006, 2009). For Marrin, IS is an ‘academic complement to national security intelligence; the contribution that higher education makes to interpreting its past, understanding its present, and forecasting its future’ (2016, 266) echoing Sherman Kent who was among the first to conceptualise intelligence as ‘(…) the knowledge which highly placed civilians and military men must have to safeguard national welfare’ (1949: vii). This strategic representation of IS has, however, been called into question for being exclusively geared towards practitioners and insufficiently taking into account other audiences, not least academia and the public. For Gill and Phythian (2016), the study of intelligence reflects other concerns than just policy and practice as demonstrated by the diversification of its focus which now includes intelligence oversight, covert action, and non-state actors (see also Gill and Phythian 2018b). This is also reflected in the multiplication of debates about intelligence. In addition to intelligence analysis and historical accounts of the Second World War, the Cold War and other historical events, discussions now also include intelligence failure, ethics, accountability, counter-intelligence, intelligence theory, and intelligence liaison (Van Puyvelde and Curtis 2016, Varouhakis 2012). From this perspective, intelligence is, Gill and Phythian argue, ‘a pre-eminently social and political phenomenon, not simply a technical discipline’ (2016: 8). That said, their stance does not mean a full divorce from practice and policymaking more widely. Policy relevance and practical necessities should still be at the heart, and continue to determine, intelligence research (2016: 14); or in their words, ‘intelligence studies should, of course, be relevant to intelligence practice; [ours] is not an argument for irrelevance’ (2016: 15). This sets a priori the orientation of intelligence research. This larger disposition is not exclusive to the United Kingdom or United States of America context though. The relationship between practitioners and academics is a central characteristic of the development of IS in other national settings as well, to a greater or lesser degree. In France, for instance, several initiatives have formalised the relationships between intelligence practitioners and academia, such as regular conferences and partnerships (Van Puyvelde et al. 2020). The ‘intelligence cycle’ – as a model for the collection and analysis and dissemination of intelligence – captures this functionalist disposition and has

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been gradually established as the dominant conception to understand intelligence in practice (Marrin 2016). The cycle model likely dates back to a US Army training manual released during the Second World War, entitled Intelligence is for Commanders (Glass and Davidson 1948). Since then, the cycle has become a pervading pattern in thinking about intelligence, from Sherman Kent’s Strategic Intelligence for American World Policy to more contemporary contributions (see most notably, Johnson 1986, 2010, 2015). It is considered that the cycle best explains how intelligence professionals understand their work and accurately reflects the ‘professional world of intelligence’ (Phythian 2009: 55, Johnson 2009). This definition of intelligence is construed with strong realist and state-centric epistemologies (Gill and Phythian 2018a). For Phythian, structural realism provides the ‘(…) foundation from which the practice of intelligence arises and the framework that best describes the world as seen, implicitly or explicitly, from the point of view of the intelligence professional and at least some leading figures in the IS field’ (2009: 61). While the cycle appears to be an essential concept in the understanding of intelligence, it has equally received considerable criticism for its failure to fully capture how intelligence works outside of the framework of American (and British) national security (Gill and Phythian 2013). Technological change and post-Cold War threats and targets are considered as the main factors disrupting, and generating alternatives to, the traditional idea of the cycle (ibid., 2013, Berkowitz and Goodman 2000: 72–73; for a range of views, see Phythian 2013). Kristan Wheaton went as far as to suggest we ‘kill’ the intelligence cycle, ‘a WWII era relic that is way past its sell-by date’ (Wheaton 2011). That said, and despite being contested by intelligence professionals themselves for inaccurately conceiving intelligence production (Hulnick 1986, 2006, 2013, Marrin 2016), the cycle has not been abandoned. It continues to drive the intelligence project, and to define what does and does not count as intelligence and secrecy. The narrow conception of intelligence as a fixed cycle generating secret knowledge (Hulnick 1999, Lowenthal 2009, Scott and Jackson 2004) has been contested by a handful of dissenting voices in IS who want to reformulate intelligence as ‘simply what services do’ (Stout and Warner 2018: 521) by acknowledging, e.g., other practices such as record keeping (Ehrman 2009) and data storage (Hammond 2010) as well as actors beyond secretive institutional settings such as police forces (Aldrich 2009a, Foley 2013) and non-state actors (Martin and Wilson 2008, Stout and Warner 2018, Van Puyvelde 2019). Similarly, intelligence’s international labour in terms of cooperation and information exchange has equally called into question state secrecy (Aldrich 2009b, Svendsen 2009a), and other IS scholars have sought to breach the limits of the Anglosphere to address intelligence outside Anglo-American experiences (Aldrich and Shiraz 2019, Aldrich and Kasuku 2012, Baches-Torres and Torres-Baches 2018, Hoffmann 2020).5 Unfortunately, promising efforts to expand the empirical meaning of intelligence has not been followed by an in-depth renewal of approaches to

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intelligence despite claims of IS’ interdisciplinary scope (Gill and Phythian 2016). IS continues to be a field of scholarship dominated by military historians, including those ‘former practitioners-turned-official-historians’ and political scientists (Van Puyvelde in Diaz et al. 2020, 26). Enquiries that have sought to interweave intelligence more closely with IR also form part of this cohort of work, with roots in IR realism and its variations (see for example, Phythian and Sims in Gill and Phythian 2009). The low diversity in IS has prompted some scholars to suggest that the field is ‘sometimes described as a “ghetto” of diplomatic history and international relations because its practitioners have hitherto not been bold enough in noting the profound impact of their object of study upon wider society, and its momentous political reverberations beyond the corridors of state’ (Willmetts 2019: 801). Indeed, IS scholarship grounded in ‘theor[ies] from the margins’ (Bean 2018) is in a minority. For example, only a few studies are related to sociological approaches (Nolan 2013, 2019, Tuinier 2021), cultural studies (Willmetts 2019), or ethnographic methods unearthing some of the practices and actors behind contemporary intelligence (Ben Jaffel 2019, Eriksson 2016, Johnston 2005). These moves portray nascent initiatives to diversify IS and make it more comprehensive7 (see also Eriksson 2018). At the same time, other currents such as feminist studies are virtually excluded from IS (see Bean 2018 for a general overview). The overall timid expansion of the field can be explained by the gatekeeping effects of those mainstream approaches and scholars who tend to shut down alternative insights (Davies 2009, Lillbacka 2013). For Lillbacka, for instance, intelligence analysis is ‘inherently realist’ and ‘has nothing to gain from contemporary constructivism’ (2013: 306). ‘Critical’ Intelligence Studies Against this backdrop, other initiatives have gone a step further by formulating ‘critical’ approaches to intelligence – grouped together under a common label, Critical Intelligence Studies (CIS). Hamilton Bean (2018) advances a ‘rhetorical and critical/cultural perspective’ to examine the knowledge-power nexus constitutive of intelligence practices, focusing on intelligence’s social context and situating his approach in ‘studies where power is “integrally constitutive of the scholarly questions and political goals of scholarship”’ (2013: 498). Informed by Critical Security Studies, Peter de Werd moreover understands criticality as ‘a self-reflexive attitude that problematizes the essence and workings of “intelligence” within a sociopolitical context’ (2018: 109) and mobilises an ‘analysis by contrasting narratives’ as a methodological tool that incorporates critical discourse analysis and elements from securitisation theory to examine the (de)securitisation moves of narratives from various actors, from producer to consumer. This line of research, that seeks to interrogate the concepts and canons underpinning classical IS, is a worthwhile contribution to the study

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of intelligence. In a recently published special issue, the leaders of the CIS project define its goal as one of ‘reveal[ing] the workings of and struggles for power within and among intelligence organizations and between those organizations and other social and political organizations and institutions’ (Bean, de Werd, and Ivan 2021: 2). They also mobilise ‘de-reification’ as an analytical strategy to unpack the ‘essentialist images of intelligence practice’ (ibid). The attention given to the social and relational tissue of intelligence generates commonalities and bridges between CIS and this collective volume’s research agenda. These are further mirrored by Klein Goldewijk’s position in the same special issue whereby ‘a critical redirection of intelligence might have to endorse renewed research on what intelligence is today, where it stands for, and how changing knowledge strategies and practices might impact it’ (2021: 6). However, the diverging IS scholarship cited above – from reformist accounts to recent lines of enquiry that are explicitly ‘critical’ – fail to seriously reformulate debates on intelligence since they remain prisoners of the doxa in their discipline. Put differently, despite their intents, these accounts remain attached to many of the common-sensical views and core stakes that have for so long structured the IS field and underpinned the academic debates therein. Although the CIS project exhibits a number of benefits, it nonetheless seeks to ‘improve’ intelligence-related policy debates by reaching a ‘more visible and influential position within IS’ (Bean 2018: 528; see also Bean 2013: 508) and hence has little intention, it would seem, of moving beyond IS’ disciplinary boundaries or for that matter questioning its historical emergence around the workings of state bureaucracies. De Werd’s critical methodology similarly aims at enhancing intelligence analysis by speaking the ‘most relevant truths’ to decision-makers (2018: 110) by examining how intelligence problems are framed within the producer/consumer relation. Hence, even ‘critical’ efforts tend to maintain the functionalist mindset discussed above, reproducing the main ambition of IS as one of improving policymaking and intelligence services’ ability to ‘serve sovereign powers’ (Stout and Warner 2018, 523). This position has been reasserted lately as follows: ‘Critical intelligence studies does not necessarily need to come at the expense of intelligence effectiveness’ (Bean, de Werd and Ivan 2021: 1). In this sense, investigating intelligence and investigating for intelligence are not considered as incompatible ends but as mutually inclusive, as the authors envision CIS as ‘not a definitive “divorce” but an ongoing “agonism” (a positive form of conflict) wherein reflexive and critical approaches can accentuate how the study of and for intelligence might productively influence each other’ (ibid.: 3). Further, they acknowledge that ‘CIS is not necessarily opposed to studies for intelligence’ (ibid.: 5).8 CIS is open to practitioners and aspires to make them more self-critical about their practices, in this regard. Rather than to challenge IS’ historical role as a functionalist discipline that, in the words of the CIS special issue itself, is fundamentally

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about ‘state-making and maintenance’ of state power, the project welcomes ‘researchers maintaining “realist”, “positivist”, or “objectivist” foundations for knowledge’ to contribute to the development of CIS (ibid.: 3–4). To avoid any confusion, this project is therefore neither strictly IS nor ‘critical’ IS, nor another kind of add-on to this discipline. It is not about functionalism, nor about ‘agonism’ as an in-between position. Rather, this project’s immediate point of departure is the study of the people and practices entangled with intelligence. If anything, its contribution is broadly social scientific in scope, while acknowledging and remaining reflexive about the rich plurality of traditions of thought in this school of research. This is what sets our approach apart from IS and CIS altogether. Indeed, if conceived of and contained within a single field of scholarship, criticality can only reach so far, and will not consider to radically rethink or question the discipline’s boundaries or categories of knowledge. As discussed in the previous section, this is what distinguishes a reflexive and transdisciplinary approach from a ‘critical’ one. ‘Critical’ perspectives on intelligence may still be tied to some of the core principles and stakes of IS, and so their criticisms are not required to do much more than to attack the first movers in the field in an attempt to influence their dominant views. Strictly intra-disciplinary critical perspectives are like pretenders to the throne who rebel out of selfinterest but do not want to overthrow the noble house as such, to use Bourdieu’s royalist metaphor (2004). In conclusion, IS and its few dissenting voices fail to recognise – or succeed to ignore – how some intelligence work has been historically maintained by IS scholarship. Indeed, IS has served as a source of recognition for intelligence services, their professionals and pracademics, rendering legitimate their claims to power and authority as well as their practices of obtaining and withholding ‘secret’ information. IS scholarship, in turn, has still not abandoned its functionalist framework of analysis despite, as we have seen above, attempts to enlarge its scope. The long heritage of functionalism and state-centrism in IS unfortunately undermine the supposed openness and criticality in recent initiatives to expand the field beyond its original nucleus – an analytical line also discernible in many of the other contributions to the CIS special issue in Intelligence and National Security (2021). If studies of intelligence were in fact driven by a genuinely problematising and multi-disciplinary attitude, we would expect to see, e.g., sociological, anthropological, ethnographic, and several other kinds of enquiries in (C)IS, as well as more heterogeneous sets of methods and analytical approaches including observational fieldwork, field notes, oral history, biographical interviews, prosopography, inter alia. And again, neither has IS ever seriously called into question the long-term implications of the direct intervention of state actors in the production of knowledge on intelligence. If anything, the strong presence of bureaucratic know-how and state subsidised knowledge in IS scholarship has rather naturalised state power as well as the associated symbolic claims, assumptions,

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and categories that support it (Bourdieu 1991), generating and sustaining an orthodoxic knowledge on intelligence. In effect, who and what constitutes intelligence outside the ‘intelligence community’ becomes largely irrelevant to most parts of IS scholarship. Most strikingly, we believe, it does not dissect intelligence to explore its people, practices and relationships in depth. The ‘intelligence community’ and the ‘cycle’ are instead pre-constructed homogenising categories that ignore the differentiation among social actors and crafts involved as well as the definitional struggles around their meaning. It is not uncommon, for instance, to hear (some) intelligence services say that the police do not do intelligence, and to hear the police say the same about other services. It is by developing a transdisciplinary, reflexive, sociologically, and anthropologically inspired research agenda that we may produce new and alternative forms of knowledge that contribute to our general understanding of contemporary intelligence, yet are autonomous of IS.

Themes and Research Questions The central aim of this book is to generate a renewed understanding of contemporary intelligence by attending to the social actors and practices that constitute it. All chapters depart from distinct epistemological and ontological perspectives to formulate alternative lines of enquiry to the study of intelligence. For this purpose, we have developed both a general analytical approach, as outlined above, as well as a more specific framework of research questions which will enable our authors to account for how intelligence is ‘played out’ in their respective areas of research. Three questions comprise this framework: First, we ask authors to problematise Intelligence Studies and situate their contributions accordingly. We encourage authors to reflect upon the state of knowledge in IS in relation to their objects of enquiry by addressing the following questions: have IS addressed their units of analysis? If so, how? If not, what are the possible reasons for IS’ disinterest in some specific empirical and/or theoretical lines? We prompt authors to identify blind spots, misconceptions, discrepancies between IS’ assumptions and their empirical results in order to better frame their alternative approach. Again, we invite authors to think with and beyond their own disciplines, and by extension to create innovative reflections across disciplinary boundaries. A transdisciplinary approach enables us to, for instance, close the gap between intelligence and counter-terrorism which are usually treated separately in the literature. However, the fact that all chapters seek to build a critique of IS from the ‘outside’ – i.e., by calling upon scholarship that has not been yet mobilised for examining intelligence – does not mean that other bodies of the literature have said everything about intelligence. They obviously have their own blind spots, too. For instance, IPS has been concerned with forms of intelligence practices that have certain distinct ‘international’ dimensions, such as digitalised mass surveillance or

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transnational intelligence cooperation (e.g., Aradau 2017; Bigo 2019), but how about other and more localised forms of intelligence practice that lack this immediately ‘international’ context, say, surveillance in ‘suspected’ Muslim communities and neighbourhoods, or intelligence gathering in unconventional everyday places such as schools, jails, and hospitals? Second, we ask authors to examine contemporary intelligence from the perspective of its human and practical dimensions. We invite authors to take very seriously the study of social actors involved in intelligence and everyday practices. Specific questions to address include, but are not limited to: What is at stake in intelligence practices today? Who are doing it, and how? What routines, skills, and techniques make up their daily job? How do they understand or frame their work more generally? To what extent do they rely on technological means, for instance? In parallel, we also encourage contributions to identify in which empirical sites intelligence is performed, how it ‘arrived’ there and why, and what actor relationships and struggles that underpin intelligence practices in these sites. Third, we encourage authors to address the effects or implications of the increasing expansion of actors involved in intelligence. With an empirical outlook on the way in which intelligence is practiced today, we ask: who or what is affected, and how? Who or what becomes targeted? What are the effects of contemporary intelligence on fundamental rights and freedoms? What are the social, political, ethical, and technological implications of the way in which intelligence is done? How can contemporary intelligence be resisted? Hence, we expect all chapters to reflect in their conclusions on the ‘boundaries’ of intelligence today, and on the practical effects of its expansion, diffusion, and acceleration.

Organisation of the Book 9 The chapters in this book, as well as the volume as a whole, represent an important step towards mobilising a new research agenda and gathering scholars for the study of contemporary intelligence along transdisciplinary lines of enquiry, and with the abovementioned focus on its professionals, practices, and effects. It is organised into three main parts. The first part is entitled ‘Reconstructing the Object of Intelligence’ and includes, beyond this introductory chapter, two additional chapters by, first, Bernardino Leon Reyes and, second, Liam McVay. Demonstrating and further developing the alternative approach to the study of intelligence set out in the introduction, these chapters offer a reflexive rereading of IS literature relating to oversight, as well as a thorough illustration of how the study object of intelligence may be fundamentally reconfigured through a historical reading of intelligence in police work. The second part, entitled ‘The Practical Transformations of Contemporary Intelligence’, consists of five chapters authored by Amna Kaleem, David Scheer, Jean-Paul Hanon, Damien Rogers, and Sebastian Larsson. Each

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chapter offers detailed empirical investigations into the shifting characteristics of intelligence in the post-Cold War and post-9/11 world, and points in particular towards the social, professional, and everyday aspects of these transformations. The chapters draw on findings from various empirical sites – both beyond and within conventional intelligence services – as well as from different countries, including the United Kingdom, France, Germany, New Zeeland, and Sweden. The last three chapters, authored by Alvina Hoffmann, Håvard Markussen, and Didier Bigo, introduce alternative theoretical insights to the study of contemporary intelligence in the third part of the book, entitled ‘Conceptual Reconsiderations of Intelligence’. Here, socio-legal approaches to human rights, notions of neoliberal subjectivity and a theoretical move from ‘watching’ to ‘manipulation’, as well as sociological models for understanding relational spaces of interdependence all help us to conceptually rethink and reconfigure knowledge about modern intelligence. Following these chapters, the conclusion discusses the book’s key findings and arguments, as well as their theoretical and practical implications.

Notes 1 Parts of this introduction chapter draw on our article in International Political Sociology, co-authored with Alvina Hoffmann and Oliver Kearns, entitled ‘Towards Critical Approaches to Intelligence as a Social Phenomenon’ (2020). 2 Gregory Treverton is yet another example of a former practitioner whose contributions have appeared in Intelligence and National Security. Treverton served as chairman of the National Intelligence Council (which is part of the Office of the Director of National Intelligence) and has taught at the Harvard and Columbia Universities. 3 https://www.nottingham.ac.uk/politics/people/honorary-professors.aspx (accessed on 27 August 2021). 4 Australia, Canada, New Zealand, the United Kingdom, and the United States of America. 5 For works focusing on the UK–US special relationship, see Aldrich (1998, 2006) and Svendsen (2009b). 6 Here, we mainly focus on British and American ones. 7 A recent example of these moves is an online seminar entitled ‘Inclusion and Exclusion in Intelligence Studies: Diversifying Intelligence Teaching’ organised by Damien Van Puyvelde and Claudia Hillebrand (5 November 2020). 8 This position is however not as clear cut as it seems. It would appear that there are disagreements among the authors (or ‘oscillation’ to quote them) over the direction of the project, and if it is supposed to be of or for intelligence. 9 The introduction and subsequent chapters of this book were first presented during an author workshop organised as part of the European Workshops in International Studies (EWIS) on 2–3 July 2020. We are thankful for the comments and feedback exchanged during this meeting, which greatly improved the quality of the individual drafts and collective volume. We would also like to thank the four anonymous reviewers who read, critiqued, and helpfully commented on parts of the book manuscript.

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References Aldrich, Richard J. 1998. ‘British Intelligence and the Anglo-American ‘Special Relationship’ during the Cold War’. Review of International Studies 24 (3): 331–351. Aldrich, Richard J. 2006. ‘The UK-US Intelligence Alliance in 1975: Economies, Evaluations and Explanations’. Intelligence and National Security 21 (4): 557–567. Aldrich, Richard J. 2009a. ‘Beyond the Vigilant State? Globalisation and Intelligence’. Review of International Studies 35 (4): 889–902. Aldrich, Richard J. 2009b. ‘Global Intelligence Co-operation versus Accountability: New Facets to an Old Problem’. Intelligence and National Security 24 (1): 26–56. Aldrich, Richard J., and John Kasuku. 2012. ‘Escaping from American Intelligence: Culture, Ethnocentrism and the Anglosphere’. International Affairs 88 (5): 1009–1028. Aldrich, Richard and Zakia, Shiraz. 2019. ‘Secrecy, Spies and the Global South: Intelligence Studies Beyond the ‘Five Eyes’ Alliance’. International Affairs 95 (6): 1313–1329. Amicelle, Anthony. 2014. ‘(Il)légitimité du renseignement financier. Usages transnationaux de la traçabilité des flux de capitaux’ ((Il)legitimacy of financial intelligence. Transnational uses of capital flow traceability). Criminologie 47 (2): 77–104. Amicelle, Anthony. 2019. ‘Naissance d’une agence de renseignement: droits d’entrée dans les univers de la finance et de la sécurité’ (The birth of an intelligence agency: entry costs in the finance and security universe). Culture et Conflits 114-115 (2): 171–197. Amicelle, Anthony, and Vanessa Lafolla. 2018. ‘Suspicion-in-the-Making: Surveillance and Denunciation in Financial Policing’. The British Journal of Criminology 58 (4): 845–863. Andrew, Christopher. 2009. Defend the Realm: The Authorised History of MI5. New York: Alfred A. Knopf. Andrew, Christopher, and David Dilks, eds. 1984. The Missing Dimension: Governments and Intelligence Communities in the Twentieth Century. Basingstoke: Macmillan. Aradau, Claudia. 2017. ‘Assembling (Non)Knowledge: Security, Law, and Surveillance in a Digital World’. International Political Sociology 11 (4): 327–342. BBC News. 2014. ‘Edward Snowden: Leaks that Exposed US Spy Programme’. Available at: https://www.bbc.com/news/world-us-canada-23123964 (accessed 8 September 2021). BBC News. 2020. ‘Court Curbs German Spy Agency’s Bugging Abroad’. Available at: https://www.bbc.com/news/world-europe-52725972 (accessed 10 September 2020). Baches-Torres, Daniela, and Efren Torres-Baches. 2018. ‘Intelligence Studies: An Ironic Tale of Politicization, Failure of Imagination, Lack of Collaboration and Exclusion’. Journal of European and American Intelligence Studies 1 (1): 15–24. Basaran, Tugba, Didier Bigo, Emmanuel-Pierre Guittet, and R. B. J. Walker, eds. 2016. International Political Sociology: Transversal Lines. London: Routledge. Bassiouni, Cherif. 2005. ‘The Institutionalisation of Torture under the Bush Administration’. Case Western Reserve Journal of International Law 37 (2). Available at: https://scholarlycommons.law.case.edu/jil/vol37/iss2/14 (accessed 3 September 2021).

24

Hager Ben Jaffel and Sebastian Larsson

Bauman, Zygmunt, Didier Bigo, Paulo Esteves, Elspeth Guild, Vivienne Jabri, David Lyon, and R. B. J. Walker. 2014. ‘After Snowden: Rethinking the Impact of Surveillance’. International Political Sociology 8 (2): 121–44. 10.1111/ips.12048 Baxter, Christopher, and Jeffery Keith. 2013. ‘Intelligence and ‘Official History’. In Christopher R. Moran and Christopher J. Murphy, eds. Intelligence Studies in Britain and the US: Historiography since 1945. Edinburgh University Press, pp. 290–305. Bean, Hamilton. 2013. ‘Rhetorical and Critical/Cultural Intelligence Studies’. Intelligence and National Security 28 (4): 495–519. Bean, Hamilton. 2018. ‘Intelligence Theory from the Margins: Questions Ignored and Debates not Had’. Intelligence and National Security 33 (4): 527–540. Bean, Hamilton, Peter, de Werd, and Cristina, Ivan 2021. Critical Intelligence Studies: Introduction to the Special Issue. Intelligence and National Security 36 (4): 467–475. Ben Jaffel, Hager. 2019. Anglo-European Intelligence Cooperation: Britain in Europe, Europe in Britain. London: Routledge. Ben Jaffel, Hager. 2020. ‘Britain’s European Connection in Counter-Terrorism Intelligence Cooperation: Everyday Practices of Police Liaison Officers’. Intelligence and National Security 35 (7): 1007–1025. Ben Jaffel, Hager. 2021. ‘When Security Elites Deal with Politicians: Rethinking Practices from the Perspective of Security-Politics Relationships’. European Security 30 (2): 259–284. Ben Jaffel, Hager, Alvina Hoffmann, Oliver Kearns, and Sebastian Larsson. 2020. ‘Collective Discussion: Toward Critical Approaches to Intelligence as a Social Phenomenon’. International Political Sociology 14 (3): 323–344. Berling, Trine Villumsen. 2011. ‘Science and Securitization: Objectivation, the Authority of the Speaker and Mobilization of Scientific Facts’. Security Dialogue 42 (4–5): 385–397. Berkowitz, Bruce, and Allan Goodman. 2000. Intelligence in the Information Age. New Haven and London: Yale University Press. Bigo, Didier. 2002. ‘Security and Immigration: Toward a Critique of the Governmentality of Unease’. Alternatives: Global, Local, Political 27 (1): 63–92. Bigo, Didier. 2014. ‘The (In)securitization Practices of the Three Universes of EU Border Control: Military/Navy – Border Guards/Police – Database Analysts’. Security Dialogue 45 (3): 209–225. Bigo, Didier. 2016. ‘Rethinking Security at the Crossroad of International Relations and Criminology’. British Journal of Criminology 56 (6): 1068–1086. Bigo, Didier. 2019. ‘Shared Secrecy in a Digital Age and a Transnational World’. Intelligence and National Security 34 (3): 379–395. Bigo, Didier, and R. B. J. Walker. 2007. ‘Political Sociology and the Problem of the International’. Millennium – Journal of International Studies 35 (3): 725–739. Blaxland, John. 2015. The Protest Years: The Official History of ASIO, 1963–1975. London: Allen and Unwin. Blaxland, John, and Crawley, Rhys. 2016. The Secret Cold War: The Official History of ASIO, 1975–1989. London: Allen and Unwin. Bonelli, Laurent. 2005. ‘Un ennemi « anonyme et sans » visage’ (An « anonymous and faceless » enemy). Cultures et Conflits 58: 101–129.

What’s the Problem with IS?

25

Bonelli, Laurent, and Francesco Ragazzi. 2014. ‘Low-Tech Security: Files, Notes, and Memos as Technologies of Anticipation’. Security Dialogue 45 (5): 476–493. Bourdieu, Pierre. 1990. In Other Words: Essays Toward a Reflexive Sociology. 1st edition. Stanford: Stanford University Press. Bourdieu, Pierre. 1991. Language and Symbolic Power. Cambridge: Polity & Blackwell. Bourdieu, Pierre. 2004. ‘From the King’s House to the Reason of State: A Model of the Genesis of the Bureaucratic Field’. Constellations 11 (1): 16–36. Cavelty, M. D., and Mauer, V. 2009. ‘Postmodern Intelligence: Strategic Warning in an Age of Reflexive Intelligence’. Security Dialogue 40 (2): 123–144. Chantraine, Gilles, and David Scheer. 2020. ‘Risks” and “Radicalisation”: Scholarly and Professional Critiques of a Criminological Assessment Tool’. Sociologiques Pratiques 40 (1): 73–83. Chwastiak, Michelle. 2015. ‘Torture as Normal Work: The Bush Administration, the Central Intelligence Agency and ‘Enhanced Interrogation Techniques’’. Organization 2 (4): 493–511. Cope, Nina. 2004. ‘Intelligence Led Policing or Policing Led Intelligence? Integrating Volume Crime Analysis into Policing’. British Journal of Criminology 44 (2): 188–203. Davies, Philip H. J. 2009. ‘Theory and intelligence reconsidered’ In Peter Gill, Stephen Marrin, and Mark Phythian (eds.). Intelligence Theory: Key Questions and Debates. London: Routledge, pp. 186–201. de Goede, Marieke. 2008. ‘The Politics of Preemption and the War on Terror in Europe’. European Journal of International Relations 14 (1): 161–185. de Goede, Marieke, Stephanie Simon, and Marijn Hoijtink. 2014. ‘Performing Preemption’. Security Dialogue 45 (5): 411–422. De Werd, Peter. 2018. ‘Critical Intelligence Studies? A Contribution’. Journal of European and American Intelligence Studies 1(1): 109–148. Ehrman, John. 2009. ‘What Are We Talking about When We Talk About Counterintelligence?’. Studies in Intelligence 53 (2). Elias, Norbert. 1991. Quaest-ce Que La Sociologie? (What is Sociology?) La Tour daAigues: Editions de laAube. Enloe, Cynthia. 2004. The Curious Feminist: Searching for Women in a New Age of Empire. Los Angeles: University of California Press. Eriksson, Gunilla. 2016. Swedish Military Intelligence: Producing Knowledge. Edinburgh: Edinburgh University Press. Eriksson, Gunilla. 2018. ‘A Theoretical Reframing of the Intelligence – Policy Relation’. Intelligence and National Security 33 (4): 553–561. Foley, Frank. 2013. Counter Terrorism in Britain and France: Institutions, Norms and the Shadow of the Past. Cambridge: Cambridge University Press. Gill, Peter, and Mark Phythian. 2016. ‘What Is Intelligence Studies?’ The International Journal of Intelligence, Security, and Public Affairs 18 (1): 5–19. Gill, Peter, and Mark Phythian. 2018a. ‘Developing Intelligence Theory’. Intelligence and National Security 33 (4): 467–471. Gill, Peter, and Mark Phythian. 2018b. Intelligence in an Insecure World, 3rd ed. Cambridge: Polity Press. Gill, Peter, and Mark Phythian. 2013. ‘From Intelligence Cycle to a Web of Intelligence: Complexity and the Conceptualisation of Intelligence’. In Mark Phythian, ed. Understanding the Intelligence Cycle. Abingdon: Routledge, pp. 21–42.

26

Hager Ben Jaffel and Sebastian Larsson

Glass, Robert, and Philip Davidson. 1948. Intelligence Is for Commanders. Harrisburg, PA: Military Service Publishing Company. Goodman, Michael S. 2007. ‘Studying and Teaching about Intelligence: The Approach in the United Kingdom’. Studies in Intelligence 50 (2). Goodman, Michael S. 2014. The Official History of the Joint Intelligence Committee. Volume I: From the Approach of the Second World War to the Suez Crisis. Abingdon: Routledge. Guild, Elspeth. 2007. Security and European Human Rights: Protecting Individual Rights in Times of Exception and Military Action. Nijmegen: Wolf Legal Publishers. Guild, Elspeth. 2008. ‘The Uses and Abuses of Counter-Terrorism Policies in Europe: The Case of the Lists’. Journal of Common Market Studies 46 (1): 173–193. Hammond, Thomas. 2010. ‘Intelligence Organisation and the Organisation of Intelligence’. International Journal of Intelligence and Counterintelligence 23 (4): 680–724. Hinsley, Harry, R. Knight, C. Ransom, and E. Thomas 1979. British intelligence in the Second World War: Its Influence on Strategy and Operations, Volume I, A 232. Celsius Ebook. Hoffmann, Sophia. 2020. ‘Arab Students and the Stasi: Agents and Objects of Intelligence’. Security Dialogue 52 (1): 62–78. March, 096701062090430. 10.1177/ 0967010620904305 Horner, David. 2014. The Spy Catchers: The Official History of ASIO 1949-1963. London: Allen and Unwin. Huysmans, Jef, and Joao Pontes Nogueira. 2012. ‘International Political Sociology: Opening Spaces, Stretching Lines: Editorial’. International Political Sociology 6 (1): 1–3. Hulnick, Arthur S. 1986. ‘The Intelligence Producer-Policy Linkage: A Theoretical Approach’. Intelligence and National Security 1(2): 212–233. Hulnick, Arthur S. 1999. Fixing the Spy Machine: Preparing American intelligence for the Twenty-First Century. London: Praeger. Hulnick, Arthur S. 2006. ‘What’s wrong with the Intelligence Cycle?’ Intelligence and National Security 21 (6): 959–979. Hulnick, Arthur S. 2009. ‘Home Time: A New Paradigm for Domestic Intelligence’. International Journal of Intelligence and Counterintelligence 22 (4): 569–589. Hulnick, Arthur S. 2013. ‘Intelligence Theory: Seeking Better Models’. In Mark Phythian, ed. Understanding the Intelligence Cycle. Abingdon: Routledge, pp. 149–160. Jeandesboz, Julien. 2016. ‘Interroger “la vie sociale” des méthodes dans les approches critiques de la sécurité: expertise et enquête sur les questions de sécurité européenne’ (Interrogating the “social life” of methods in critical approaches to security: expertise and investigation into questions of European security). Cultures et Conflits 102 (2): 33–57. Johnson, Lock. 1986. ‘Making the intelligence “cycle” work’. Intelligence and National Security 1 (4): 1–23. Johnson, Lock, ed. 2015. Essentials of Strategic Intelligence. Santa Barbara, CA: Praeger Security International. Johnson, Lock. 2010. ‘National Security Intelligence’. In Lock Johnson, ed. The Oxford Handbook of National Security Intelligence. Oxford: Oxford University Press, pp. 3–32.

What’s the Problem with IS?

27

Johnson, Lock. 2009. ‘Sketches For a Theory of Strategic Intelligence’. InPeter Gill, Stephen Marrin, and PhythianMark, eds. Intelligence Theory: Key Questions and Debates. London: Routledge, pp. 33–53. Johnston, Rob. 2005. Analytic Culture in the US Intelligence Community. Washington, DC: Centre for Intelligence Studies. Kaufmann, Mareile, Simon Egbert, and Matthias Leese. 2019. ‘Predictive Policing and the Politics of Patterns’. The British Journal of Criminology 59 (3): 674–692. 10.1093/bjc/azy060. Kent, Sherman. 1949. Strategic Intelligence for American World Policy. Princeton: Princeton University Press. Klein Goldewijk, Berma. 2021. ‘Why Still Critical? Critical Intelligence Studies Positioned in Scholarship on Security, War, and International Relations’. Intelligence and National Security 36 (4): 476–494. March 1–19. Larsson, Sebastian. 2017. ‘A First Line of Defence? Vigilant Surveillance, Participatory Policing and the Reporting of “Suspicious” Activity’. Surveillance & Society 15 (1): 94–107. Leese, Matthias. 2014. ‘The New Profiling: Algorithms, Black Boxes, and the Failure of Anti-Discriminatory Safeguards in the European Union’. Security Dialogue 45 (5). Lillbacka, Ralf G. V. 2013. ‘Realism, Constructivism, and Intelligence Analysis’. International Journal of Intelligence and CounterIntelligence 26 (2): 304–331. Lowenthal, Mark. 2009. Intelligence: From Secrets to Policy. Washington D.C.: CQ Press. MacAskill, Ewen, and Gabriel Dance. 2013. ‘NSA Files: Decoded – What the Revelations Mean for You’. The Guardian. Available at: https://www.theguardian.com/world/ interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1 (accessed 8 September 2021). Maguire, Mike. 2010. ‘Policing by Risks and Targets: Some Dimensions and Implications of Intelligence-Led Crime Control’. Policing and Society: An International Journal of Research and Policy 9 (4): 315–336. Marrin, Stephen. 2016. ‘Improving Intelligence Studies as an Academic Discipline’. Intelligence and National Security 31 (2): 266–279. Marrin, Stephen. 2018. ‘Evaluating Intelligence Theories: Current State of Play’. Intelligence and National Security 33 (4): 479–490. Martin, Alex, and Peter Wilson. 2008. ‘The Value of Non-governmental Intelligence: Widening the Field’. Intelligence and National Security 23 (6): 767–776. Mégie, Antoine, and Jossin, Ariane. 2016. ‘De la judiciarisation du renseignement: le cas des procès de djihadistes’ (Of the judicialisation of intelligence in trials: the case of jihadist trials). Hermès, La Revue 76 (3): 50–58. Mills, C. Wright. 2000. The Sociological Imagination. Oxford: Oxford University Press. Monahan, T., and N. A. Palmer. 2009. ‘The Emerging Politics of DHS Fusion Centers’. Security Dialogue 40 (6): 617–636. Moran, Christopher R., and Christopher J. Murphy. 2013. ‘Intelligence Studies now and then’. In Christopher R. Moran and Christopher J. Murphy, eds. Intelligence Studies in Britain and the US: Historiography since 1945. Edinburgh University Press, pp. 1–16. Nolan, Bridget Rose. 2013. Information Sharing and Collaboration in the United States Intelligence Community: An Ethnographic Study of the National Counterterrorism Center, PhD Dissertation, University of Pennsylvania.

28

Hager Ben Jaffel and Sebastian Larsson

Nolan, Bridget Rose. 2019. ‘A sociological approach to Intelligence Studies’. In Stephen Coulthart, Michael Landon-Murray, and Damien Van Puyvelde, eds. Researching National Security Intelligence: Multidisciplinary Approaches. Washington, DC: Georgetown University Press. Omand, David. 2010. Security the State. Oxford: Oxford University Press. Omand, David. 2020. How Spies Think: Ten Lessons in Intelligence. Penguin Press. Petersen, Karen Lund, and Vibeke Schou Tjalve. 2013. ‘(Neo) Republican Security Governance? US Homeland Security and the Politics of “Shared Responsibility”’. International Political Sociology 7 (1): 1–18. Petersen, Karen Lund, and Vibeke Schou Tjalve. 2018. ‘Intelligence Expertise in the Age of Information Sharing: Public–Private “Collection” and Its Challenges to Democratic Control and Accountability’. Intelligence and National Security 33 (1): 21–35. 10.1080/02684527.2017.1316956 Phythian, Mark. 2009. ‘Intelligence Theory and Theories of International Relations: Shared World or Separate Worlds?’ In Gill Peter, Marrin Stephen, and Phythian Mark, eds. Intelligence Theory: Key Questions and Debates. Abingdon: Routledge, pp. 55–72. Phythian, Mark, ed. 2013. Understanding the Intelligence Cycle. Abingdon: Routledge. Qurashi, Fahid. 2018. ‘The Prevent Strategy and the UK ‘War on Terror’: Embedding Infrastructures of Surveillance in Muslim Communities’. Palgrave Communications 4 (1): 17. Ragazzi, F. 2017. ‘Countering Terrorism and Radicalisation: Securitising Social Policy?’ Critical Social Policy 37 (2): 163–179. Räsänen, Minna, and James M. Nyce. 2013. ‘The Raw is Cooked: Data in Intelligence Practice’. Science, Technology and Human Values 38 (5): 655–677. Ratcliffe, Jerry H. 2008. Intelligence-Led Policing. Devon: Willan Publishing. Sallée, Nicolas, and Chantraine, Gilles. 2014. ‘Observer, consigner, tracer. Les usages d’un cahier électronique controversé en établissement pénitentiaire pour mineurs’ (Observing, recording, tracing. The uses of a controversial electronic logbook in a prison for minors). Sociologie du travail 56 (1): 64–82. Said, Edward W. 1984. ‘The Future of Criticism’. MLN 99 (4): 951. Scott, Len, and Peter Jackson. 2004. ‘The Study of Intelligence in Theory and Practice’. Intelligence and National Security 19 (2): 139–169. Sheptycki, James. 2003. In Search of Transnational Policing: Towards a Sociology of Global Policing. Ashgate. Sheptycki, James. 2004. ‘Organizational Pathologies in Police Intelligence Systems, Some Contributions to the Lexicon of Intelligence-Led Policing’. European Journal of Criminology 1 (3): 307–332. Sheptycki, James. 2017. ‘The Police Intelligence Division-of-Labour’. Policing and Society, 27 (6): 620–635. Sims, Jennifer. 2006. ‘Foreign Intelligence Liaison: Devils, Deals and Details’. International Journal of Intelligence and Counterintelligence 19 (2): 195–217. Sims, Jennifer. 2009. ‘Defending Adaptive Realism, Intelligence Theory Comes of Age’. In Gill Peter, Stephen Marrin, and Mark Phythian, eds. Intelligence Theory: Key Questions and Debates, London: Routledge, pp. 151–165. Stampnitzky, Lisa. 2020. ‘Truth and Consequences? Reconceptualizing the Politics of Exposure’. Security Dialogue 51 (6): 597–613. Forthcoming.

What’s the Problem with IS?

29

Stout, Mark, and Michael Warner. 2018. ‘Intelligence Is as Intelligence Does’. Intelligence and National Security 33 (4): 517–526. Svendsen, Adam. 2009a. ‘Connecting Intelligence and Theory: Intelligence Liaison and International Relations’. Intelligence and National Security 24 (5): 700–729. Svendsen, Adam. 2009b. Intelligence Cooperation and the War on Terror: AngloAmerican Security Relations after 9/11. Abingdon: Routledge. The Guardian. 2018. ‘GCHQ Data Collection Regime Violated Human Rights, Court Rules’. Available at: https://www.theguardian.com/uk-news/2018/sep/13/gchq-datacollection-violated-human-rights-strasbourg-court-rules (accessed 10 September 2020). The New York Times. 2015. ‘NSA Collection of Bulk Call Data Is Ruled Illegal’. Available at: https://www.nytimes.com/2015/05/08/us/nsa-phone-records-collectionruled-illegal-by-appeals-court.html (accessed 10 September 2020). Tuinier, Pepjin. 2021. ‘Explaining the Depth and Breadth of International Intelligence Cooperation: Towards a Comprehensive Understanding’. Intelligence and National Security 36 (1): 116–138. Van Puyvelde, Damien. 2019. Outsourcing US Intelligence: Contractors and Government Accountability. Edinburgh: Edinburgh University Press. Van Puyvelde, Damien, James J Wirtz, Jean-Vincent Holeindre, Benjamin Oudet, Uri Bar-Joseph, Ken Kotani, Florina Cristiana Matei, and Antonio M Díaz Fernández. 2020. ‘Comparing National Approaches to the Study of Intelligence’. International Studies Perspectives 21 (3): 298–337. Van Puyvelde, Damien, and Sean Curtis. 2016. ‘‘Standing on the shoulders of giants’: diversity and scholarship in Intelligence Studies’. Intelligence and National Security 31 (7): 1040–1054. Varouhakis, Miron. 2012. ‘What is Being Published in Intelligence? A Study of Two Scholarly Journals’. International Journal of Intelligence and Counterintelligence 26 (1), 176–189. Walker, R. B. J. 2016. ‘Only Connect: International, Political, Sociology’. International Political Sociology: Transversal Lines. Routledge. Wheaton, Kristan. 2011. ‘Let’s Kill the Intelligence Cycle’. Sources and Methods. Available at: https://sourcesandmethods.blogspot.com/2011/05/lets-kill-intelligencecycle-original.html (accessed 3 September 2021). Willmetts, Simon. 2019. ‘The Cultural Turn in Intelligence Studies’. Intelligence and National Security 34 (6): 800–817. Zedner, Lucia. 2009. Security. London: Routledge.

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Towards a Reflexive Study of Intelligence Accountability Bernardino Leon-Reyes

Introduction Despite not holding a central position in the field of Intelligence Studies (IS), the analysis of intelligence oversight and accountability has received increasing attention in the past decade, particularly since the revelations by Edward Snowden of systematic unwarranted bulk collection by the Five Eyes and their European partners.1 The growing interest in existing literature for these issues has not, however, been accompanied by a detailed analysis of the ways in which IS has constructed the object of oversight. This discrepancy, it is argued, is explained by well-entrenched assumptions about oversight that create a common sense around its role and supposed objectives and avoids reaching a renewed understanding more autonomous from IS’ common beliefs and established truths. To fill this gap, this chapter outlines the agreements and common-sensical positions on oversight in IS, focusing on its two major journals, Intelligence and National Security and the International Journal of Intelligence and CounterIntelligence, as well as some of the most notable books in this sub-field. By taking a reflexive stance, I will look at the normative ideas that underpin these positions, demonstrating that while intelligence scholars present themselves as ’neutral’ knowledge producers, they are invested in extraordinarily political debates that translate into a specific form of oversight. As a result, while they are not professionals of intelligence in the strictest sense of the term, they play a role in shaping intelligence practice because, for some, they convey the functionalist agenda of IS and the interests of intelligence services. However, this literature review should not be read as a mere description of the state of the art; rather, its purpose is to contour the common sense of the discipline and provide a clear grasp of the positions in the academic field of oversight to foster a reflexive break with them. To that end, the last part of this chapter proposes a methodological way to move beyond these positions by mobilising Pierre Bourdieu’s reflexive sociology. It will first sketch some methodological indications on how to break with the three forms of common sense (the social unconscious, the disciplinary unconscious, and the academic unconscious), followed by an outline of what kind of reflexive sociology this DOI: 10.4324/9781003205463-3

Towards a Reflexive Study of Intelligence 31 break might enable. By doing so, this chapter contributes to this volume’s undertakings to offer alternative lines of enquiry into intelligence.

Mapping the Common Sense of Intelligence Oversight Scholarship This first part of this chapter describes and examines seven common-sensical arguments present in the literature on intelligence oversight: (1) the need of ‘balancing’ between democracy and security; (2) the need for access under strict secrecy; (3) the jurisdiction of oversight; (4) the acceptance of a raison d’État; (5) the progress of oversight; (6) overseeing both the legality and efficiency of the services; and (7) the need for neutrality. A Necessary ‘Balance’ The first thread covered in this literature review is the idea that a balance must be stricken between democracy (or its different facets, such as the rule of law, fundamental rights, due process, inter alia) and security policies (e.g., Weller 1999, p. 484; Farson 2000, p. 232; Bruneau 2001, p. 337; Glees and Davies 2006, p. 865; Müller-Wille 2006, p. 105; Shore 2006, p. 456; Walker 2006, p. 719; Schwarz 2007, p. 275; Hayez 2010, p. 482; Matei and Bruneau 2011, p. 657; Shelton 2011; Richards 2012, p. 761; Omand and Phythian 2013, p. 61; Podbregar et al. 2013, p. 117; Gonçalves 2014, p. 581; Matei 2014a, p. 635; Etzioni 2015, p. 101; Manjikian 2016, p. 689; Roy 2016, p. 115; Walsh and Miller 2016, p. 348; Jones 2018; Matei et al. 2018, p. 770; Obuobi 2018, p. 331; Petersen and Tjalve 2018, p. 2; Pulver and Medina 2018, p. 241). It is interesting that since early academic discussions on oversight, there has been a controversy around ‘how to reconcile the conduct of secret intelligence with the principles of democratic government’ (Karalekas 1983, p. 29). Should oversight force intelligence agencies to the strictest respect of the law or assist them in striking a balance between security and freedom? The literature tends to align with the latter: The control systems used for different national and international agencies stress different aspects, and display different attempts to find the right balance and ameliorate the tension between transparency and oversight on the one hand, and efficiency on the other, all of which are equally rational desires. (Müller-Wille 2006, p. 105 emphasis added) This compromise between constitutional rights with the conduct of security policies is presented as something even more urgent since 9/11: … the purpose of the defence intelligence programme is to ensure the proper balance between the acquisition and use of essential information

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Bernardino Leon-Reyes by the intelligence community, and the protection of statutory rights and those guaranteed by the US Constitution. The ability to maintain a proper balance between national security needs and constitutional freedoms is being challenged by threats highlighted by the terrorist attacks of 9/11. (Lotz 2007, p. 121 emphasis added)

Further, a central concept to understanding this discourse is that of ‘trust’, insofar as it shows the need to balance interests. According to Glees and Davies, the British Intelligence and Security Committee has to win ‘the trust of the secret agencies, and in particular their heads, in order to [be able to] “oversee” them’ (Glees and Davies 2006, p. 854). This need for trust suggests that oversight is in a subordinate position to the services (who can either provide or deny access to their workings) and a relation of companionship between both services. As noted by Schreier: a ‘critical issue of oversight is the balance between committee independence and criticism on the one hand, and the maintenance of a working relationship between the committee and the intelligence agencies on the other hand’ (Schreier 2007, p. 41). Consider also the following metaphor: ‘committee members serve paradoxically as both prosecutor and defense attorney for their only real client – the intelligence agencies themselves. […] The intelligence committees are heavily dependent on the agencies for the information required to execute their oversight responsibilities, creating strong incentives to establish cooperative relationships’ (Karalekas 1983, p. 27). This shows how oversight is not only situated in a position of inferiority but also presents legislative oversight as working for the services instead than for their constituency. In this vein, it is important to examine how this discourse is sometimes anthropomorphised as a desirable character of oversight committee members: … some members of Congress have been ‘guardians’, striking a reasonable balance between serving as partners of the intelligence agencies on Capitol Hill, on the one hand, and – through a persistent examination of budgets and operations – demanding competence and law-abiding behavior from these agencies, on the other. (Johnson 2008, p. 219 emphasis added mine) In his article, Johnson describes different stances that intelligence overseers can take in their duties. What becomes clear is that an ideal of moderation emerges through the notion of balance, presenting some actors as more legitimate than others. Indeed, some authors dismiss journalists for sometimes being ‘imbalanced and sensationalist’, showing a preference for lobbyists that are ‘able to position themselves as a reliable partner with whom officials may build more balanced policies’ (Puyvelde 2013, p. 142 emphasis added) while others praise ‘the balanced approach taken by the courts rather than the onesided advocacy of libertarians and authoritarians’ (Etzioni 2015, p. 103).

Towards a Reflexive Study of Intelligence 33 In contrast with these understandings, Peter Gill challenges the notion of balance in the following way: … intelligence can advance human security but the role of oversight remains to ensure that intelligence is conducted proportionately, not to seek some mythical ‘balance’ between rights and security. (Gill 2012, p. 218 emphasis added) …. the distinction between these categories requires some discussion of the common rhetorical device that invokes a ‘balance’ between rights and security. The only way to avoid sliding down the endless spiral implicit in Gary Marx’s comment above is to eschew the notion that there is any simple balance between security and liberty, for example, that we can maintain our security if we give up enough rights and liberties. (Gill 2009, p. 86) However, this take is quickly qualified: ‘therefore, if there is to be any “balancing” it must be conducted carefully’ (Gill 2009, p. 87), accepting in some instances its desirability. In other words, even authors critical of this discourse concede that sometimes it must be pursued. Access Under Secrecy Let us now move to a second agreement whereby overseers should have access to the documents and activities of the agencies, but always under absolute secrecy. In other words, there is a profoundly entrenched discourse in Intelligence Studies that presents overseers as both the guardians of the law and as the guardians of secrets. Consider, for instance, the following take: ‘after September 11, 2001, it became widely acknowledged that a legitimate requirement for secrecy exists’ (Winkler and Mevik 2005), which is sometimes presented as a virtue: ‘the committees have proven themselves reliable keepers of the nation’s highest secrets’ (Johnson 2005, p. 75). It is true that authors have criticised that oversight bodies have sometimes been left ‘outside the barrier of secrecy’ (Leigh 2012, p. 730) which has detrimental consequences for the control of the agencies. However, these calls for ‘further inclusion’ have never challenged the logic in which this barrier between secrets and a democratic constituency is predicated. What are the implications of this discourse for raising public awareness through, for instance, whistleblowing or a scandal? If, as we will see, the bulk of the literature agrees that scandals are the most important triggers for oversight, how are overseers themselves constrained to do their job if ‘going public’ is precluded? In one of the very few examinations of this problem, Kibble mentions that

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Bernardino Leon-Reyes … committee members are prevented from discussing the information because they received it in a classified form, even though it has become public knowledge. It also robs members of one of their oversight tools in the sense that they can, sometimes, make a difference ‘by just going public with something, by just raising hell with something, by just being a thorn in somebody’s side. Because you can’t go public, it takes a majority of this committee to get any action going, and I don’t think the intelligence community is unaware of that fact. (Kibbe 2010, p. 34)

Examining the implications of ruling out any legitimacy for intelligence overseers to ‘go public’ is beyond the scope of this chapter. Nonetheless, it is now worth raising the question: would such an oversight work as a guardian of democracy or as a guardian of secrecy? Jurisdiction and the Limits of Oversight A third agreement present in the discussions on oversight is the limits of its jurisdiction. What, if any, should the territorial restrictions of oversight be? Should it only protect its own citizens or the people within its territory? Or should it protect foreigners? While this is a contentious issue, a large part of the literature holds that a difference should be made between citizens and foreigners (for an excellent discussion on this, see Hoffmann, this volume). This difference is often presented as something a priori that is hardly debatable. For instance, let us look at what Müller-Wille (2006) affirms: … the legislation regulating intelligence services’ conduct primarily aims to protect the country’s own citizens. The law is therefore far more rigorous concerning agencies’ activities within its own national borders. For obvious reasons, the collection of intelligence abroad is not regulated with the same stringency. Intelligence agencies operating in other countries are normally trying to gather information that the state concerned tries to protect. National services are therefore expected to break laws of those foreign countries and infringe on civil liberties of people within other states. The political difficulties involved in enacting laws on how agencies are allowed to collect intelligence in other states and what laws in third countries they may break are evident. (Müller-Wille 2006, p. 107 emphasis added) In other words, the discrimination of non-citizens abroad is presented as something taken for granted. While the bulk of the literature is not as explicit, it largely shares this view. As an example, when Etzioni analyses potential frictions between PRISM and individual rights, he concludes that ‘the program that surveils foreigners overseas does not violate American laws, to the extent that it does not ensnare Americans’ (Etzioni 2015, p. 135).

Towards a Reflexive Study of Intelligence 35 These stances taken by intelligence scholars working on oversight would not necessarily be problematic if they did not clash directly with the position of courts. While examining these rulings in detail is beyond the scope of this chapter, it is important to bear in mind that, paradoxically, the positiontakings within IS are more conservative in the name of the law than the rulings of different courts, which have insisted on the need to extend rigorous oversight to foreigners (Dietrich 2016, p. 407; Hoffman, 2021 this volume). The Progress of Oversight Let us now consider the fourth agreement in the discipline: the assessment that oversight has progressed in the last 50 years. The literature describes this trend both in the US and Western Europe (see e.g., Gill 2009, p. 85, 2012, p. 217, 2020, p. 970; Hastedt 2017, p. 257) and beyond (see e.g., Boraz 2006, p. 93; Matei and Bruneau 2011, p. 357; Podbregar et al. 2013, p. 116; Matei 2014b, p. 620; Matei et al. 2018, p. 792; Obuobi 2018, p. 332; Bihar 2020, p. 238). Among these tales of optimism, we can distinguish two types of narratives. The first one is quasi-teleological, and it is predicated on the idea that oversight has improved constantly since the 1980s. For instance, consider Gill’s words: ‘After many years of benign neglect, states have, in the past quarter of a century, started to get to grips with the issue of oversight of intelligence agencies’ (Gill 2012, p. 218). The second one is more reticent of this discourse of linear progress, showing how there have been many changes following historical shifts. Among the scholars that have provided a more nuanced account of these transformations is Loch K. Johnson, who goes beyond the teleological narrative through his five ‘eras of Intelligence Accountability in Modern Times’, what he labels as the Era of Trust (1947–1974), the Era of Uneasy Partnership (1975–1986), the Era of Distrust (1987–1991), the Era of Partisan Advocacy (1992–2001), and the Era of Ambivalence (2002–2004)’ (Johnson 2004, p. 829). However, even with these different notions of progress, the common sense of the discipline describes oversight in optimistic terms, neglecting the serious undermining of these mechanisms by the presidencies of Ronald Reagan and George W. Bush, or the legalisation of bulk collection – instead of accountability – by European countries after the Snowden revelations (Tréguer 2017). Embracing the Raison d’État Moving from the need for secrecy, let us now consider another agreement: the embracement of the need for a raison d’État. The two most salient expressions of this agreement are (1) the necessity of any democracy to have intelligence services and (2) the acceptance of the third-party rule in international intelligence cooperation.

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Perhaps, the former seems evident to intelligence scholars. However, it is surprising that the possibility of the abolishment or defunding of intelligence services is never raised, contrasting with their peers in policing studies or criminology (see e.g., Vitale 2017; McDowell and Fernandez 2018). This presupposed necessity for intelligence is captured in Silver’s statement, where he affirms that It seems axiomatic that in order to maintain our democratic form of government we first of all must survive as a strong and independent political and economic system. This in turn implies the rationale for the existence of intelligence activities: the preservation of the nation’s security and defense. (Silver 1988, p. 8) The need for intelligence services is rarely acknowledged in oversight papers and is simply presumed. However, ironically enough, it is in investigations concerned about oversight in terms of political philosophy where intelligence scholars make this view explicit. Consider the following examples: If one accepts the premise that states need intelligence services, as well as the cyclical argument of public permissiveness, one can begin to see the need for intelligence oversight. (Shelton 2011, p. 25) It is the uncertainty arising from the fact that states can never be certain about other states’ intentions that explains the need for intelligence. (Phythian 2018, p. 504) These examples show how Intelligence Studies foreclose a priori any academic debates on the desirability of intelligence services. Moreover, there is another agreement that highlights the acceptance/ adoption of the raison d’État: the fact that the third-party rule is uncritically accepted. These arguments range from ignoring to endorsing the third-party rule (see e.g., Schreier 2007; Cayford et al. 2018) to descriptions that simply do not assess their problems (e.g., ‘national overseers lack authority outside their own country and, indeed, the “third party rule” inhibits oversight even within countries’ (Gill 2012, p. 2018), to normative takes. Consider for instance the following paragraph: … ‘the increase in surveillance provokes an increased concern of risk of abuse and privacy invasion’ entails protecting ‘against this risk, governments often introduce increased oversight. A law introduced in the Netherlands in 2017 is a case in point. It gives more surveillance powers to intelligence services, allowing them to [list of techniques] and to share collected, unanalyzed data with foreign intelligence services. To counterbalance this

Towards a Reflexive Study of Intelligence 37 increase in powers, the law also introduces more oversight [the list of agencies]’, none of which can overcome the third party rule. (Cayford et al. 2018, p. 999 emphasis added) Here, they present a limit based on the third-party doctrine without problematising this exception. This tacit acceptance is problematic, insofar as overseers are profoundly misplaced to carry out rigorous democratic control when many of the pieces of information they must have access to are protected under a veil of secrecy under the pretext of the third-party rule. Furthermore, while the acceptance of the third-party rule is usually either assumed or presented as a need, some authors go as far as championing it: If the government is interested in, and seeks the cooperation of, its intelligence services with the intelligence services of foreign countries, maintenance of secrecy of the origin and the content of information, intelligence, and assessments provided is essential. All documents and carriers of intelligence remain the property of the providing nation and cannot be further disseminated, nor declassified, without the originator’s permission. Therefore, a later transfer of these documents to the national archives is not advisable. The mere request to a foreign intelligence organisation for such permission, and for declassification, could easily foster an atmosphere of concern, not only over protecting sources and documents passed previously, but also whether it should continue to do so. Since one’s own intelligence information has to be made available to those foreign services under arrangements for intelligence sharing, maintenance of secrecy is equally expected from those foreign services. (Schreier 2007, p. 37) In short, these two stances represent an embracement by oversight scholars of a raison d’État. The Scope of Oversight: Legality and Efficiency The common sense in the literature seems to suggest that it remains important for oversight bodies to review not only the legality of intelligence operations but also their efficacy (i.e., whether they work) and efficiency (whether they use their resources well). As Gill explains, ‘the objective of intelligence oversight is to increase both its efficacy and propriety’ (Gill 2012, p. 217). This idea is also present in official reports: ‘examining whether intelligence services make efficient and effective use of the public funds allocated to them’ (Geneva Centre for the Democratic Control of Armed Forces (DCAF), 2011, p. 17). While this should not be necessarily undesirable, its effects might be problematic, insofar as oversight bodies could give more attention to this at the expense of the protection of rights. However, very few authors hint that this might be detrimental to the purpose of legality:

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Bernardino Leon-Reyes … if we take the notion of oversight to incorporate issues both of efficacy and propriety then we must include that the ISC has concerned itself almost entirely with the former to the exclusion of the latter. In a world in which intelligence issues have become even more important to both foreign and domestic policy making and where there are frequent assertions that rights must be sacrificed in the search for security, the ISC must adopt a much more proactive and rights-oriented approach. There is a danger that the ISC becomes a vehicle by which governments sideline more critical reviews by other parliamentary bodies. (Gill 2007, p. 33)

The Need for Neutrality Finally, another common-sensical narrative is the supposed ‘need for neutrality’. Marvin C. Ott dedicates a full investigation to this issue, where he affirms that ‘another basic requirement of effective oversight is that the committees must adopt a non-political approach to their responsibilities’ (Ott 2003, p. 79, emphasis added). For him, the fact that the US congress’ staff was ‘entirely apolitical’ (Ott 2003, p. 76) explained the success of oversight. This argument is also echoed in reference to European oversight: … there are dangers, however, in Parliamentary scrutiny. The security sector may be drawn into party political discrepancy – an immature approach by Parliamentarians may lead to sensationalism in public debate, and to wild accusations and conspiracy theories being aired under parliamentary privilege. (Leigh 2007, p. 13) In this sense, periods with weaker oversight are blamed on the lack of neutrality. Johnson (2008) hence describes the decade between 1992 and 2001 as the ‘partisan’ era, showing how it affected the control of the agencies negatively. Similarly, Peter Gill points out how in the 1960s–1970s, there was a fear that ‘legislatures would not be appropriate, for example, because of their tendency to partisanship and to leak information for political advantage’ (Gill 2009, p. 15). Furthermore, this analysis is also extended to civil society actors, particularly the media: Media channels might also be used by opposition politicians to stimulate public interest in a particular topic or to point to flaws and misconduct by government officials. The immediate danger, of course, lies in the fact that the media can be used or abused for political purposes, for example by causing political embarrassment. (Hillebrand 2012, p. 698)

Towards a Reflexive Study of Intelligence 39 In fact, some authors go as far as arguing that the ‘single most important step in achieving this centres on strengthening the leadership of the committees. That step begins with […] appointing intelligence committee chairs who are moderate, responsible, dedicated and committed to the notion of nonpartisan oversight’ (Kibbe 2010, pp. 41–46, emphasis added). The problem with these positions is that they neglect that many of the scandals that pushed for the introduction or improvement of oversight were inherently political. One can think, for instance, of the importance that partisan activism had in the establishment of the Church Committee, or the Snowden revelations. In addition, as Didier Bigo argues in his chapter (this volume), ‘the split between the violent action sublimated by the media and the simple collection and processing of “sensitive” information to help decision-making, has been central for the paradoxal depoliticisation of the so-called deep-state organisations’, showing how this depoliticisation has sometimes hindered important debates. In sum, we have seen that we can distinguish seven agreements: the need of ‘balancing’ between democracy and security (instead of strict legality); the need for access under secrecy, the nationally bounded jurisdiction of oversight; the acceptance of a certain raison d’État and of intelligence services; the progress of oversight; the need to oversee both the legality and efficiency of the services and the need for neutrality that depoliticises the debate. So, what can we do to move beyond these common-sensical positions?

Towards a Reflexive Understanding of Oversight In 1988, former CIA General Counsel Daniel B. Silver argued in a symposium organised by the Houston Journal of International Law that … intelligence oversight, correctly viewed, should be regarded as the totality of the measures external to the actual operational conduct of the affairs of the various intelligence agencies, which are undertaken to promote the attainment of a number of interrelated goals. These are, as suggested above: (i) to ensure the efficacy of intelligence operations; (ii) to protect the liberties of the American people; (iii) to provide the necessary degree of constitutional balance; and (iv) to provide for budgetary authorization and appropriations of funds by involving the Congress in the oversight process. (Silver, 1988, pp. 12–13) What is noteworthy about this text is that, more than 30 years later, it captures a good number of commonplaces present in the normative assessments of oversight maintained by intelligence scholars. Points (i) and (iv) underpin well the idea that oversight should focus on the efficiency and efficacy of intelligence, while point (ii) echoes a second debate around the jurisdiction of oversight, which Silver restricts to the liberties of the

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American People. Further, point (iii) puts forward the idea, still profoundly ingrained in the literature on oversight, that a balance between security and constitutional rights must be found. Most strikingly, however, is not the relative stability of these normative guidelines, but rather the extent of how these recommendations put forward by a top-ranked CIA employee in the 1980s are identical to those upheld by today’s intelligence scholars. As Ben Jaffel and Larsson argue in the introduction chapter of this volume, IS ‘has served as a source of recognition for intelligence services, their professionals and pracademics, rendering legitimate their claims to power and authority as well as their practices of obtaining and withholding “secret” information’ (Chapter 1, this volume). Furthermore, IS ‘has still not abandoned its functionalist framework of analysis, nor has it ever seriously called into question the long-term implications of the direct intervention of state actors in the production of knowledge on intelligence’ (Ibid.). To that end, this chapter proposes a reflexive engagement with intelligence oversight. The call for reflexivity of this chapter is twofold: on the one hand, the first part focuses methodologically on how to break with the received common sense, and on the other hand, the second part sketches the horizons that such a reflexive approach opens. Reflexivity as a Break with Common Sense In anthropological and sociological practice, reflexivity has been understood as an explicit effort to reflect on how one’s positionality might affect their research. However, while many efforts have focused on (oftentimes narcissistic) reflections on one’s fieldwork (Clifford and Marcus 2010), it is in the work of Pierre Bourdieu that we find the most interesting move to outline a productive and relational understanding of reflexivity, who understood it as a break with the received common sense. Bourdieu identifies three types of biases2 with which we must depart from: the social unconscious, the disciplinary unconscious, and the scholastic unconscious (Bourdieu and Wacquant 1992, pp. 39–41). The social unconscious is essential to challenge, as it has to do with the ‘doxic experience’ that stems from the position of the scholar in the social space. It is necessary here to clarify exactly what is meant by this: the life trajectories of individuals that shape their volume and relation between their economic, cultural, and social capitals (Bourdieu 1986), together with aspects of their identity such as race or gender, are integrated as a set of dispositions in the habitus of the researcher. In the same way that a white middle-class scholar and a working-class African American studying discrimination in the US (Emirbayer and Desmond 2012), or that the son of a University Professor and a first-generation student studying cultural taste (Bourdieu 2000), would arrive at their object of study with very different life experiences, we must be attentive to how each intelligence researcher arrive at their object of study with a specific life trajectory. In this sense,

Towards a Reflexive Study of Intelligence 41 intelligence scholars often share a set of characteristics: they come from an Anglo-American milieu, they are mostly men and mostly white. It would seem they hardly show any concerns with the violence – both physical and symbolic – (see Bigo, this volume) that the services project, or with mass surveillance, as they are people ‘that have nothing to hide’ (for an analysis of this subjectivity, see Harcourt 2015). The point of this observation is, by no means, to create a sense of ‘guilt’ among these researchers; instead, it is to understand how the habitus of a researcher might affect their research in order to take as much distance from it as possible. As Bonelli et al. (2019, p. 12) have argued, individuals that have a specific experience of being targeted by the services are frequently in no position of calling these practices into question. Hence, the first step of any engagement with oversight by intelligence scholars should be to make their own habitus explicit in order to take a step back from their own experience on the subject. So far, this section has focused on the break with the social unconscious that stems from our life experiences, which is the traditional understanding of reflexivity. However, Bourdieu’s contribution was to insist that, much more crucial than this habitus, it is the disciplinary unconscious that might preclude a correct construction of our object of study. Insofar as academia is a relatively autonomous space (Bourdieu 1990), the position that a scholar holds within the academic field is embedded in the ‘traditions and national particularities’, ‘obligatory problematics’, ‘habits of thought’, ‘shared beliefs and self-evidences’ and ‘specific forms of censorship’ of that discipline (Bourdieu 2004, p. 94). Building on this, Emirbayer and Desmond (2012, p. 582) argue that ‘one must try to understand and map out the common sense, or doxa, of each intellectual context’. This is precisely what the first section did, by charting the agreements and discrepancies on oversight in intelligence studies to contour the common sense of the discipline and provide a clear grasp of the positions in the academic field of oversight to foster a reflexive break with them. Therefore, this literature review should not be read (or at least not only) as a mere description of the state of the art. By the same token, the analysis of the normative implications of these stances is neither an exercise of accusing these scholars. Lastly, there is a scholastic unconscious, which Bourdieu called ‘theoreticism’. This has to do with a specific understanding of the logic that end up overlooking social practices. In order to take distance from this way of looking at the world, Bourdieu introduced the notion of strategy as an alternative to rules – the dominant terminology in sociology and anthropology at the time (Lamaison and Bourdieu 1986, p. 111) – in order to avoid taking ‘the things of logic for the logic of things’. This notion allows us to understand how social agents do not blindly follow legal and social rules but have a sense of the game whereby they act playing by – but also within – these rules for their benefit. Adopting such a stance would entail shifting the focus from the description of formal institutional oversight mechanisms to studying oversight as a social practice. This represents a significant change,

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as it breaks with numerous assumptions in the literature. For instance, it highlights the ephemeral and fragile character of institutional oversight, which is only triggered by scandals, what some authors, following McCubbins and Schwartz’s (1984) metaphor, have called ‘fire-fighting’ oversight (Johnson 2008, p. 210; Matei 2014b, p. 86; Hastedt 2017, p. 717; Cahane 2021, p. 12). A focus on social practices would therefore show how everyday bottom-up practices coming from civil society coalitions (in particular by activists and journalists) represent the main locus of accountability, even over institutional overseers. Reflexivity as Reflexive Sociology Let us now move into the avenues that reflexivity opens. As Wacquant points out (Bourdieu and Wacquant 1992, p. 47), epistemic reflexivity opens the possibility of overcoming sterile oppositions which are dominant in the social sciences. Any serious engagement with intelligence oversight – and intelligence more broadly –must overcome sterile antinomies such as qualitative and quantitative, critical and orthodox, or historicism and rationalism (Bourdieu 1988, p. 784). Among the antinomies that intelligence studies will have to grapple with is that of ‘mainstream’ studies and ‘critical’ studies. Any serious attempt to study intelligence and/or democratic practice must combine qualitative and quantitative methods to have a more rigorous grasp of social life. Nevertheless, perhaps less intuitively, as scholars of intelligence, we must be wary of calls for ‘critical intelligence’ that reproduce the same mistakes as Critical International Relations or Critical Terrorism Studies. As Bourdieu and Wacquant (1992, p. 192) put it, ‘the blindness of intellectuals to the social forces that rule the intellectual field, and therefore their practices, is what explains how, collectively, often under quite radical airs, the intelligentsia contributes to the perpetuation of dominant forces.’ In addition, a reflexive sociology that focuses on everyday oversight practices, beyond that of institutional overseers, would imply focusing on the processes of (de)legitimation of the services vis-à-vis intelligence scandals. Thus, our focus as scholars should be to call into question the symbolic power that security bureaucracies, intelligence agencies and professionals of politics exercise through the reproduction of secrecy and through state violence. Symbolic power refers here specifically to: … an aspect of most forms of power as they are routinely deployed in social life. For in the routine flow of day-to-day life, power is seldom exercised as overt physical force: instead, it is transmuted into a symbolic form, and thereby endowed with a kind of legitimacy that it would not otherwise have. Bourdieu expresses this point by saying that symbolic power is an ‘invisible’ power which is ‘misrecognised’ as such and thereby ‘recognised’ as legitimate. (Thompson, in Bourdieu et al. 1999, p. 23, emphasis added)

Towards a Reflexive Study of Intelligence 43 Bourdieu expresses this point by saying that symbolic power is an ‘invisible’ power which is ‘misrecognised’ as such and thereby ‘recognised’ as legitimate. In this sense, state bureaucracies are constituted not only through the accumulation of material resources but also through the accumulation of symbolic resources (Bourdieu 2014, pp. 74–77). And because we know that this kind of symbolic resource is produced mainly by ‘a body of specialists and, more precisely, by a relatively autonomous field of production and circulation’ (Bourdieu et al. 1999, p. 168) which refers to the academic field, any reflexive sociology of intelligence oversight should focus on this process of (de)legitimation. The purpose of this section was to propose a way beyond the limited common-sensical views dominant in IS. Through Bourdieu’s reflexive sociology, a triple break is possible. This, in turn, opens the possibility of a study of oversight capable of breaking with the symbolic power of state bureaucracies and intelligence agencies.

Conclusion This chapter sought to advance a reflexive approach to intelligence oversight. As we have seen, this reflexivity can only come from a break with the received common sense in IS. To that end, the first section has mapped the seven common-sensical positions on oversight taken by intelligence scholars: the need of ‘balancing’ between democracy and security, the need for access under strict secrecy, the exclusion of foreigners in oversight, the acceptance of a raison d’État (through the acceptance of the need of intelligence and the third-party doctrine). All this is followed by the progress of oversight, the need of overseeing both the legality and efficiency of the services, and finally the diffusion of the state responsibility and the need for neutrality. The second section outlined how Pierre Bourdieu reflexive sociology might offer a methodological way beyond these positions. First, it delved into the social unconscious, the disciplinary unconscious, and the scholastic unconscious as the necessary three breaks with the common sense. In this sense, it was argued that the literature review in the first section should be read as a step towards the second break, i.e., the disciplinary unconscious. Second, it showed some of the intellectual avenues that a reflexive engagement with oversight can open: an understanding of oversight as a practice, and a refocus on the importance of symbolic power and processes of (de) legitimisation of intelligence agencies and their overseers.

Notes 1 See also the Introduction chapter in this volume. 2 Here, I borrow Emirbayer and Desmond’s (2012) nomenclature.

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References Bihar, A. M. 2020. ‘Uruguay’s Attempt at Intelligence Oversight’. International Journal of Intelligence and CounterIntelligence 33 (2): 214–247. 10.1080/08850607.2 019.1663701 Bonelli, L., Rayner, H., and Voutat, B. 2019. ‘Contestations et (re)légitimations du renseignement en démocratie: Introduction’. Cultures et Conflits 114–115: 7–28. 10.4000/conflits.20889 Boraz, S. C. 2006. ‘Establishing Democratic Control of Intelligence in Colombia’. International Journal of Intelligence and CounterIntelligence 19 (1): 84–109. 10.1080/ 08850600500177168 Bourdieu, P. 1986. ‘The Forms of Capital’. In J. G. Richardson, ed. Handbook of Theory and Research for the Sociology of Education. Westport, CT: Greenwood, pp. 241–258. Bourdieu, P. 1988. ‘Vive la crise!: For Heterodoxy in Social Science’. Theory and Society 17 (5): 773–787. 10.1007/BF00162619 Bourdieu, P. 1990. Homo Academicus, 1st edition. Translated by P. Collier. Stanford, CA: Stanford University Press. Bourdieu, P. 1999. Language and Symbolic Power, 7th edition, J. Thompson, ed. Translated by G. Raymond and M. Adamson. Cambridge, MA: Harvard University Press. Bourdieu, P. 2000. Distinction: A Social Critique of the Judgement of Taste. Reprint 1984 edition. Cambridge, MA: Harvard University Press. Bourdieu, P. 2004. Science of Science and Reflexivity, 1st edition. Translated by R. Nice. Chicago, IL: University of Chicago Press. Bourdieu, P. 2014. On the State: Lectures at the Collège de France, 1989–1992. P. Champagne, et al., eds. Translated by D. Fernbach. Cambridge Malden, MA: Polity. Bourdieu, P., and Wacquant, L. J. D. 1992. An Invitation to Reflexive Sociology. Cambridge, MA: Polity Press. Bruneau, T. C. 2001. ‘Controlling Intelligence in New Democracies’. International Journal of Intelligence and CounterIntelligence 14 (3): 323–341. 10.1080/0885 0600152386837 Cahane, A. 2021. ‘The (Missed) Israeli Snowden Moment?’. International Journal of Intelligence and CounterIntelligence 34 (4): 694–717(24). 10.1080/08850607.2020.1 838902 Cayford, M., Pieters, W., and Hijzen, C. 2018. ‘Plots, Murders, and Money: Oversight Bodies Evaluating the Effectiveness of Surveillance Technology’. Intelligence and National Security 33 (7): 999–1021. 10.1080/02684527.2018.14 87159 Clifford, J., and Marcus, G. E. eds. 2010. Writing Culture: The Poetics and Politics of Ethnography, 2nd edition, 25th Anniversary. Berkeley, Los Angeles, London: University of California Press. Dietrich, J.-H. 2016. ‘Of Toothless Windbags, Blind Guardians and Blunt Swords: The Ongoing Controversy about the Reform of Intelligence Services Oversight in Germany’. Intelligence and National Security 31 (3): 397–415. 10.1080/02684527.2 015.1017246 Emirbayer, M., and Desmond, M. 2012. ‘Race and Reflexivity’. Ethnic and Racial Studies 35 (4): 574–599. 10.1080/01419870.2011.606910

Towards a Reflexive Study of Intelligence 45 Etzioni, A. 2015. ‘NSA: National Security vs. Individual Rights’. Intelligence and National Security 30 (1): 100–136. 10.1080/02684527.2013.867221 Farson, S. 2000. ‘Parliament and Its Servants: Their Role in Scrutinizing Canadian Intelligence’. Intelligence and National Security 15 (2): 225–258. 10.1080/0268452 0008432609 Frederick, A. O. S. 2007. ‘The Church Committee and a New Era of Intelligence Oversight’. Intelligence and National Security 22 (2): 270–297. 10.1080/0268452 0701303881 Gill, P. 2009. ‘Security Intelligence and Human Rights: Illuminating the “Heart of Darkness”?’ Intelligence and National Security 24 (1): 78–102. 10.1080/0268452 0902756929 Gill, P. 2007. ‘Evaluating intelligence oversight committees: The UK Intelligence and Security Committee and the ‘war on terror’’. Intelligence and National Security 22 (1): 14–37. 10.1080/02684520701200756. Gill, P. 2012. ‘Intelligence, Threat, Risk and the Challenge of Oversight’. Intelligence and National Security 27 (2): 206–222. 10.1080/02684527.2012.661643 Gill, P. 2020. ‘Of Intelligence Oversight and the Challenge of Surveillance Corporatism’. Intelligence and National Security 35 (7): 970–989. 10.1080/0268452 7.2020.1783875 Glees, A., and Davies, P. H. J. 2006. ‘Intelligence, Iraq and the Limits of Legislative Accountability During Political Crisis’. Intelligence and National Security 21 (5): 848–883. 10.1080/02684520600957787 Gonçalves, J. B. 2014. ‘The Spies Who Came from the Tropics: Intelligence Services and Democracy in Brazil’. Intelligence and National Security 29 (4): 581–599. 10.1 080/02684527.2014.915178 Harcourt, B. E. 2015. Exposed: Desire and Disobedience in the Digital Age. Cambridge, MA: Harvard University Press. Hastedt, G. 2017. ‘The CIA and Congressional Oversight: Learning and Forgetting Lessons’. Intelligence and National Security 32 (6): 710–724. 10.1080/02684527.201 6.1275137 Hayez, P. 2010. ‘“Renseignement”: The New French Intelligence Policy’. International Journal of Intelligence and CounterIntelligence 23 (3): 474–486. 10.1 080/08850600903565928 Hillebrand, C. 2012. ‘The Role of News Media in Intelligence Oversight’. Intelligence and National Security 27 (5): 689–706. 10.1080/02684527.2012.708521. Johnson, L. K. 2004. ‘The Contemporary Presidency: Presidents, Lawmakers, and Spies: Intelligence Accountability in the United States’. Presidential Studies Quarterly 34 (4): 828–837. 10.1111/j.1741-5705.2004.00226.x Johnson, L. K. 2005. ‘Governing in the Absence of Angels: On the Practice of Intelligence Accountability in the United States’. In Born, H., Johnson, L. K., and Leigh, I. eds. Who’s Watching the Spies?: Establishing Intelligence Service Accountability. Washington, DC: Potomac Books, pp. 57–78. Johnson, L. K. 2008. ‘The Church Committee Investigation of 1975 and the Evolution of Modern Intelligence Accountability’. Intelligence and National Security 23 (2): 198–125. 10.1080/02684520801977337 Jones, D. M. 2018. ‘Intelligence and the Management of National Security: The Post 9/11 Evolution of an Australian National Security Community’. Intelligence and National Security 33 (1): 1–20. 10.1080/02684527.2016.1259796

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Karalekas, A. 1983. ‘Intelligence Oversight: Has Anything Changed?’ The Washington Quarterly 6 (3): 22–31. 10.1080/01636608309451517 Kibbe, J. 2010. ‘Congressional Oversight of Intelligence: Is the Solution Part of the Problem?’. Intelligence and National Security 25 (1): 24–49. 10.1080/02684521003588104 Leigh, I. 2012. ‘Rebalancing Rights and National Security: Reforming UK Intelligence Oversight a Decade after 9/11’. Intelligence and National Security 27(5): 722–738. 10.1080/02684527.2012.708525. Leigh, I. 2007. The accountability of security and intelligence agencies. In Handbook of Intelligence Studies (pp. 85–99). Routledge. https://www.defence.lk/upload/ebooks/ (Critical%20Concepts%20in%20Military,%20Strategic,%20and%20Security%20Studies) %20Loch%20K.%20Johnson‐Intelligence%20(Critical%20Concepts%20in%20Military, %20Strategic,%20and%20Security%20Studies)‐Routledge%20(2006).pdf#page=86 Lotz, G. B. 2007. ‘The Need for Efficient and Legitimate Intelligence’. In M. Caparini, and H. Born. eds. Democratic Control of Intelligence Services: Containing Rogue Elephants. Routledge, pp. 109–124. 10.4324/9781315576442-9 Manjikian, M. 2016. ‘Two Types of Intelligence Community Accountability: Turf Wars and Identity Narratives’. Intelligence and National Security 31 (5): 686–698. 10.1080/02684527.2015.1077627 Matei, F. C. 2014a. ‘Balancing Democratic Civilian Control with Effectiveness of Intelligence in Romania: Lessons Learned and Best/Worst Practices Before and After NATO and EU Integration’. Intelligence and National Security 29 (4): 619–637. 10.1080/02684527.2014.915180 Matei, F. C. 2014b. ‘The Media’s Role in Intelligence Democratization’. International Journal of Intelligence and CounterIntelligence 27 (1): 73–108. 10.1 080/08850607.2014.842806 Matei, F. C., and Bruneau, T. C. 2011. ‘Policymakers and Intelligence Reform in the New Democracies’. International Journal of Intelligence and CounterIntelligence 24 (4): 656–691. 10.1080/08850607.2011.598784 Matei, F. C., García , de Castro A., and Halladay, C. C. 2018. ‘On Balance: Intelligence Democratization in Post-Franco Spain’. International Journal of Intelligence and CounterIntelligence 31 (4): 769–804. 10.1080/08850607.2018.1466588 McCubbins, M. D., and Schwartz, T. 1984. ‘Congressional Oversight Overlooked: Police Patrols versus Fire Alarms’. American Journal of Political Science 28 (1): 165–179. 10.2307/2110792 McDowell, M. G., and Fernandez, L. A. 2018. ‘“Disband, Disempower, and Disarm”: Amplifying the Theory and Practice of Police Abolition’. Critical Criminology 26 (3): 373–391. 10.1007/s10612-018-9400-4 Müller-Wille, B. 2006. ‘Improving the Democratic Accountability of EU Intelligence’. Intelligence and National Security 21 (1): 100–128. 10.1080/02684520600568394 Obuobi, P. P. 2018. ‘Evaluating Ghana’s Intelligence Oversight Regime’. International Journal of Intelligence and CounterIntelligence 31 (2): 312–341. 10.1 080/08850607.2017.1375841 Omand, S. D., and Phythian, M. 2013. ‘Ethics and Intelligence: A Debate’. International Journal of Intelligence and CounterIntelligence 26 (1): 38–63. 10.1080/ 08850607.2012.705186 Ott, M. C. 2003. ‘Partisanship and the Decline of Intelligence Oversight’. International Journal of Intelligence and CounterIntelligence 16 (1): 69–94. 10.1080/ 713830378

Towards a Reflexive Study of Intelligence 47 Petersen, K. L., and Tjalve, V. S. 2018. ‘Intelligence Expertise in the Age of Information Sharing: Public–Private “Collection” and Its Challenges to Democratic Control and Accountability’. Intelligence and National Security 33 (1): 21–35. 10.1080/02684527.2017.1316956 Phythian, M. 2018. ‘Intelligence and the Liberal Conscience’. Intelligence and National Security 33 (4): 502–516. 10.1080/02684527.2018.1456637 Podbregar, M. F., Anžič, A., and Podbregar, I. 2013. ‘Slovenia’s Intelligence Oversight and Audit Experience’. International Journal of Intelligence and CounterIntelligence 26 (1): 115–129. 10.1080/08850607.2013.732442 Pulver, A., and Medina, R. M. 2018. ‘A Review of Security and Privacy Concerns in Digital Intelligence Collection’. Intelligence and National Security 33 (2): 241–256. 10.1080/02684527.2017.1342929 Puyvelde, D. V. 2013. ‘Intelligence Accountability and the Role of Public Interest Groups in the United States’. Intelligence and National Security 28 (2): 139–158. 10.1080/02684527.2012.735078 Richards, J. 2012. ‘Intelligence Dilemma? Contemporary Counter-terrorism in a Liberal Democracy’. Intelligence and National Security 27 (5): 761–780. 10.1080/02 684527.2012.708528 Roy, J. 2016. ‘Secrecy, Security and Digital Literacy in an Era of Meta-Data: Why the Canadian Westminster Model Falls Short’. Intelligence and National Security 31 (1): 95–117. 10.1080/02684527.2014.941250 Schreier, F. 2007. ‘The Need for Efficient and Legitimate Intelligence’. In H. Born , and M. Caparini. eds. The Need for Efficient and Legitimate Intelligence. Routledge, pp. 47–66. 10.4324/9781315576442-9 Shelton, A. M. 2011. ‘Framing the Oxymoron: A New Paradigm for Intelligence Ethics’. Intelligence and National Security 26 (1): 23–45. 10.1080/02684527.2011.55 6358 Shore, J. J. M. 2006. ‘Intelligence Review and Oversight in Post-9/11 Canada’. International Journal of Intelligence and CounterIntelligence 19 (3): 456–479. 10.1 080/08850600600656350 Silver, D. B. 1988. ‘The Uses and Misuses of Intelligence Oversight’. Hous. J. Int’l L, 11: 7. http://www.hjil.org/articles/hjil‐11‐1‐silver.pdf Tréguer, F. 2017. ‘Intelligence Reform and the Snowden Paradox: The Case of France’. Media and Communication 5 (1): 17–28. 10.17645/mac.v5i1.821 Vitale, A. S. 2017. The End of Policing. Verso. Walker, M. B. 2006. ‘Reforming Congressional Oversight of U.S. Intelligence’. International Journal of Intelligence and CounterIntelligence 19 (4): 702–720. 10.1 080/08850600500483806 Walsh, P. F., and Miller, S. 2016. ‘Rethinking “Five Eyes” Security Intelligence Collection Policies and Practice Post Snowden’. Intelligence and National Security 31 (3): 345–368. 10.1080/02684527.2014.998436 Weller, G. R. 1999. ‘Oversight of Australia’s Intelligence Services’. International Journal of Intelligence and CounterIntelligence 12 (4): 484–503. 10.1080/0885 06099305016 Winkler, T., and Mevik, L. 2005. ‘Foreword’. In H. Born, L. K. Johnson, and I. Leigh, eds. Who’s Watching the Spies? Establishing Intelligence Service Accountability. Washington, DC: Potomac Books, pp. ix–x.

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Tracing Pre-emptive IntelligenceLed Policing (ILP): Immigration, Classification Struggles, and the Expansion of Intelligence Logics in British Policing Liam McVay

Introduction Intelligence has been a peripheral function of British policing since the creation of the Irish Constabulary in 1822 (Lowe and Malcolm 1992). Political policing or ‘high policing’ (Brodeur 1983) too has played an important role in the pacification of British colonies and the suppression of domestic security threats (Brogden 1987). At the local level, the gathering of criminal intelligence, stakeouts, tip-offs, and the use of informants, is a ubiquitous and socially accepted part of the day-to-day apprehension and conviction of criminals (Alach 2011, James 2013). However, today’s Intelligence-Led Policing (ILP) has come to represent a departure from this reactive model of information gathering guided by individual lawbreaking. Rather, ILP ruptures this traditional reasoning and denotes a broader engagement with pre-emptive intelligence practices informed by opaque assessments of suspect populations, locations, and signifiers that come to be associated with criminality (McCulloch and Wilson 2015). Intelligence has become valuable in its own right, for its potential future worth, as a bargaining chip in inter-agency struggles, and, ultimately, as a powerful form of capital (Ferguson 2016). Consequently, police bodies frequently operationalise and execute strategies typically associated with state intelligence agencies, dramatically expanding the scope and personnel involved in intelligence operations (see also Fitzgibbon 2007, McCulloch and Wilson 2015: 97). Previously peripheral actors in domestic law enforcement such as customs officers, border guards, port authorities, transport police, and tax authorities now play a crucial role in intelligence collection and analysis as they are accorded the unenviable task of maintaining near-complete knowledge pertaining to the mitigation of risk. Instead of facilely reducing the proliferation of these new intelligence capabilities to an inevitable or rational response to an emerging threat, this chapter investigates the sociogenesis of ILP strategies in the police forces of the United Kingdom, centring the conflicts both between and within the field of politics and policing. In attending to the social forces behind the expansion of pre-emptive DOI: 10.4324/9781003205463-4

Tracing Pre-emptive ILP 49 logics in law enforcement, this chapter seeks to move beyond the functionalist rhetoric and confining limitations pervasive in both Intelligence Studies (IS) and Police Studies (PS). While IS does not adequately acknowledge the role of the police in intelligence, dominant voices within PS continue to explain strategic shifts as a direct reaction to evolving threats. However, this chapter argues that the evolution of intelligence strategy is contingent on the social relations of actors with police and politics. Through an examination of political turmoil surrounding decolonisation and longstanding antagonisms within British policing, it will be argued that symbolic struggles between politicians and amongst security elites shaped the development of new policing practices, namely, the imposition of pre-emptive intelligence tactics on marginalised migrant communities living in the United Kingdom. The argument is illuminated by exploring the struggles around the creation of the United Kingdom’s first conspicuously ILP unit, the Central Drugs and Illegal Immigration Intelligence Unit (CDIIIU). To grasp the social dynamics at play, this chapter grounds its analysis in a research framework inspired by the work of Pierre Bourdieu. With a sociological approach like this, we no longer have artificial boundaries between crafts and disciplines but a line of enquiry that travels across practices, relationships, and the struggles constitutive of ILP. In so doing, this chapter thus contributes to the volume’s ambitions to reformulate the purview of intelligence scholarship by moving beyond its pre-set ontological boundaries. This research is supported by an analysis of recently declassified internal memos, minutes, and letters between Home Office and policing staff. These documents are analytically valuable for several reasons. First, they are informal communications between practitioners, free from the pressures of government oversight or public scrutiny that could otherwise provoke a cautiousness or sterilisation of language. Second, many of the documents include informal notetaking, comments, and criticisms on official publications, exposing the process of internal mediation within different institutions. Finally, the archives allow the records to be analysed in relation to each other and explore the actors’ relationships on paper. How did pre-emptive intelligence logics emerge in the domestic police forces of the United Kingdom? To answer this question, the first section interrogates IS and PS and introduces the benefits of mobilising Pierre Bourdieu to unearth the social mechanisms making up ILP. The second section explores how the expansion of the conception of British citizenship in 1948 engendered conflicts over the extent to which political narrative would represent a departure from the commonwealth model and, consequently, redefine notions of British national identity. Subsequently, these struggles will be linked to the re-imposition of traditional associations between national boundaries and a congruent polity and culture which served to exclude migrant populations from substantive citizenship, redefining migrant communities as foreign entities and legitimising the implementation of new intelligence practices. The third section examines the interaction

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between these political and social changes and efforts to create new centralised intelligence units. It will argue that policing elites were not passive recipients of the imposition of these practices but rather were active in pursuing the inclusion of new capacities for the ‘internal monitoring’ of migrant populations such as warrantless arrest, indiscriminate surveillance, and mass intelligence collection. Against this backdrop, the last section analyses the development of the CDIIIU which is explored in relation to institutional antagonisms within the field of security.

Interrogating IS and PS To those acquainted with the world of IS, the turn towards pre-emptive data collection in policing should seem familiar. The mass surveillance of domestic citizens uncovered in the Snowden revelations has exposed the extent of surveillance programs conducted by rapidly expanding national SIGINT services. In counter-terrorism, too, the behaviour of law enforcement and intelligence bodies is not only analogous but also regularly involves the active coordination of operations around shared targets. Even decidedly domestic policing issues such as organised crime have attracted the attention of intelligence institutions. For example, in 1995, the head of the Security Service, Stella Remington, sought to explicate institutional interests by reframing organised crime as a phenomenon demanding the engagement of traditional intelligence bodies through ‘the same strategic approach, the same investigative techniques’ (Gill 1996). Yet, despite the best efforts of a notable few (Gill 1998, Phythian 2008, Ben Jaffel 2019), IS scholars seem unwilling to appreciate the role of police bodies as intelligence actors or their position within the security intelligence structures of western states. Indeed, ‘intelligence research and its theoretical arguments have yet to be fully incorporated or at the very least compared and contrasted with law enforcement intelligence in any meaningful sense’ (Coyne 2014). Consequently, the study of police intelligence has developed elsewhere, relying on the excellent research conducted by scholars of criminology (Bowling and Kopf 2016, Deflem 2000, 2002, Chan 2001, Cope 2004, McCulloch et al. 2015, Reiner 2010, Sheptycki 1998, 2000) and International Relations (Bigo 2002, Bonelli 2017). This notable absence in IS literature is due, at least in part, to the axiomatic focus that Sheptycki terms the ‘national security paradigm’ (2009: 166–168). Dedication to this borrowed epistemology has reproduced synthetic divisions between the individual, state, and international, demarcating topics worthy of IS scholarship. The legitimate, which is concerned with the protection of the state and external threats, is contrasted, and separated from the sub-state or domestic. By extension, the same logics stimulate the artificial partitioning of criminology, political science, and international relations, further cementing intelligence research as an insular appendage to the broader field of IR. Unfortunately, events or practices that infringe on these divisions are still habitually dismissed, excluding IS scholars from

Tracing Pre-emptive ILP 51 exploring new areas of intelligence practice, especially those that lie awkwardly in the grey area between the domestic and international (see Ben Jaffel 2019, Bigo 2013, 2016). As IS literature has largely ignored the development of police intelligence, we may instead turn to PS and critical criminology for some preliminary answers. Traditional approaches in PS deploy functionalist analysis that highlights the propagative influence of new technologically sophisticated transnational criminal threats, and the power of reactive policymakers, enquiries, and influential audits in modifying overarching police strategy (Ratcliffe 2002, 2008, 2016). For example, the creation of the New Public Management (NPM), the National Intelligence Model (NIM), and the 1993 audit report (Audit Commission: 1993) are understood as determining factors in changing policing practice or as sensible reactions to developing threats (John and Maguire 2004). Alternatively, critical criminologists have explored the impact of broad societal shifts on police practice, specifically the rise of the ‘risk society’ in which risk management has become the primary focus of state actors (Ericson and Haggerty 1997 2000, Pickering and McCulloch 2012, Sheptycki 1997, Zedner 2007). They suggest that market liberalisation has shifted the primary role of the police to that of information gatherers, ‘crime control [has been] displaced by surveillance [and] the efficient production of knowledge useful in the administration of suspect populations’ (Ericson and Haggerty 1997: 139). Consequently, as surveillance and data acquisition are the most potent tools available to police, strategic deficiencies are addressed through the introduction of more ‘effective’ technologies of surveillance, data storage, and analysis (Sheptycki 1997: 327). In these contexts, policy recommendations are recognised not as definitive turning points but rather as notable punctuations, part of a longstanding transition towards the goal of total threat awareness. Equally, even if watershed moments such as the end of the Cold War or 9/11 feel intuitively significant, in these contexts, they serve only to justify the expansion and redeployment of previously established practices. This chapter attempts to offer a different narrative on the adoption of intelligence in policing through a historical analysis that calls upon a sociological framework developed in the work of Pierre Bourdieu. Primarily, this will involve analysing the emergence of intelligence strategy along practical lines, exploring the positions of actors in politics and the police and their inter-personal and institutional struggles. Bourdieu’s analytical toolkit is well suited for such a task, as his emphasis on the study of practice removes synthetic divisions between disciplines and areas of research and, in turn, allows for the unimpeded explication of the relations of actors in the field of policing and politics. More specifically, Bourdieu allows for the analysis of the social forces that guide actors in their day-to-day, shedding light on how changes in policing strategy are formed from the ground up, from the relations and struggles symptomatic of the occupation and interaction of different social fields (Ober and Sakdapolrak 2017). These ‘fields’

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denote a social arena in which actors compete to accumulate power by amassing and exchanging different kinds of social capital. Struggles over particular resources and forms of capital engender fluctuations in the relations and practices of actors in fields. Incumbents (dominant actors) attempt to protect their privileges while insurgents (subservient actors) aim to compete by altering the field’s composition. Bourdieu tells us that the structure of these positions, and the struggles over different forms of capital that attempt to change it, guide the practice of actors. As we will explore later, the struggle of incumbent and insurgent actors in the field of policing and politics was a key determinant in the creation of new pre-emptive intelligence bodies. Bourdieu also provides a supplementary theory to aid in our analysis of these social struggles. His concept of classification struggles highlights how social actors use signifiers to construct social objects and accumulate symbolic capital. He suggests that the struggle around the use of these signifiers is central in the creation of different ‘classes’, such as race, sex, and gender (Bourdieu 2018). These struggles have ‘the power to make people see and believe, to get them to know and recognise, to impose the legitimate definition of the divisions of the social world and, thereby, to make and unmake groups’ (Bourdieu and Wacquant 1992: 221). They are capable of redrawing social dynamics and creating new social groups. They ‘contribute to producing what they apparently [only] describe or designate’ (Bourdieu 1984: 479). Ergo, those who can impose their dominant representations of reclassified groups are able to accumulate political, economic, and informational capital to secure or improve their social position. The next section operationalises this understanding to outline how the symbolic struggle over the recategorisation of migrant populations shaped and was shaped by, prominent actors in policing and politics, engendering conflict around the development of new pre-emptive immigration intelligence strategies.

A Nation in Crisis and the Advent of Classification Struggles The British reaction to the Empire’s decline is often portrayed as quiet and reserved, a dignified resignation. In fact, decolonialization is more accurately characterised as a protracted crisis in which the borders and citizenry of the state were redrawn and reconceptualised (Ward 2001). This transformation created winners and losers in politics and policing as narratives promoting the revitalisation of the commonwealth were subsumed by a rhetoric of increasing insularity and a growing emphasis on relations within the nascent European Economic Community. At stake in this conflict were the legal and social status of commonwealth migrants who were reframed as citizens, aliens, and finally, illegal immigrants who were stripped of their substantive citizenship and subject to new pre-emptive intelligence techniques. After the end of the Second World War, the Empire’s decline provoked difficult questions around the future of British power in the world and the

Tracing Pre-emptive ILP 53 form of the new British nation-state. At the time, professionals of politics were aligned in supporting policies that reinvigorated relationships with the recently emancipated former colonies and staved off American domination or further European integration (Ricci 2016). In 1948, Clement Attlee’s British Nationality Act gave residents of the Empire the legal right to live and work in Britain. The act divided British citizenship into two camps: citizens of former colonies and citizens of the United Kingdom and the commonwealth, both of which held the right to enter a life in the United Kingdom without restriction. Migrants were considered citizens of the Empire, irrespective of racial and cultural heritage, as part of a broader colonial brotherhood (Doty 1996: 244). At its core, the sentiment behind the Nationality act can be ascribed to what Doty has termed the ‘commonwealth ideal’ which presented post-empire Britain as the benevolent centre of the new free commonwealth (ibid.). However, as it became clear that the bulk of the migratory population was from the ‘new commonwealth’ and not the predominantly white ‘old dominions’, public enthusiasms for colonial unity began to fade, provoking a political struggle that brought into question the notion of the British citizen (Consterdine and Hampshire 2014). By the early 1960s, discourse on the populist right had restructured around the opposition of the ‘belongers’ and ‘non-belongers’ (Hampshire 2005). In this dichotomy, new commonwealth migrants were depicted as falling short of the standards of Britishness reserved for British nationals; they were of different ‘blood’, ‘family’, or ‘stock’, polluting the homogeneity of the British people (Ward 2001: 186). Such language was symptomatic of a return towards a traditional conception of the nation-state and an allegiance to a ‘little England’, in which the state territory mirrored the boundaries of a nation with a congruent polity and culture. The opposition between these two visions of the nation is what Gorski has described as ‘nation-ization struggles’ (Gorski 2013). In these struggles, actors come into conflict over the appropriate definition of the nation and, subsequently, the extent to which transformations will determine political, social, and cultural identities (ibid.). Crucially, these struggles involve the communication of symbolic and practical meaning to other actors. Signals are encoded and then understood by recipients depending on their relative social positions and the logics of their field, allowing for diverse interpretations, reactions, and courses of action. What is received as a sensible reaffirmation of group identity for some will appear as a direct threat to others (ibid.). Indeed, the effects of struggles around the new conception of the British nation-state extended further than the political field. Trade unions, policing, political activists, and public services were especially involved and held stakes in their outcomes which were understood according to the specific interests of each actor. For example, trade unions opposed racialised divisions by maintaining an allegiance to Attlee’s expanded commonwealth citizenry. Union leaders understood that, beyond the obvious purpose of appeasing the populist right-wing, the racialisation of migrants would encourage white labour migration from the European continent, laying

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the ground for British entry into the European Economic Community (EEC) and market liberalisation (Hatton and Price 2005). Security bodies, too, understood these new political divisions according to their own logic and interests. Incumbent and insurgent actors within the police made efforts to influence professionals of politics both directly, through internal lobbying, and publicly through interactions with the press. Through this process, police bodies were able to foster support for special police measures, create favourable public perceptions, and actively engage in defining the security implications of mass immigration to generate legitimacy in the political and public space. Regional police management, traditionally reluctant to invest in relationships with media, made a concerted effort to publicise their frustrations with the Home Office, British Airport Authority (BAA),1 and Port of London Authority (PLA),2 and Customs by inflating concerns around the association between immigrant populations and criminality, and their inability to reduce entry levels and prevent internal evasion. A note from a Home Office civil servant on a West constabulary report in 1970 reads: I get the impression that the police enjoy giving handouts about illegal immigration; the press lap these up and this pays dividends when the police want press cooperation on other matters…. they might consider tempering their comments a little about their inability, to stem the tide of illegal immigrants into this country. The less said by a police officer the better, and if anything is to be said, it should be with home office sanction. (National Archive: 1968 Ho 344/400) The internal memos of the Home Office immigration branch3 in 1969–1971 are littered with similar pleas. Police engagements with the press helped foster an image of the Home Office as impotent, powerless in the face of the increasing ‘depravity of immigrant communities’ (National Archive: 1968 Ho 344/400). In subsequent meetings with senior officers, Home Office officials were privately insistent that such public engagements be curtailed at least until new strategic measures could be put in place. Officers were reluctant to acknowledge, or agree to, such demands on record but, at least on one occasion, agreed to stop stoking fears around associations between mass immigration and crime. A note from an immigration branch officer on a meeting with the western constabulary reads: The police representatives took the point that police spokesmen should avoid giving the press exaggerated estimates of the extent of illegal immigration, although this is not mentioned in the minutes. In Sir John Willison’s opinion, illegal immigration is on a small scale compared with evasion by persons who stay on here in breach of their conditions of admission. (National Archive: 1968 Ho 344/400)

Tracing Pre-emptive ILP 55 Beyond influencing press coverage, committee appearances in parliament represented another primary opportunity for regional police bodies to draw attention to the insufficiencies of Home Office action and, additionally, to foster favour with other sympathetic political actors. Senior officers asked to comment on the state of race relations or the associations between migration and increasing crime often pursued discourses designed to promote conservative narratives. For example, the Chief Constable of Lancashire Constabulary stated in a parliamentary committee on race relations: My inquiries led me to believe that illegal immigration is widespread, and it can cover many aspects such as the man coming into Heathrow Airport, or any airport for that matter, on two months’ holiday and then disappearing amongst the large immigrant communities that we have got in this country. (Police Drugs and Illegal Immigration 1973) Narratives emphasising criminality associated with immigrants were not reserved for use in the public sphere. In private, domestic, and transnational police cooperation emphasised these links to secure symbolically valuable relationships with international partners. For example, connections between immigrant populations and drug offences were used to entice and promote intelligence liaison with European police bodies. An immigration branch official attending a conference of chief constables wrote in a report: The police realise that foreign officials will not be enthusiastic about preventing illegal immigrants from leaving their territories. The police feel sure that they will obtain better cooperation by stressing that illegal immigrants and other crimes, such as drug smuggling and currency transactions, go hand in hand. (National Archive: 1968 Ho 344/400) Security actors understood that what was at stake in the classification of immigrant populations were not just material interests. Forms of symbolic and informational capital were crucial for incumbents in maintaining dominant positions over competing agencies. In fact, for many years, the policing of foreigners was at the fringes of police work conducted mainly by Home Office officials and customs and excise staff. The expansion of antievasion measures initially bolstered the authority of these agencies, which sought to take advantage of their new importance and expand the geographical limits of their remit and remove institutional constraints. In response, the Police Federation and now disbanded Association of Chief Police Officers (ACPO)4 often publicly reprimanded customs agencies: The Police Federation came down like a ton of blue bricks to crush an attempt by the PLA force to have their powers extended throughout the

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Beyond the struggle between different policing bodies, political actors also increasingly reappropriated discourse on immigration for their own ends. Conservative enthusiasms for entry into the European Economic Community refocused Home Office energies around reducing non-white migration to allow for the potential of further European integration. Harold Macmillan’s EEC application in 1961 served to strengthen these efforts further, resulting in the conservative government passing the Commonwealth immigration act, which redrew the criteria on which migrants could seek entry. Two avenues to settlement were outlined. First, migrants could seek a work voucher as a labour migrant, and second, migrants could re-unite with family and dependents (Slaven 2019: 1483). This new system served to exclude non-white migration by denying labour migrant applications from the new commonwealth. The act also bestowed new responsibilities on the immigration service, whose officers were tasked with checking the newly issued ‘entry certificates’ at ports of entry. However, on the ground, document inspections were often haphazard and ineffectual, feeding further into mounting public concern around the evasion of control measures. Fear around the rise of migration was also exploited by the press, who began a campaign publicly rebuking successive home secretaries whose inability to reduce migration, and ‘loss of control’ was said to threaten the white ‘British nation-state’ (Carter et al. 1996). In tandem, calls from Security elites at the Home Office and the police increasingly called for the implementation of ‘expanded internal monitoring’ in which police units would play a more central role in evasion controls. As these internal pressures and the extensive press coverage continued to highlight the inability of home secretaries to curb migration, political support for Attlee’s ‘commonwealth ideal’ quickly dissipated. Significantly, the press began to represent cultural heterogeneity as more than a social problem of integration, making associations between migrants and the invasion of an external chaotic entity, symptomatic of a wider deterioration of state sovereignty. In his excellent research into the construction of social policy in the United Kingdom, Rob Atkinson maps the effects of this narrative on Home Secretary James Callaghan, whose previous loyalty to the commonwealth ideal was replaced with language linking immigrants to social deprivation (Atkinson 2000). Atkinson notes Callaghan’s refusal to contextualise his concerns over growing criminality and deteriorating living standards within their broader social context, choosing instead to emphasise the degeneration of these ‘discrete pockets of poverty’ (Conroy 2006). Ultimately, this language served to encourage a delineation of the practices of social workers, police, and public officials on ethnocultural grounds.

Tracing Pre-emptive ILP 57 After the election in 1964, the Labour government, once in opposition to racialised migration policy, introduced the ‘immigration from the commonwealth’ white paper, which reduced the criteria on which family members and dependents from the commonwealth could seek resettlement (HMSO 1965). In addition, discretionary powers were given to immigration officers and police to conduct random inspections of passports and entry documents on migrant populations. At the same time, attempts were made abroad to dissuade or exclude non-white populations. Passports were withheld in Jamaica and South Asia, propaganda campaigns spoke of abysmal British weather, and transatlantic ticket prices were intentionally overvalued (Hampshire 2005: 21). By 1970, the political currency imbued in the demonisation of non-white migrant populations had peaked, not only within the conservative party but also amongst Labour voters. In 1969, the Gallup opinion poll found that 69% of participants agreed with the statement that ‘coloured immigration’ was a very serious social problem, 61% thought that commonwealth migration had ‘harmed’ the United Kingdom, and 61% disapproved of the way the government’s immigration policies (Collins 2016). The following year, Edward Heath’s conservative administration announced the implementation of new stringent controls on immigration. The immigration act of 1971 introduced the now infamous concept of ‘partiality’, which prevented non-white immigration by tightening the criteria on which citizens of the ‘new’ commonwealth could enter Britain (Williams 2015). The act also made special reference to ‘illegal entrants’, officially criminalising evasion, illegal entry, and establishing the criteria on which migrants could be arrested or deported (Evans 1972). Police were granted special powers of warrantless arrest in cases of suspected illegal entry, breach of entry conditions, or associations with illegal entrants (Doty 1996). Therefore, while the legal status of the migrant populations was guaranteed in principle, the transition away from colonial politics jeopardised the status of their state membership, or in other words, their access to the substantive rights of citizenship in practice. The interplay between the political discourses of the commonwealth ideal, internationalist and outward-facing, and that of ‘little England’ stimulated a bifurcation which complicated the colonial conception of the commonwealth citizen, redefining the juncture between the citizen and the other, or, to use the terms of the time, the ‘belongers’ and the ‘non-belongers’ (Hampshire 2005: 16). As Bourdieu reminds us, when national identity changes occur, ‘the decision as to what is relevant and how it should be used in establishing the national identity will rest with the state’ (1984: 468). Through the imposition of the perspective of institutions of the state, in a process of ‘world making’, the state moves beyond the monopolisation of violence to the symbolic powers inherent in ‘making of social divisions and hence the political power par excellence’ (ibid.). Thus, while policing bodies and the print media influenced, and took advantage of, the creation of new immigration measures,

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ultimately shifts in immigration policy can be attributed to the desire of incumbent actors in politics to ensure their position and political salience. The next section examines the response of security actors in the police to this new social classification of migrant populations and demonstrate how historic antagonisms surrounding institutional centralisation characterised struggles to monopolise the practice of internal pre-emptive intelligence operations targeting recently disenfranchised migrant populations.

Immigration and Institutional Struggles in Intelligence Strategy As police bodies helped shape the struggle over the citizenship of migrants, so did the creation of this new class shape the institutional structure of policing. The reclassification of the commonwealth migrant was understood by security actors according to the logic of their particular social arena or, to follow Bourdieu, according to their own understanding of the game in which they sought to accumulate specific types of resources or capital. Dominant groups within the field of security, namely the Met, the ACPO, Home Office officials and customs officers, fought fiercely in the wake of these policy changes to convert their resources into greater legitimacy, political influence, resource allocation, increased intelligence capacity, and transnational intelligence exchange. This section seeks to examine how these stakes, the structure of the space of policing, and the effect of immigration policy, caused a notable departure from previous reactive criminal intelligence strategies championed by regional actors towards the creation of a new preemptive intelligence-led strategy typified in the creation of a new intelligence unit, the CDIIIU. The development and creation of the CDIIIU must be contextualised within the historical tensions between regional and centralised forces. Although special branch, and other national security intelligence services, had a long-standing political affiliation both domestically and abroad, law enforcement had retained a significant degree of independence from the Home Office due to the ACPO and its principle of regional independence. ACPO representation and the doctrine of constabulary autonomy allowed Chief constables to condemn and restrict the proliferation of policy from other sources in government or other constabularies (Charman 2011). Even changes championed by ACPO executives were often deliberately ignored by regional forces. In addition, within the British legal system, the police operated without explicit authorisation by statute law, allowing individual institutions, regional and national, to create their own policy programs with little external interference or review (Ibid.: 147). Regional drugs and immigration squads were established independently, constructed around the specific concerns of the local constabulary, the largest of which were in Kent

Tracing Pre-emptive ILP 59 and Hampshire. Consequently, while European governments were involved in remodelling centralised policing to address a new threat of organised crime and drug trafficking, the Home Office remained reluctant to impose change from above (Freidrichs 2007). In the 1960s, the historic reluctance of the Home Office to intervene in the affairs of domestic police bodies was transformed through a process of politicisation of police practice provoked by a series of public failures. These included the role of the police in the Notting Hill race riots, the substantiated accusations of bribery that preceded the publication of the royal commission in 1960, and a string of high-profile corruption scandals involving the Met’s Drugs squad, which led to charges of conspiring to pervert the course of justice (Moran 2005). At the same time, police bodies were increasingly blamed for failing to prevent the accelerating disintegration of a society ‘in the grip of muggers, hooliganism, terrorists, and other folk devils’ (Reiner and Cross 1991: 1). In response, the Police Act of 1964 amalgamated regional forces, giving the HMIC the responsibility of monitoring the efficacy and conduct of all forces in England and Wales. The act conferred upon the Home Office new powers that, ‘while leaving unaltered the basic structure of local police forces controlled by virtually autonomous chief constables, required a greater degree of central supervision of provincial police forces’ (Thomas 1964). Such reforms were vehemently opposed by the ACPO and regional forces, who saw increased intervention as a precursor for amalgamation. However, centralisation represented more than a mechanism with which to reduce public expenditure and increase accountability. Indeed, the concentration of the means of intelligence collection and exchange served as a mechanism with which the Home Office and the Met sought to concentrate forms of capital. Specifically, control of informational capital was vital in preventing disparate narratives on immigration and drug trafficking that threatened the legitimacy of the Home Office and government policy. Thus, the creation of new intelligence capabilities and discussion around the creation of the CDIIIU was understood by security actors through the historical struggles around the consolidation and centralisation of material and symbolic resources. The centralisation of intelligence capabilities threatened to bypass incumbent actors, jeopardising their dominant positions by reducing their informational capacity and political relevance. Consequently, the strategy, personnel, and institutional relationships of the nascent CDIIIU, were shaped by these structural antagonisms as stakeholders fought fiercely to defend their interests. The following section analyses three primary aspects of this conflict, highlighting the disparate visions for new intelligence strategy championed by different police actors and their impact on the development of the preemptive logics that came to define the operations of the CDIIIU.

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The Dominant Position of the Metropolitan Police First, proposals around constructing new immigration intelligence units in line with the CDIIIU were intrinsically linked to the Met and the Home Office. The Met had been calling for a centralised drugs and immigration intelligence unit since the early 1960s, citing the connection between migrants and the trafficking of cannabis (Stockley 1988: 295). The commissioner’s drive to develop a central intelligence bureau was accelerated in 1969 in the form of a policy proposal circulated amongst the ACPO and a speech made at the first conference of drug squad detectives held at Moreton-in-Marsh. Significantly, the proposals stipulated that this new unit would be located at Scotland Yard, which would serve as the sole repository of immigration intelligence. The following is a note made by a Home Office Immigration Branch employee after the Moreton-in-Marsh conference: The objects of the unit will be the collation and dissemination of information from all sources about illegal immigration. It is essential that there should be a free flow of information to and from the unit, and for this purpose, all information coming into police hands about the subject should be channelled to the unit. This will, in turn, enable the unit to send out information when action is required in any particular force area. While intelligence unit which at present provide a regional or local service should continue for as long as chief officers find them, useful, it is essential that the central intelligence unit is provided with all information which is relevant to the national and international picture. (National Archive: 1968 Ho 344/400) The ACPO recognised these proposals as a more insidious form of centralisation. For all its internal division, chief constables were united in their opposition to an agenda they saw as an encroachment on their constabulary independence. Representatives of provincial forces were eager to communicate that no concessions were to be made unless it was clear that this new body would maintain an impartiality that would deny the Met commissioner further influence. In a report on the Moreton-Marsh conference of drugs officers, a civil servant in the Home Office wrote: It clearly emerged that the conference was unhappy about the siting of the unit in London was worried that provincial interests were not being adequately safeguarded by the Metropolitan police proposals… Discussion outside the formal session was less restrained, and no one attending could be left in any doubt that there was a complete lack of trust in the Met police which rendered unlikely any chance of a central unit in London becoming a success. (National Archive: 1968 Ho 344/400)

Tracing Pre-emptive ILP 61 Instead, the ACPO proposed expanding pre-existing regional criminal units’ immigration and drugs intelligence units, focusing on local cases. Any centralisation of intelligence functions, irrespective of guarantees from the Met, was vehemently opposed. In fact, ACPO members framed moves towards centralisation not only as illogical but also dangerous. In communication with the Home Office, regional representatives repeatedly highlighted the history of corruption within the Met’s pre-existing intelligence units. Far more serious is the widely held view that there is an appreciable degree of corruption in the Met police, where drugs are concerned, the scope of corruption is wide. (National Archive: 1968 Ho 344/400) The apparent resilience of ACPO resistance initially discouraged civil servants at the Home Office who admitted in their internal memo that: ‘it looks as though the idea of a “national” intelligence Unit and New Scotland Yard is failing’ (National Archive: 1968 Ho 344/400). Throttling Information Exchange The second site of conflict was focused on the exchange of information between a centralised intelligence unit and peripheral actors in regional forces and customs. The ACPO and provincial forces were adamant that the situation of an intelligence unit within the Scotland Yard would allow the Met to selectively control the flow of information, drip-feeding or completely excluding regional partners: The first is the feeling among provincial forces that any information given to the Metropolitan Police will be used … without any reciprocal benefit accruing to the provincial force doing most of the work. This happens on occasion, even when operations to be executed are outside London. In short, intelligence in Metropolitan Police hands is used only when it is likely to benefit that force and is rarely released otherwise. (National Archive: 1970 Ho 344/399) Customs officers, too, were vocally opposed to establishing Met officers on similar grounds. Customs had developed its own intelligence unit in the mid1960s, stationed primarily at Heathrow, consisting of two chief immigration officers, six immigration officers, and a clerical officer. The unit had been deemed a success by customs officials as ‘A substantial index of names had been compiled, and the officers concerned had built up a good deal of expertise … Mr. Clarke said that he would be reluctant to see (the Unit) replaced by a unit run by the police service’ (National Archive: 1970 Ho 344/ 399). Additionally, intelligence dissemination from the Customs units was

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the primary Method with which regional constabularies and the Met could develop intelligence profiles of evasion suspects. Ergo, whilst reluctant to pass on information to each other, both co-operated with the Immigration Service Unit. This small monopoly on entry documents, visa details, passport information, positioned customs as an advantageous position that offered material and symbolic benefits around the identification of internal evasion suspects and traffickers. This privileged position was used as leverage to force the accommodation of their demands around national intelligence units. In fact, both customs and regional actors were clear in their intention to starve any centralised intelligence body of information gathered during their operations, effectively derailing the Met’s plans before they could begin. As a Home Office official mentioned when corresponding with their counterpart at the Met: ‘We know, at a working level, no information will be given to the unit by provincial forces or the customs’ (National Archive: 1970 Ho 344/399). Withholding of local intelligence created, in effect, a powerful veto with which regional constabularies could attempt to force the Met to relinquish sole control over the development of new units and, consequently, limit the Met’s ability to define emerging security threats with partners in the Home Office. Transnational Networks The final site of conflict pertains to the transnational relationships developed by regional constabularies with foreign forces. Within the context of increasingly capable and transnational centralised forces in Europe, the control of access to information from international partners was an invaluable resource. Pooling information from disparate international sources allowed actors to fight their corners and demonstrate their worth in relation to their competitors. Moreover, The Met and the Home Office were keen to keep pace with their European and North American peers who had already established national intelligence units dedicated to drugs and illegal immigration (Sheptycki 2000). Particularly concerning illicit narcotics, there was a perception that cooperation with European partners was essential: The problem with which we are dealing is not so much akin to the situation in the United States but is a European problem. It is essential to have cooperation and links not only with Interpol, but with all European Police forces. (HC DEB: 1973) Indeed, the Home Office was already involved in developing international ties from within Europe and beyond. For example, the early development of the Trevi group brought together home affairs ministers, senior police officers, and intelligence staff from nine countries, including the United Kingdom, to outline cohesive approaches to tackling organised crime, terrorism, and illegal

Tracing Pre-emptive ILP 63 immigration (Bunyan 1993). Similarly, a few years prior, in 1971, French President Georges Pompidou introduced the now-famous ‘Pompidou Initiative,’ in which a lead objective was the harmonisation of drug policies within Europe (ibid.). Consequently, the informality of communications between British constabularies and intelligence bureau within Europe became a central tension in creating new intelligence models. The Met and the Home office were increasingly opposed to the messy interactions of regional constabularies and European counterparts, outlining how a new bureau would channel all communications with European partners: In addition to liaison with the various enforcement agencies in this country, the Unit will serve as the central point of contact for foreign authorities…. some thought may need to be given to the need for some kind of liaison arrangement with Interpol. (National Archive: 1968 Ho 344/400) This proposition was ferociously opposed by the ACPO, who implored Home Office representatives to ensure that the liaison between the southeastern police forces and officers in Holland, France, and Belgium be protected, insisting that the liaison officers of the Southern Forces should be the sole contacts with their European colleagues. Regional forces even attempted to disrupt the relationship between the Met and Interpol by pointing to the potential risks of centring the Met in the development of new transnational connections, as is made clear in this Home Office memo reporting on the Moreton-Marsh conference of drug officers in 1971: The US authorities offer, in exchange for information, large sums of money, which may be distributed to informants at the discretion of the police officers concerned. When it is such a simple matter for police officers themselves to make money out of this sort of transaction, it clearly becomes essential for anyone in charge of an intelligence unit to be above suspicion. The Met police attempt to ensure that all dealings with the Bureau be routed through the Metropolitan police drugs squad has increased the distrust of provincial drugs squads. (National Archive: 1970 HO344/399) A more significant hurdle for regional actors was the increasing reliance of European forces on Interpol as a central exchange of intelligence. French, Belgian, and Dutch counterparts had, at least on paper, signalled their intent to channel future cooperation through Interpol’s liaison units. In addition, the Interpol, or ‘C11’, unit at the Met was insistent that they be central in the exchange of intelligence between British and European partners. Interpol representatives put pressure on the Home Office to implement formal structures that would ensure this centrality, vocalising their support for the proposals outlined by the Met Commissioner’s office that would see

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intelligence channelled through the CDIIIU and Interpol to continental partners. An internal memo from the Home Office reads: The situation is further aggravated because C11 department, representing Interpol interests, do not favour the unofficial links between provincial forces and their counterparts across the Channel … The chief constable of Kent is opposed to this as he considers it might spoil his special liaison with the French and Belgian police. Interpol will doubtless continue to be ignored by forces like Kent and Essex, who will go on using the contacts they have established direct. (National Archive: 1970 HO344/399) Whilst these antagonisms were brought to the fore by the introduction of new immigration policy, they were not temporary. By the late 1960s, immigration was approaching a 20-year low, a consequence of a steady reduction in migration numbers from the commonwealth. Nevertheless, in 1969, the Immigration and Nationality Directorate had established an immigration service. A year later, the Metropolitan Police and the Home Office began establishing the first national intelligence unit in British law enforcement, the CDIIIU. The CDIIIU’s official purpose was the proactive collection and distribution of intelligence on groups or individuals associated with trafficking and illegal immigration. Located at Scotland Yard, the unit had an explicit national and international remit (Dorn et al. 1992). It maintained single-purpose desks dedicated to immigration, special branch, and Interpol, bringing it into a broader network of intelligence practitioners from Europe, North America, and Australia. Around 40 personnel, including police officers from the Met’s Criminal Investigation Department (CID), customs officers, and civilian analysts, were tasked with disseminating and analysing the information gathered from local, domestic, and international partners (ACPO 1986). Large databases were constructed that stored information pertaining to the name, age, occupation, and associates of migrants suspected of and affiliated to criminality. This information was garnered mainly through regional forces who conducted regular raids, warrantless arrest, and surveillance. A common tactic was the confiscation and transcription of address books, the pertinent details of which would be handed on to the CDIIIU for analysis and storage. This was a definitively intelligence-led and proactive policing strategy that encouraged intelligence gathering for its potential future value and in recognition of its salience as a valuable source of capital. How then did the structural antagonisms mentioned above help to shape the form of the CDIIIU and the move towards the pre-emptive collection of intelligence? And what can account for the failure of regional actors to protect the pre-existing focus on localised reactive intelligence structures? Here again, we can turn to the institutional struggles of police and politics to find some answers. First, the recategorisation of migrant populations reframed former

Tracing Pre-emptive ILP 65 commonwealth citizens as alien entities, their communities as foreign ‘pockets’ existing within the wider polity. This classification allowed political and social actors to entertain notions of increased security measures, both at the border and internally. At the same time, the political stakes imbued in the field of policing rose dramatically as successive home secretaries were publicly denounced for allowing mass migration, illegal entry, and internal evasion of new commonwealth citizens. This changing relationship of policing and politics saw the guild of domestic security actors suffer a distinct loss of autonomy, especially regarding the material conditions on which institutional survival or expansion was contingent. Furthermore, the redefinition of British national identity and the reorganisation of its boundaries engendered a restructuring of power dynamics, bolstering the positions of insurgent actors such as customs staff, port authority, and airport authorities. These actors were able to strengthen their position as the value of their intelligence increased in line with political demand. Similarly, the Met, with its material capital and institutional affiliations with Interpol, was well placed to take advantage of the reconfigurations around intelligence exchange with continental partners. This multiplication of the prominent players within the field and the absence of any monopolistic institutions allowed for the re-formulation of intelligence practices by these newly dominant actors, excluding those championing reactive approaches. Consequently, policing strategies commonly employed at the boundary or beyond the state by customs officials, port authorities, and immigration officials were re-orientated towards the interior. On the other hand, the ACPO, regional constabularies and other advocates for reactive intelligence strategies were poorly positioned to take advantage of this new reconfiguration. Geographical limitations, institutional structure, and limited transnational intelligence exchange impeded their ability to influence the creation of new intelligence strategy. In other words, political changes devalued their access to capital upon which influence over changing police strategy was contingent. Security and intelligence practices were increasingly transnational, and, as it became clear that French objections to British entry into the EEC would relent, the creation of intelligence units such as the CDIIIU became a vehicle for the accelerated integration into the European security space in which centralised communications with European counterparts was a priority. For government officials, the attempt of regional actors to stave off centralisation, starve new intelligence units of information, and maintain liaison with European partners, were acceptable only insofar as questions over Britain’s entry into the EEC remained. Ergo, Britain’s successful application in the EEC in 1973 represented the final failure of the struggle of regional actors to maintain the autonomy of local intelligence strategies.

Conclusion: Implications for the Proliferation of Intelligence Actors The exploration around the CDIIIU’s formation in this chapter is not intended to be understood in isolation as an irregular reaction to specific

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political anxieties. The CDIIIU is just one example of the deep historical roots of intelligence practice outside of the traditional organs of the state. It is from these origins that expansive modern policing intelligence units originated. The institutional lineage of the CDIIIU includes the National Crime Intelligence Service (NCIS), the Serious Organized Crime Agency (SOCA), and its successor, the National Crime Agency (NCA). This institutional evolution has coupled with an expansion of the subjects of intelligence collection. The relatively narrow remit of the CDIIIU has grown to include large portions of society, evaluated as potential suspects in a broad range of crimes, including terrorism, human trafficking, and tax evasion. As potential targets have grown, so have the intelligence bodies tasked with their control. The United Kingdom now boasts a wide array of different specialised intelligence bodies, including the NCA, The National Fraud Intelligence Bureau (NFIB), eleven regional Counter-Terrorism Intelligence Units (CTIU), HMRC’s Risk and Intelligence Service (RIC), and UK Border Force and Immigration Service intelligence unit to name just a few. Equally significant is the notable absence of traditional intelligence actors in the CDIIIU’s development. While modern law enforcement operates alongside government agencies, the example of the CDIIIU serves to demonstrate that intelligence practices are not always inherited from traditional sources. Intelligence logics are not transmitted only through direct relationships with intelligence professionals or proximity to intelligence bodies. Instead, practice can emerge in isolation, produced by the practical desire of social actors to monopolise the definition of real or constructed threats. Ergo, law enforcement, politicians, and other institutions of government are seldom passive recipients of intelligence dogma. Nor are they mere passengers to the strategic or policy adjustments. Consequently, examining intelligence practice in the complex social environment where it is found is crucial in understanding the effects of its conception and implementation.

Notes 1 The British Airport Authority was a specialist constabulary established in 1965 responsible for the policing of London Heathrow, London Stansted, and London Gatwick. It was replaced in 1975 by relevant territorial police forces. 2 Port of London is a public trust that until 1992 operated a specialised force responsible for the policing of all areas owned or operated by the Port of London. 3 Formerly known as the Aliens Branch, the Immigration Branch operated from 1933 to 1973 as the operational arm of the Home Office Immigration Directorate. 4 The ACPO was a not-for-profit limited company established in 1948 that acted as a forum for chief police officers to co-ordinate strategy in response to national policing needs. After a review in 2013., the ACPO was replaced by the National Police Chief ’s Council.

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References Alach, Z. 2011. ‘The Emperor Is Still Naked: How Intelligence-led Policing Has Repackaged Common Sense as Transcendental Truth’. The Police Journal 84 (1): 75–97. Atkinson, R. 2000. ‘Narratives of Policy: The Construction of Urban Problems and Urban Policy in the Official Discourse of British Government 1968–1998’. Critical Social Policy 20 (2): 211–232. Bigo, D. 2002. ‘Security and Immigration: Toward a Critique of the Governmentality of Unease’. Alternatives 27(1_suppl): 63–92. Bigo, D. 2016. ‘Sociology of Transnational Guilds’. International Political Sociology 10 (4): 398–416. Bigo, D. 2013. ‘The Transnational Field of Computerised Exchange of Information in Police Matters and its European Guilds’. In Transnational Power Elites. Routledge, pp. 161–188. Bonelli, L. 2005. ‘The Control of the Enemy Within? Police Intelligence in the French Banlieues’: 193–208. Bonelli, L. 2008. ‘Hidden in Plain Sight: Intelligence, Exception and Suspicion After 11 September 2001’. In Terror, Insecurity and Liberty. Routledge, pp. 110–130. Bonelli, L. 2017. ‘The Control of the Enemy Within? Police Intelligence in the French Suburbs (banlieues) and Its Relevance for Globalisation’. In Controlling Frontiers. Routledge, pp. 193–208. Bourdieu, P. 1984. Distinction: A Social Critique of the Judgement of Taste. Harvard University Press. Bourdieu, P. 2018. Classification Struggles: General Sociology, Volume I. Lectures at the College de France, 1981–82. Cambridge: Polity Press. Bourdieu, P., and Wacquant L. 1992. Réponses. Vol. 4. Paris: Seuil. Bowling, B., and Kopf, C. 2016. ‘Transnational Policing in Europe and Its Local Effects’. Special Issue 3 European Police Science & Research Bulletin (3): 47–57. Brodeur, J. P. 2007. ‘High and Low Policing in Post-9/11 Times’. Policing: A Journal of Policy and Practice 1 (1): 25–37. Brodeur, J. P. 1983. ‘High Policing and Low Policing: Remarks About the Policing of Political Activities’. Social Problems 30 (5): 507–520. Brodeur, J. P., and Dupont, B. 2008. ‘Introductory essay: The role of knowledge and networks in policing’. The Handbook of Knowledge-Based Policing: Current Conceptions and Future Directions. pp. 9–36. Brogden, M. 1987. ‘The Emergence of the Police—The Colonial Dimension’. The British Journal of Criminology 27 (1): 4–14. Bunyan, T. 1993. ‘Trevi, Europol and the European state’. Statewatching the new Europe 1. Burcher, M., and Whelan, C. 2018 ‘Intelligence-Led Policing in Practice Reflections from Intelligence Analysts’. Police Quarterly 22 (2): 139–160. Carter, B., Green, M., and Halpern, R. 1996. ‘Immigration Policy and the Racialisation of Migrant Labour: The Construction of National Identities in the USA and Britain’. Ethnic and Racial Studies 19 (1): 135–157. Carter, J. G. 2011. Policing Innovation: Exploring the Adoption of Intelligence-Led Policing. Michigan State University [Criminal Justice]. Chan, Janet B. L. 2001. ‘The Technological Game: How Information Technology Is Transforming Police Practice’. Criminal Justice 1 (2): 139–159.

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Charman, S. 2011. ‘Lobbying and Representation: An Analysis of the Emergence of the ‘Senior Police Voice’ During the Late Twentieth Century’. Contemporary British History 25 (2): 277–296. Collins, M. 2016. Immigration and Opinion Polls in Postwar Britain. Loughborough University [Journal Contribution]. Conroy, H. 2006. Callaghan. Haus Publishing. Cope, N. 2004. ‘‘Intelligence Led Policing or Policing Led Intelligence?’ Integrating Volume Crime Analysis into Policing’. British Journal of Criminology 44 (2): 188–203. Consterdine, E., and Hampshire, J. 2014. ‘Immigration Policy Under New Labour: Exploring a Critical Juncture’. British Politics 9 (3): 275–296. Coyne, J. W. 2014. Strategic Intelligence in Law Enforcement: Anticipating Transnational Organised Crime (Doctoral dissertation, Queensland University of Technology). Deflem, M. 2000. ‘Bureaucratisation and Social Control: Historical Foundations of International Police Cooperation’. Law and Society Review 34 (3): 739–778. Deflem, M. 2002. ‘Technology and the Internationalisation of Policing: A Comparative-historical Perspective’. Justice Quarterly 19 (3): 453–475. Dorn, N., Murji, K., and South, N. 1992. Traffickers: Drug Markets and Law Enforcement. Psychology Press. Doty, R. L. 1996. ‘Immigration and National Identity: Constructing the Nation’. Review of International Studies 22 (3): 235–255. Ericson, R. V., and Haggerty, K. D. 1997. Policing the Risk Society. University of Toronto Press. Ericson, R. V., and Haggerty, K. D. 2000. ‘The Surveillant Assemblage’. The British Journal of Sociology 51 (4): 605–622. Evans, J. M. 1972. ‘Immigration Act 1971’. The Modern Law Review 35 (5): 508–524. Ferguson, A. G. 2016. ‘Policing Predictive Policing’. Washington University Law Review 94: 1109. Fitzgibbon, D. W. 2007. ‘Institutional Racism, Pre‐emptive Criminalisation and Risk Analysis’. The Howard Journal of Criminal Justice 46 (2): 128–144. Friedrichs, J. 2007. Fighting Terrorism and Drugs: Europe and International Police Cooperation. Routledge. Gill, P. 1996. ‘Reasserting Control: Recent Changes in the Oversight of the UK Intelligence Community’. Intelligence and National Security 11 (2): 313–331. Gill, P. 1998. ‘Making Sense of Police Intelligence? The Use of a Cybernetic Model in Analysing Information and Power in Police Intelligence Processes’. Policing and Society: An International Journal 8 (3): 289–314. Gill, P. 2013. ‘The Implications of Intelligence Practice Within and Beyond the State: An Analytical Model’. Journal of Regional Security 8 (2): 93–114. Gorski, P. S. ed. 2013. Bourdieu and Historical Analysis. Duke University Press. Hampshire, James. 2005. Citizenship and Belonging: Immigration and the Politics of Demographic Governance in Postwar Britain. Springer. Hatton, T. J., and Price S. W. 2005. ‘Migration, Migrants and Policy in the United Kingdom’. In European Migration: What Do We Know. Oxford University Press. 113–172. HMSO. 1965. Immigration from the Commonwealth. Cmnd. 2739 London: HMSO Illustrated London News Saturday 15 April 1967. Lynford, Adam (1967, April 15) “Britain’s Other Police Forces” Illustrated London News. https://www. britishnewspaperarchive.co.uk/viewer/BL/0001578/19670415/056/0017?browse=true

Tracing Pre-emptive ILP 69 Jaffel, H. B. 2019. Anglo-European Intelligence Cooperation: Britain in Europe, Europe in Britain. Routledge. James, A. 2013. Examining Intelligence-Led Policing: Developments in Research, Policy and Practice. Springer. John, T., and Maguire, M. 2004. The National Intelligence Model: Key Lessons from Early Research. London: Home Office. Lowe, W. J., and Malcolm, E. L. 1992. ‘The Domestic Action of the Royal Irish Constabulary, 1836–1922’. Irish Economic and Social History 19 (1): 27–48. McCulloch, J., and Wilson, D. 2015. Pre-crime: Pre-emption, Precaution and the Future. Moran: Routledge. Moran, J. 2005. ‘‘Blue Walls,’ Grey Areas’ and ‘Cleanups’: Issues in the Control of Police Corruption in England and Wales’. Crime, Law and Social Change 43 (1): 57–79. Ober, K., and Sakdapolrak, P. 2017. ‘How Do Social Practices Shape Policy? Analysing the Field of ‘Migration as Adaptation’ with Bourdieu’s ‘Theory of Practice’’. The Geographical Journal 183 (4): 359–369. Phythian, M. 2008. Intelligence, Security and Policing Post-9/11: The UK’s Response to the ‘War on Terror’. Springer. Pickering, S., and McCulloch, J., eds. 2012. Borders and Crime: Pre-crime, Mobility and Serious Harm in an Age of Globalisation. Palgrave Macmillan. Ratcliffe, J. 2002. ‘Intelligence-Led Policing and the Problems of Turning Rhetoric into Practice’. Policing and Society 12 (1): 53–66. Ratcliffe, J. H. 2008. ‘Knowledge Management Challenges in the Development of Intelligence-Led Policing’. The Handbook of Knowledge-Based Policing: Current Conceptions and Future Directions. Chichester: John Wiley and Sons, pp. 205–220. Ratcliffe, J. H. 2016. Intelligence-Led Policing. Routledge. Reiner, R. 2010. The Politics of the Police. Oxford University Press. Reiner, R., and Cross, M., eds. 1991. Beyond Law and Order: Criminal Justice Policy and Politics into the 1990s. Springer. Ricci, C. 2016. ‘“They Might Feel Rather Swamped”: Understanding the Roots of Cultural Arguments in Anti-Immigration Rhetoric in 1950s–1980s Britain’. Global Histories: A Student Journal, 2(1). Sheptycki, J. 1997. ‘Insecurity, Risk Suppression and Segregation: Some Reflections on Policing in the Transnational Age’. Theoretical Criminology 1 (3): 303–315. Sheptycki, J. W., ed. 2000. Issues in Transnational Policing ‘The Global Cops Cometh: Reflections on Transnationalization, Knowledge Work and Policing Subculture’. British Journal of Sociology Press. 57–74. Slaven, M., and Christina, Boswell. 2019. ‘Why Symbolise Control? Irregular Migration to the UK and Symbolic Policy-Making in the 1960s’. Journal of Ethnic and Migration Studies 45 (9): 1477–1495. Stockley, D. 1988. ‘National Drugs Intelligence Unit’. The Police Journal 61 (4): 295–303. Thomas, D. A. 1964. ‘Police Act, 1964’. The Modern Law Review 27 (6): 682–689. Ward, S., ed. 2001. British Culture and the End of Empire. Manchester University Press. Williams, C. 2015. ‘Patriality, Work Permits and the European Economic Community: The Introduction of the 1971 Immigration Act’. Contemporary British History 29 (4): 508–538. Zedner, L. 2007. ‘Pre-crime and Post-criminology?’ Theoretical Criminology 11 (2): 261–281.

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Archival Material 1980 Ho 337/189 ADP Report Number 180 Evaluate proposals for a computerbased information retrieval system for home office immigration service intelligence unit January. 1968 Ho 344/400 Discussion of illegal immigration the Central Conference of Chief Constables and matters arising thereafter. 1970 HO 344/399 Discussion of illegal immigration by the central conference of the chief constables and matter. ACPO [Association of Chief Police Officers] Report of the Sub- Committee on Criminal Intelligence (1975). ACPO Second Report of the Working Party on Operational Intelligence, 1986. Audit Commission. Helping with Enquiries: Tackling Crime Effectively. London: HMSO (1993). HMIC. Policing with Intelligence. London: Her Majesty’s Inspectorate of Constabulary (1997). NCIS. NCIS and the National Intelligence Model. London: National Criminal Intelligence Service (2000). Police (Drugs and Illegal Immigration) HC Deb 31 January 1973 vol. 849 cc1524-36.

Part II

The Practical Transformations of Contemporary Intelligence

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Citizen-Led Intelligence Gathering under UK’s Prevent Duty Amna Kaleem

Introduction A journey through any train station in England will bring one into contact with the instruction of ‘see it, say it, sorted’. This friendly reminder, delivered at regular intervals, is designed to ‘build a more vigilant network across the country’ and remind the public of the ‘vital role’ they can play in keeping everyone safe (British Transport Police 2016). The ‘it’ in this instruction can be anything that ‘feels out of place’ or appears to be unusual. The idea is to mobilise ‘thousands of pairs of eyes and ears’ to identify a threat and report it. Hence, for a duration of a train journey, citizens are provided with an opportunity to take on the role of street-level intelligence operatives. This seemingly benign and monotonous activity is, however, not the only instance when civilians are called upon to monitor and report, though it does serve to normalise the idea. The British government’s Prevent Strategy, part of its counter-terrorism policy CONTEST, operationalises civic involvement in policing and intelligence gathering at a much wider and persistent scale. The strategy, under the stipulations of Counter-Terrorism and Security Act 2015, puts a legal duty on specified authorities such as health, education, probation, and local government, to prevent people from ‘being drawn into terrorism’ (HM Government 2015a, p. 18). As such, the policy turns teachers, lecturers, doctors, and social workers into agents of states, their interactions with the public become acts of surveillance, and the spaces they occupy turn into sites of pre-emptive policing. Looking at this trend of civic involvement in intelligence gathering a decade ago, when it was in relative infancy, Gill asked how this interpenetration of state security structures into communities could impact the governance of intelligence (2010, p. 48). This chapter answers this question by analysing the Prevent Strategy and its role in developing a regime of everyday intelligence. Sitting within the wider counter-terrorism framework, Prevent deals with countering violent extremism (CVE) before it culminates into violent actions (HM Government 2018). As such, it belongs to the growing field of CVE policymaking that has emerged to tackle the process by which one turns to terrorism (Gielen 2019, Neumann 2017, Stephens et al. 2021). While DOI: 10.4324/9781003205463-6

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embedded within counter-terrorism policies, the pre-emptive nature of CVE work takes it outside the realms of traditional security structures and situates policing within the heart of communities. With its focus on targeting ideas and attitudes predisposed to extremism, CVE work is operationalised through community activities to engage stakeholders (Salyk-Virk 2020). Under Prevent, this has been done by both ad-hoc approaches such as Prevent officers having tea with community groups and funding cricket lessons and more formalised practices such as placing statutory counterterrorism obligations on teachers and doctors in the conduct of their professional duties (Kundnani 2009, p. 18, Lamb 2013, p. 92, Winter et al. 2021). In this way, Prevent has not only expanded the reach of the state but has also made intelligence gathering a routine activity. By diffusing information gathering and surveillance within everyday practices of social interaction between civic actors, Prevent allows the government to demystify and normalise a process which is considered to be the preserve of men in trench coats. The CVE policy framework in general and Prevent Strategy in particular have established a new way of doing intelligence by co-opting everyday practices and sites of activities, and in the process have made intelligence gathering a normal activity for citizens tasked with these responsibilities. This chapter argues that while involving citizens in surveillance work is not a new development, what sets Prevent apart is the confluence of diverging factors that go into creating a regime of intelligence that combines the weight of statutory obligations with appeals to citizens’ sense of civic duty. Unlike previous initiatives, Prevent Strategy operates through a formalised structure that places a legal duty on different sectors to conduct counter-terrorism monitoring, but it does not solely rely on the pressure of this organised regime to ensure civilians meet these obligations. Prevent also presents intelligence gathering and surveillance as safeguarding processes to encourage civilian involvement. As the empirical findings in this chapter demonstrate, while citizens engage with Prevent as a professional obligation, they justify the surveillance work as fulfilling a ‘moral duty’ to keep their communities safe. In this way, the intelligence regime established by Prevent is novel as it is both obligatory and appeals to the citizens’ voluntary tendencies. It legitimises suspicion-making but justifies it as an act of safeguarding. And while it entrenches the practices of intelligence in daily life, it does so by masking the very idea of intelligence under a facade of duty of care. This dual approach of Prevent is not only allowing the policy to enter every facet of civic activity, its recruitment of an army of civilian intelligence operatives is creating new hierarchies amongst the citizenry. These groupings emerge as a result of securitisation of civic spaces, including but not limited to, schools, hospitals, and even people’s own homes. By placing counter-terrorism obligations on one group of citizens, Prevent casts them as agents of state and members of public who come into contact with them

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get presented as suspects, who should be monitored for signs of extremism. By presenting surveillance work as a welfare-oriented activity, Prevent embeds this suspicion within the civic psyche. Doctors, teachers, lecturers, and social workers are encouraged to cast a suspicious eye over everyone with whom they interact. By doing so, Prevent is diffusing intelligence gathering within civic activity and redefining the norms of civilian interaction. To unpack this new regime of intelligence that puts surveillance at the heart of public service and normalises it by co-opting civic ideals, this study focuses on the everyday as a ‘site of practice’ (Ben Jaffel 2020, p. 6; Nyman 2021, p. 5; Stanley and Jackson 2016, p. 230). By situating this enquiry within the mundane and routine activities of daily life, we can understand how Prevent co-opts existing institutions and practices, inducts citizens, and recalibrates the spatiality of policing and intelligence gathering. Taking this approach enables us to not only understand the new avenues of intelligence practice and research but will also help us study the scope of agency of the actors involved in sustaining these new regimes. The latter will be informed by insights drawn from semi-structured interviews conducted with frontline staff employed in health, education, local authorities, and social work in England. The sample comprised people serving different roles within these sectors ranging from school teachers to university lecturers in education; doctors, nursing staff, and therapists in medicine; and Prevent co-ordinators and social workers in local authorities. While the majority of participants had received Prevent training, those who hadn’t been trained possessed some knowledge of what the policy is and what it entails. This chapter starts with establishing a common ground between existing work on intelligence, surveillance, and CVE to foreground the intertwined nature of these areas of activity. It will then map out the establishment of the Prevent Strategy and its embeddedness in the culture of civilian-led policing. This will provide context for understanding the role of citizens in this new regime of intelligence in the final section. Using empirical data, this section discusses how citizens respond to their counter-terrorism obligations and engage with this regime, drawing out different themes that will help us to understand how Prevent has diffused surveillance activity within different facets of social life.

Intelligence, Surveillance, and CVE: Bridging Conceptual Divides This chapter is a contribution to the call to diversify the traditional approaches to studying and conceptualising intelligence activities, spaces, and actors (Ben Jaffel et al. 2020). It moves beyond Intelligence Studies’ (IS) predominant focus on state-centred interventions that view intelligence services as the main actors of counter-terrorism policing without taking into account the input of citizens in these processes (Gill 2006; Herman 2004; Richards 2012). The aim of this chapter is to shift the focus to understanding

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‘intelligence as a social phenomenon’ by foregrounding the involvement of civilians and how their mundane practices of everyday surveillance impact them as both targets and agents of the state (Ben Jaffel et al. 2020, pp. 326–328). This alternative approach to intelligence is important because this expansion of focus paves way for finding areas of activity that overlap with CVE. This section draws out these common threads and proposes that both in intellectual enquiry and practical implementation, intelligence gathering and CVE should be seen as being intertwined rather than separate phenomena. Hoffmann’s work on GDR’s recruitment of Arab students provides a good starting point in dismantling traditional frameworks of understanding the practices of intelligence gathering (Hoffmann 2020). In this study, Hoffmann explores transnational intelligence practices, but instead of solely focussing on the state as an actor, the gaze shifts to the individual level to study how agents in the GDR’s Ministry for State Security recruited Arab students as spies to monitor the activities within the Arab student diaspora. This approach enables an exploration of the power dynamics in this relationship, exercise of agency on part of the amateur student sleuths, and the creation of new knowledges and joint practices (ibid., p. 4). The study also provides a good juxtaposition to understand the changing attitudes to participation in intelligence activities. As will be discussed in the following sections, the new intelligence regimes established by CVE policies normalise civilian-led surveillance activities for the wider public, when previously, as Hoffmann demonstrates, both the recruitment of civilian agents and their intelligence gathering had to be conducted under a cloak of secrecy. This is not to say these practices do not exist anymore, however, with the expansion of CVE policies, community-led surveillance has become both widespread and regular. By leaving the confines of IS and drawing lessons from other fields of study such as International Political Sociology and Surveillance Studies, we can go a step further than Hoffmann’s account and see this changing trend in Larsson’s study of how the state has constructed and marketed the idea of ‘vigilant surveillance’ to encourage citizens to police their surroundings (2017). While it starts with an analysis of the techniques deployed by the state, this study challenges traditional IS approaches and focuses on the lived reality of these intelligence regimes. By putting the citizen at the heart of it, Larsson not only introduces them as a key player in intelligence gathering, he also investigates the impacts of this level of policing on communities. As such, this study allows us to understand how surveillance is normalised, how it co-opts civic actors and spaces, and what are the dynamics that emerge as a consequence. Petersen and Tjalve take this focus on citizen-led intelligence production to the macro level and look at the emergence of a new ‘intelligence community’ comprising not just citizens but also corporations in the private sector (2018, p. 24). They trace the emergence of this networked regime to

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the idea that security threats are becoming more elusive and this uncertainty can only be tackled by ‘activating and responsibilising industry and civil society’ (ibid., pp. 24–25). Starting from a genealogical account of these ‘democratised’ clusters of surveillance and security, like Larsson, they explore the challenges of control and accountability within this intelligence production which weaponises uncertainty and renders citizens both ‘watchmen and suspects’ (ibid.). These contributions run parallel to the cross-disciplinary work being conducted on understanding the social reality of CVE within social policy studies. However, while the research streams on intelligence and CVE are deploying complementary epistemological and ontological tools to approach the same set of security problems, the focus of intelligence and surveillance research remains on actions and directives that are understood to be either voluntary or are semi-formalised such as Larsson’s study of ‘vigilant surveillance’ or Hoffmann’s focus on students willingly participating in intelligence gathering. In these examples, we can see that it is ultimately the subject’s choice whether they take on their new roles or not. Even though an element of compulsion is present in these policies, it is subtle and delivered through clever slogans and marketing tactics. As such, while these studies have started extremely important conversations, they have not engaged with the more formalised structures of community-led surveillance. This focus can be expanded by connecting the links between the study of conventional intelligence practices, emerging forms of citizen-led surveillance, and CVE policies. This will allow us to understand a policy framework that has created and institutionalised new intelligence practices by giving them statutory status and in the process has recruited new agents of state operating within new sites. Within the UK context, the cross-disciplinary work on understanding CVE has focussed on the Prevent Strategy. Ranging from critical approaches to more policy-oriented/problem-solving interventions, a healthy number of studies have focussed on the day-to-day implementation of this policy, its consequences and challenges, and the experiences of the policy’s civilian operatives or the ‘managers of unease’ (Bigo 2002, p. 74). Moving away from ‘elite-level discourses’, these studies have instead focussed on exploring the dynamics that emerge within ground-level contestations (Thomas 2017, p. 311). Given the transversal nature of Prevent, these studies have emerged across different areas of the field exploring the policy’s impact on social work, health, and education sectors. Within social work, McKendrick and Finch have analysed Prevent Duty and the accompanying surveillance work as a threat to the very ethos of social work practice (2016). Their study looks at how the inclusion of compulsory intelligence-gathering tasks turns social work into a ‘fundamentally judgemental’ activity that targets civilians who deviate from the accepted ideological or cultural beliefs (ibid., p. 318). This is reiterated by Stanley, who explains that with the burden of statutory counter-terrorism

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obligations, social workers are now ‘caught between a professional mission of promoting human rights… and being agents of surveillance state’ (2018, p. 106). This results in a loss of trust on both sides. Forced to work under the assumption that anyone could be vulnerable to radicalisation, the social workers view citizens they serve as risky. In return, the citizens see social workers as part of the security services spying on them (ibid., p. 107). Heath-Kelly and Strausz’s comprehensive study of Prevent enactment within the British health sector showcases the contested nature of policy implementation by highlighting how medics engage with the ideas of safeguarding and surveillance (2018). This study presents a useful analysis of how intelligence activity is repackaged as safeguarding to make it more acceptable. Research conducted by Younis and Jadhav has highlighted how the addition of surveillance duties is exacerbating problems of racism within the NHS and creating a culture of fear for medics belonging to minority religious and ethnic groups (2019, 2020). Within Education Studies, research has been conducted to focus on not only the operationalisation of Prevent from early years education, all the way to further and higher education (Busher and Jerome 2020; Faure-Walker 2019; McGovern 2016; Qurashi 2017) but also the impact of counter-terrorism concerns on curriculum discourse (Winter and Mills 2020). While focussing on the different areas of social policy, most of these studies, especially on the critical side of the spectrum, have a common thread that is concerned with the addition of surveillance activity to civic conducts and everyday life. Whether it is in health, education, or social work, Prevent Duty has introduced a compulsory element of intelligence gathering in the name of CVE. This enquiry will build upon the scholarship on these issues to draw out the common themes between existing work on intelligence, surveillance, and CVE to foreground this relationship. This will also extend existing research investigating the relationship between counterterrorism and intelligence such as Richards’ analysis of Prevent and the role of intelligence (2018). While linking the two phenomena, this intervention focussed predominantly on the state-level actors such as the Prevent Engagement Officers within the police forces (ibid., pp. 397–398). Similarly, in their respective projects, Innes (2006) and Thomas (2016) have highlighted the instrumental role played by community-led intelligence in aiding the traditional actors in counter-terrorism. This chapter moves away from the study of the established structures of intelligence and expands the scope of enquiry to civilians who get inducted into this new security framework and the power contestations they have to negotiate. Bridging the conceptual divides between intelligence, surveillance, and CVE will demonstrate that while these strands of research generally occupy different spaces within academic enquiry, the conduct of intelligence and CVE activities in everyday life are intertwined with each other. The two phenomena operate in a symbiotic fashion, while on the one hand the practices of surveillance form the foundations of community-based counter-terror work, on

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the other, the operationalisation of CVE strategies contribute to the metamorphosis of the very idea of intelligence. This chapter aims to study this relationship to uncover the transversality which already exists within these practices. As such, the aim here is to explain the entangled nature of the practices of intelligence and CVE and depart from the restricted understandings of these phenomena, both in relation to each other and separately on their own. To unpack the symbiotic relationship between intelligence and CVE, this chapter will attend to the lived reality of the Prevent Duty, observed in the everyday activities and power contestations of ordinary actors. The idea of ‘everyday’ here is a ‘conceptual rather than descriptive category’ that helps us to explore how new practices emerge out of ordinary tasks and how new sites of political activity are carved out of regular spaces (Stanley and Jackson 2016, p. 299). Approaching everyday life as the sphere of activity makes it easy to identify not just who the actors are, what practices they deploy, and in which spaces they carry out their CVE obligations, it also opens new areas of enquiry where we can study ‘how’ these actors interact with these practices (Nyman 2021). While the practices emerging in the everyday sites of security correspond to the power-deferential of the different entities involved, there is scope for actors to exercise some agency. From unequivocal consent to reluctant compliance, everyday sites of intelligence provide a rich tapestry of conducts that emerge in response to these new roles and responsibilities. By situating our enquiry within the banality of the everyday, we can understand the practices that are adopted to meet and resist these obligations, thus uncovering a ‘progressive dimension of the mundane’ (Crawford and Hutchinson 2016, p. 1189). Exploring the exercise of agency within everyday practices also enables us to tap into the interactive dynamic between agency and practice that explains both the implementation of Prevent as well as how it evolves when it interacts with grassroots dynamics (Best 2014, p. 23). The following section unpacks the institutionalisation and normalisation of intelligence gathering under Prevent, the techniques that are deployed to render these practices invisible, the induction of civilians in these regimes and how they respond to this cooptation.

The Prevent Strategy: Recognising the Actors, Sites, and Practices of Everyday Intelligence The shifting of responsibility for security work and intelligence gathering to citizens in civic spaces is not a new development or unique to Prevent Strategy. As Jarvis and Lister have explained, the state has a long history of responsibilising civilians and incorporating them as elements of the security infrastructure (2010). However, the post-9/11 security panic saw a vigorous revival of the state’s reliance on ‘curtain-twitching’ or ‘behind the blinds’ surveillance instincts of the citizens (Amoore 2007, p. 216). As a result, a

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number of initiatives were launched to encourage citizens to use vigilance and good sense to spot any suspicious activity such as the ‘See it, Say it, Sorted’ campaign in the UK and ‘If You See Something, Say Something’ in the US (Larsson 2017, p. 98). Law enforcement agents visited schools to inspire a new generation of counter-terrorism officers and leaflets about preparation for terrorist attacks were sent out to households (Jarvis and Lister 2010, pp. 179–180). In more targeted efforts, the British government reached out to Muslim communities to encourage them to take up a new form of ‘active citizenship’, involving participation in anti-terror measures and internal surveillance (Spalek and Imtoual 2007, p. 193). The Metropolitan Police set up the Muslim Contact Unit (MCU) to ‘cultivate community contacts’ which could be the force’s eyes and ears by identifying the threats within. This was inspired by similar approaches which helped to develop alliances within London’s Irish community against the IRA (Jackson 2008, p. 295). Around the same time, the Home Office started efforts to develop a British CVE programme by launching seven working groups to investigate ways to prevent extremism within communities (2005). The working groups explored how women and young children could be engaged, how education and community activities could be designed to stop radicalisation, and the role mosques could play in all of this. While the focus of the working groups was specifically on Muslim communities, it was asserted that tackling extremism was the responsibility of the entire society. The emergence of Prevent, as part of the British government’s counterterrorism strategy CONTEST in 2006, sought to formalise and further normalise this citizen-led surveillance conducted in daily life. As opposed to a previous iteration of the policy, that was never released, this version of the policy was very much designed for public consumption as its operationalisation relied on public involvement: Public awareness of the threat, understanding of the measures needed to combat it, and active support and cooperation with the police are critical to the success of the strategy. (HM Government 2006, p. 3) The policy highlighted two ways in which citizens and communities would be enlisted to fight terrorism: monitoring fellow citizens for signs of radicalisation and actively challenging extremist ideas. By identifying the need to engage in a ‘battle of ideas’ for preventing terrorism and radicalisation, the policy declared that success in this fight depends on ‘all parts of the community challenging the ideological motivations used to justify the use of violence’ (ibid., p. 3). Here, the ideas of community cohesion and active citizenship were mobilised in a bid to ‘strengthen society and its resistance to terrorism’ (ibid., p. 9). Citizens were tasked with challenging extremist ideas to take on the threats in their midst head-on. The focus was as much on

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reporting suspicious activity as on monitoring ideological views. In this way, the ‘battle of ideas’ relied on community-led thought policing to identify and challenge extremist thought. To make the strategy more acceptable and encourage civilian participation, Prevent-led monitoring has been situated in what has been termed in Prevent training literature the ‘pre-criminal space’ (Hackney Council 2020). The concept of ‘pre-criminal space’ lacks a proper definition but is deployed repeatedly to differentiate Prevent from other policing activities (Goldberg et al. 2017, p. 209). It is asserted that monitoring under Prevent is not an act of surveillance or policing because the policy deals with situations where a crime has not yet been committed, hence any action that is taken under Prevent does not fall under criminal proceedings. The policing activity is presented as harmless welfare work because the individual being targeted has not committed a crime and the ‘policing’ work being carried out is an act of safeguarding, undertaken not by law enforcement, but by a citizen. While it may be designed to put a positive spin on Prevent, the idea of ‘pre-criminal space’ actually betrays the operational logic of this policy, which is rooted in the ‘pre-emptive governance of risk’ (Heath-Kelly 2017). By situating its actions in a space where a crime has not been committed, people have to act with little to no understanding of the threat. This ambiguity creates a ‘permanent ontological condition of waiting for terror’ that calls for a mass governance of unknown threats (Jackson 2015, p. 35). The lack of information about the threats in itself constitutes knowledge, which is articulated through pre-emptive actions over wide sections of the polity existing in everyday spaces. The use of unknown threats and preemptive governance also strengthens the justification for conducting counter-terrorism work through citizens. The vague nature of the threat renders traditional security channels useless because they do not have the human capacity to preside over a problem that can manifest in any form (Jarvis and Lister 2010, p. 182). This allows the state to give national security threats a ubiquitous character by claiming that the threat is everywhere because anyone can become vulnerable to extremism, therefore, the limited resources of the government need assistance from citizens. With the idea that threats could be present within anyone, everyone has to be mobilised everywhere, creating not just a multitude of intelligence sites but also an army of intelligence gatherers. Since Prevent Strategy was introduced in response to the 7/7 bombings, at the beginning this threat was squarely placed within the ‘Muslim community’ and Muslims adhering to the ‘shared values’ were called upon to take up this role (Spalek and McDonald 2010). Over the years, the focus has expanded to cover the threat of far-right extremism (Grierson and Sabbagh 2020), but the early years of Prevent under New Labour recalibrated the idea of citizenship to encourage widespread community-led policing to tackle this specific threat. The subsequent iterations of Prevent continued to draw citizens and communities further within the folds of the state’s security infrastructure.

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The 2008 Prevent Strategy carried over the trend of diffusing CVE activity within different areas of civic life through ‘leadership programmes, citizenship classes, training for imams, myth-busting roadshows, and projects using sport and drama’ (HM Government 2008, p. 3). In line with New Labour’s third-way thinking, this was presented as a democratisation of counterterrorism efforts, allowing institutions within the education sector, children’s and youth services, and religious groups to play a role in delivering the government’s security policy. By doing so, the policy identified, for the first time, different avenues of civic activity where counter-terrorism surveillance should be conducted. At this stage, these institutions were merely outposts in the ‘battle of ideas’ with relative autonomy to conduct lighttouch counter-terrorism activities. However, as will be discussed below, this policy served as the blueprint for securitising large parts of the civil society. The change of government in 2010, which resulted in Conservative politicians taking control of the Home Office, ushered in a new era of CVE with a more focussed approach. Decrying the lack of ‘value for money’ in the New Labour integration projects, the new Home Secretary Theresa May promised to not waste funds on irrelevant projects (HM Government 2011a, p. 60). While the money moved away from counter-terrorism through youth theatre groups and women empowerment programmes, the focus stayed on the importance of cohesive communities that possess a ‘stronger sense of belonging and citizenship’ and reject terrorist ideology (HM Government 2011b, p. 27). The 2011 Prevent Strategy formalised the role of public sectors institutions such as health and education and identified civilians employed in these as the frontline in the fight against terrorism: Schools can help to protect children from extremist and violent views in the same ways that they help to safeguard children from drugs, gang violence or alcohol. …Staff can help to identify, and to refer to the relevant agencies, children whose behaviour suggests that they are being drawn into terrorism or extremism. (HM Government 2011b, p. 69) There are clearly many opportunities for doctors, nurses and other staff to help protect people from radicalisation. The key challenge is to ensure that healthcare workers can identify the signs that someone is vulnerable to radicalisation, interpret those signs correctly and access the relevant support. (HM Government 2011b, p. 85) The role of civilians in counter-terrorism monitoring and intelligence gathering was given a statutory status with the passage of the Counter-Terrorism and Security Act in 2015 that puts a legal duty on specified authorities to ‘have due regard to the need to prevent people from being drawn into terrorism’ (HM Government 2015a, p. 18). With this legislative instrument, the

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‘battle of ideas’ launched by New Labour almost a decade ago culminated in the formal induction of citizens as the frontline actors in the new intelligence regime. As CVE work has turned into a legal duty, people employed in specified sectors have to monitor members of public for signs of radicalisation and refer them to Prevent if they exhibit any symptoms that fall within the policy’s extremism1 criteria. While giving statutory status to Prevent stipulations has made this new regime of intelligence a compulsory fixture in civic life, to manufacture consent for this work, the CVE policies have been diffused through the banality of daily life. Unlike the tangible policing activities which make up the coercive governing framework of the state, Prevent policing is operationalised through the existing administrative infrastructure of the health, education, and social work sectors. As the next section will discuss, by presenting Prevent as a safeguarding duty, the professionals employed in the above-mentioned sectors are told that what they are conducting is routine welfare activity, not surveillance work. The ideas of civic duty and active citizenship are also invoked to draw out the citizens’ sense of responsibility to their community. While the legal obligation to ‘have due regard to keep people from being drawn into terrorism’ serves as a reminder that this has to be done, framing these acts of surveillance in safeguarding language serves the purpose of appealing to citizens’ sense of civic duty (HM Government 2015a, p. 18). As such, Prevent uses both the obligation of a statutory instrument and the voluntary adoption of counter-terrorism work in the name of safeguarding.

Diffusing Intelligence Gathering in Everyday Life Owing to its reliance on public involvement, the focus of Prevent has been on ‘winning hearts and minds’ to not only ensure citizens’ participation in intelligence gathering but also legitimise it (DCLG 2007). Similar to the counter-insurgency tactics of securing political legitimacy amongst the local population, the framing of Prevent has relied on embedding it within inoffensive practices (Olsson 2013, p. 161). Hence rather than declaring an emergency and suspending everyday activities, Prevent has been injected in everyday life by turning social interactions between civilians into opportunities for intelligence gathering. This normalisation of security and establishment of Prevent’s cloaked intelligence regime has been made possible by what can be called securitisation through co-optation. As Dresser points out, the Counter-Terrorism and Security Act 2015, which gave statutory footing to Prevent regulations, ‘legitimised counter-radicalisation by permeating the day-to-day actuarial practices of mundane social care environments’ (2018, p. 148). The Prevent Duty Guidance 2015 underscores this point by stating that the duty does not ‘confer new functions on any specified authorities’ and the counter-radicalisation policing should be conducted along with the regular dispensation of duties by using existing

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mechanisms for understanding the risk of radicalisation (HM Government 2015b, p. 5). As a result of this, security practices have become part of the ‘everyday’ manifesting in different avenues of civic life. Safeguarding, both as a concept and the practical duty, has served as a very important tool for the purpose of sanitising intelligence gathering. Professionals employed within education, health, and social work sectors have to uphold a duty of care towards members of the public with whom they interact. While the duty is fulfilled in different ways depending on the nature of the sector, the underlying concern remains the same. By diffusing Prevent Duty obligations within safeguarding, the practice of monitoring and reporting gets presented as welfare work. Hence, while Prevent puts a legal obligation on these sectors to conduct surveillance work, routing it through safeguarding masks it as a duty of care, making it easier for professionals in these sectors to adopt and justify its stipulations. Local authorities have to incorporate counter-terrorism monitoring within multi-agency arrangements such as local safeguarding boards and youth offending teams. The latest Prevent Duty Guidance advises local authorities to ‘incorporate the duty into existing policies (…) so it becomes part of the dayto-day work’ (Home Office 2021b). Interviews with Prevent Co-ordinators working for local authorities in England revealed that since 2015 different areas of governance from Safer Communities Teams, children and adult welfare, to fire services have recalibrated their understanding of safeguarding to include protection against radicalisation. Administratively, local councils have included Prevent concerns in their safeguarding policies designed to deal with a range of welfare issues such as sexual exploitation, homelessness, hate crime, etc. (Prevent Co-ordinators, PC01, PC03, PC05). Along with this, by including Prevent in the mandatory safeguarding training undertaken by social workers, local authorities bring a wide range of service-users within the realm of security governance (Prevent Co-ordinator, PC05). This approach has been mostly successful in manufacturing consent amongst social workers who see Prevent monitoring in the same light as other concerns: I think it’s part of safeguarding, yes! Because at the end of the day, we’re protecting vulnerable adults, aren’t we? Regardless of what is happening, whether it be radicalisation or safeguarding them from exploitation, financial abuse or whatever else. It’s still preventing them from being victimised whichever way around, isn’t it?! (Independent Social Worker, LA04) I think it’s really, really connected and it was one of the things that we argued that safeguarding and counter-terrorism should go arm in arm because of the fact that there were so many vulnerable people or lonely people or isolated people, who were being groomed because of their vulnerability. (Independent Social Worker, LA06)

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The focus of these social workers on the vulnerability of individuals demonstrates that monitoring their service users for signs of radicalisation is a form of protection which is being extended to them. The same sense of duty is also inculcated within the education sector, from nursery staffers to university lecturers. School teachers have to monitor students for signs of radicalisation and incorporate the teaching of British values in lessons (Department for Education 2015, p. 5). The sanitising impact of Prevent framed as safeguarding came through in an interview with a school governor who, despite their initial scepticism of Prevent and opposition to coercive state policies, expressed relief when the policy was presented to them as a safeguarding issue: When we first became aware of it, I think we realised that really, it’s just another thing to think about as part of safeguarding, so actually it was really reassuring to find oh phew! we already think like that… (School Governor and Parent, ED07) Within Higher Education, institutions are encouraged to securitise pastoral care and student experience by managing everything from the use of Internet facilities to prayer rooms in a bid to tackle both violent and non-violent extremism (Home Office 2021a, b). Interestingly, while within schools, Prevent is diffused through well-established channels of safeguarding, in further and higher education sectors, Prevent is introducing new safeguarding practices that target both students and the staff: I think it has focussed minds on the need to safeguard students and staff from the dangers of the world in relation to obviously the threat from terrorism and radicalisation, but also focussing on the need to safeguard students and staff from all the other dangers be it mental health issues, be it drugs abuse, alcohol, gambling… it’s almost like it’s assisted in fine-tuning the safeguarding mechanisms that further education colleges provide and higher education have in place now. (Prevent Co-ordinator, PC-ED01) While the dynamics of citizen interaction and welfare within the health sector are slightly different to those of education and social work, Prevent is still implemented as a safeguarding duty, in the same vein as protection against substance or sexual abuse (Heath-Kelly and Strausz, 2018, p. 10). In mental health services, radicalisation screening of all service users has been integrated into the Comprehensive Risk Assessments (ibid., p. 3), and all medical staff have to undertake Prevent tutorials as part of the mandatory induction training. While the principle of doctor–patient confidentiality does raise concerns for some medics, routing Prevent compliance procedures through safeguarding channels puts it in the same category as other issues where breaking confidentiality is considered acceptable:

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Amna Kaleem The same principle applies when safeguarding vulnerable adults and safeguarding children. I mean you’re not going to worry about confidentiality if you know that a child is in danger from their parents… We have to maintain patient confidentiality obviously, but we are allowed to break it, if we think that public safety is at stake. This comes under that, that’s part of our professional responsibility anyway. (Trainee Psychiatrist, HE04)

This was also the case for a medic who had strong feelings against Prevent, but who displayed a reluctant acceptance of this duty: If I thought somebody was a genuine threat, I would do what’s appropriate, but I think implementing Prevent would have a serious impact on the relationship with the patient because I think word spreads amongst the patient population. (Physician’s Assistant, HE06) Conversations with frontline staff have demonstrated that Prevent also targets the networks of trust and confidence established in other areas. Within the education sector, along with monitoring activity inside the classrooms, teachers are encouraged to use their interactions with pupils’ families to observe their conducts: It was always about constantly looking for signs but it linked in with safeguarding, as you would be looking for signs of abuse or neglect, it was all under the umbrella of safeguarding and also I do remember they talked about that because you get close contact and get relationship with the parents, similarly if you’re looking at all behaviours when you’re at the school gates say social things like have they been drinking, it all came under the umbrella of looking after the welfare of the children, and to ensure that you are constantly looking for signs within the safeguarding, so Prevent came underneath that. (Former Primary School Teacher, ED10) Similarly, social work safeguarding is seen as a natural fit for Prevent-led monitoring because of the access social workers have to people’s lives: We have that access to home, bedroom, things like that… well obviously you always ask for permission but you know, you can obviously snoop around someone’s home if you really wanted to, we obviously check if there’s food in the cupboards for children, things like that, so we do have a bit of a closer access to people’s home. (Children’s and Families’ Social Worker, LA01)

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Social workers work in a relational way generally so you’re in families and you’re working with those relational issues and you might be very well-placed to pick up things that are going wrong and I see it very much as a part of safeguarding. (Independent Social Worker, LA07) This expands the reach of Prevent-led monitoring outside of the domain of specified authorities and deep within communities. So not just a pupil within a classroom but a parent at the school gates can also become subjected to surveillance while every space from a hospital’s emergency room to a family’s living room can become a site of intelligence. However, since these acts of intelligence are carried out in the name of safeguarding, they remain hidden from not just the subjects of intelligence but also its agents. As the above extracts reveal, in most cases Prevent Duty is being followed not because it’s a legal duty but because it is seen as an act of welfare carried out to protect vulnerable individuals. The co-optation of the practice of safeguarding has also led to the cooptation of the idea of safeguarding. By infusing Prevent’s risk logic within safeguarding, the individual at risk is also seen as a risk to others (Chivers 2018; Heath-Kelly 2013). As a result, while previously safeguarding efforts would focus on the welfare of the individual at risk, with the Prevent logic added to the equation, the priority shifts from protecting the individual to protecting the wider public. An interview with a trainee psychiatrist revealed that while they acknowledged the impact of Prevent referral on a patient, they balanced that out by the need to protect the wider public: It can be intense for the patient, if I think of the general public and their safety… and in the general public, that includes my own children as well, it includes my own family, let’s put it this way, if I feel threatened and I feel like this has the potential to harm the general public, which includes my own family, why wouldn’t I?! (Trainee Psychiatrist, HE04) This is not to say that there isn’t a nuanced understanding of the policy amongst those who implement it, but even when people are cognizant of the dichotomies involved in counter-terrorism surveillance and welfare of an individual, they tend to err on the side of CVE-led caution: I think it is very difficult to draw the line between what is helping someone and what is just reporting them, and I think sometimes it’s framed as safeguarding. We need to save these children from this radicalisation and sometimes its framed as a we need to prevent these children from hurting others. But I think the way my school has interpreted it, it’s very much on safeguarding route, this is about

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The risk logic also blurs the boundaries between the agents and subjects within this new regime of intelligence. Prevent imposes layers of control and subjectivity that manifest in different manners putting citizens into ‘grids of normality’ that regulate conducts (Elshimi 2015, p. 120). A frontline professional working in a specified authority is seen as an ‘agent of state’, however, they are also under state control by virtue of having a statutory obligation to implement the Prevent Duty. As such, the individual’s conduct is dictated by how they interact with Prevent. A deviation of their duty or failure to implement properly could make them a ‘subject’. Younis and Jadhav found Prevent to be etching a ‘moral boundary’ for healthcare staff who found that criticising the policy could portray them in a negative light (2019, p. 409). This fear is not unfounded because Prevent enjoys a dual control over its agents, while the policy is presented as welfare-oriented, the normative value attached to it, along with its statutory status, give it a coercive character that limits the scope of agency of citizens in this regime. A senior social worker reiterated this control by approaching commitment to Prevent as a barometer of professional commitment: If I was managing someone [opposed to the Prevent Duty]… I would be questioning their practice, up to the point of is this person fit to practice because this is the duty, this isn’t a choice, and if somebody is so opposed to it, are they in the right job? (Social Worker, LA07) The attitude of this social worker shows how outlooks are shaped by Prevent’s dual approach of combining legal obligation with citizens’ sense of duty. In some cases, the policy’s statutory status is more of an incentive to follow its stipulations, such as the case of a trainee teacher who had a very negative view of Prevent and did not support its implementation in the education sector, but admitted they would make a Prevent referral due to the duty’s statutory nature: I am legally responsible, so, if I don’t do it and then someone finds out that I didn’t do my job, I could have consequences, yeah so I don’t know, probably would do it. (Secondary School Teacher, ED03) A similar sentiment was echoed by a university lecturer who advocated implementing Prevent Duty despite opposing the idea of a police state:

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People can have their view about Prevent just like they can have their view about anything but if they are in an employment and they are under a particular legal system, they might still have to do it, even though they don’t like it and even though they might on principle oppose it. (Social Sciences’ Lecturer, ED-H01) As this section reveals, Prevent Strategy has deployed a two-pronged approach of an obligatory framework operationalised through consensual politics. To do so, Prevent has taken over the routine activities of these civic sectors and not only co-opted practices, actors, and sites within a new intelligence regime, it has also recalibrated the ideas that form the core of civil society. By introducing counter-terrorism obligations in public sectors, Prevent has made civilian-led intelligence gathering a ubiquitous activity and by packaging surveillance as welfare work, it has made policing a normative act that is not only acceptable but necessary to uphold one’s commitment to their profession and their wider community.

Conclusion: The Ever-Expanding Frontline In 2018, ahead of the first anniversary of the Westminster attack, Neil Basu, the head of counter-terrorism at Metropolitan Police, called on ‘every good citizen to be a counter-terrorism citizen’ (BBC News 2018). This invitation signals an exponential expansion in the sphere of intelligence gathering, that started with people being asked to stay alert and is now being moved to people actively joining this domestic pre-emptive war on terror. This statement shows that we are on a slippery slope to a securitised civil society. By embedding surveillance activity within welfare and safeguarding work, Prevent is entrenching a securitisation logic within the collective psyche. Once people become comfortable with the idea of monitoring others, surveillance becomes a part of civic life, whether the threat is around. In the case of Prevent, advocates have argued that along with tackling religious terrorism, the policy has also adapted to deal with the fast-growing threat of far-right extremism (Baldet 2016). This nimbleness, combined with the statutory status of the duty, demonstrates that the policy has become a mainstay of British civic life. However, not only is Prevent firmly embedded within different areas of social activity, once intelligence gathering has been normalised, it can expand into uncharted territory with ease. So far, the reach of Prevent’s intelligence regime has been limited to the public sector. The frontline is demarcated around people who despite their civilian status are in some way part of the state. Even though Prevent has securitised civic spaces such as a classroom or a doctor’s surgery, the policing is restricted within these sites of intelligence. However, as Fernandez et al. have warned, the borders of Prevent’s pre-criminal space are capable of expanding (2018). Once surveillance and monitoring have entered the civic sphere, have been

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incorporated into daily activities, and normalised as safeguarding, it paves way for a more expansive network of operatives. Therefore, Basu’s call for ‘counter-terrorism citizens’ should be taken as the natural progression of New Labour’s ‘battle of ideas’, which started as light-touch challenging of ideas, morphed into statutory obligations on public sector employees, and is now expanding to an army of counter-terrorism citizens, who receive training to ‘spot the signs of suspicious behaviour’ from the comforts of their ‘kitchen tables’ (Counter Terrorism Policing 2020). Along with expanding the boundaries of security activity, Prevent’s intelligence regime is also recalibrating social dynamics. By diffusing CVE policing within civic acts, the practices of surveillance become acceptable for the civilians implementing Prevent; this in return serves to alter the parameters of civic participation and changes the meaning of safeguarding. As a result, Prevent is creating new roles that divide citizens into agents and suspects, allies and enemies, threat fighters and threat producers. From citizens who are tasked with Prevent policing to citizens who are subjected to it, Prevent assigns new identities to entire communities. Given attitudes towards race and religion in the UK, Prevent has predominantly focussed on Muslims (Ali 2020), however, the suspicion-making immanent to the policy’s operationalisation can identify any individual or group as being at risk of extremism. This combined with the nebulous nature of the threat could result in the sphere of control widening, and even the ‘agents’ of Prevent can find themselves being subjected to its stipulations. If a civilian agent is seen as deviating from their duty to implement Prevent, they can easily become a suspect. They would be accused of failing both their obligation to adequately implement a legal duty as well as their responsibility to protect their fellow citizens. Their lack of adherence to ‘British values’ can be seen as their vulnerability to extremism. As such, while one set of citizens is tasked with intelligence gathering and surveillance responsibilities, both agents and suspects become governed entities. The conduct of frontline professionals is managed by the imposition of surveillance duties on them. The conduct of citizens they serve is regulated by proxy through the former who are inducted as agents of the state. When one actor in these spaces becomes an agent, it turns all the people they police into suspects who could pose a threat. The establishment of a transversal intelligence regime established by the Prevent Strategy has been made possible by an aggressive programme of cooptation and weaponisation of civic practices, colonisation of civic spaces, and a recalibration of the social contract. As such, we have seen the emergence of new practices, actors, and sites of intelligence that fall outside the scope of traditional understandings of intelligence. By bridging the gap between CVE frameworks, surveillance, and IS, we can identify the parameters of this new regime and chart its course that purports to expand it to erstwhile untapped areas of activity.

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Note 1 The Prevent Strategy defines Extremism as ‘Vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas’ (HM Government 2011b, p. 107).

References Ali, N. 2020. ‘Seeing and Unseeing Prevent’s Racialized Borders’. Security Dialogue 51 (6): 579–596. Amoore, L. 2007. ‘Vigilant Visualities: The Watchful Politics of the War on Terror’. Security Dialogue 38 (2): 215–232. Baldet, W. 2016. ‘Prevent Isn’t Just About Islamism – I’ve worked with a 10-year-old boy immersed in Nazi culture’. The Independent, London. Available at: https://www. independent.co.uk/voices/prevent-far-right-extremism-neo-nazi-white-supremecistislamic-extremism-a7476906.html (accessed 30 November 2020). BBC News. 2018. ‘Police Call for ‘Counter-terror Citizens’’. BBC News, London. Available at: https://www.bbc.com/news/uk-43465966 (accessed 22 June 2020). Ben Jaffel, H. 2020. Anglo-European Intelligence Cooperation: Britain in Europe, Europe in Britain. Abingdon, Oxon: Routledge. Ben Jaffel, H., Hoffmann, A., Kearns, O., and Larsson, S. 2020. ‘Collective Discussion: Toward Critical Approaches to Intelligence as a Social Phenomenon’. International Political Sociology 14 (3): 323–344. Best, J. 2014. Governing Failure – Provisional Expertise and the Transformation of Global Development Finance. Cambridge University Press. 10.26530/OAPEN_4 72457 Bigo, D. 2002. ‘Security and Immigration: Toward a Critique of the Governmentality of Unease’. Alternatives: Global, Local, Political 27 (1_suppl): 63–92. British Transport Police. 2016. ‘See It Say It Sorted – New National Campaign’. Available at: https://www.btp.police.uk/latest_news/see_it_say_it_sorted_new_ natio.aspx (accessed 17 May 2019). Busher, J., and Jerome, L., eds. 2020. The Prevent Duty in Education: Impact, Enactment and Implications. Palgrave Macmillan. 10.1007/978-3-030-45559-0 Chivers, C. 2018. ‘‘What is the Headspace They Are in When They Are Making Those Referrals?’ Exploring the Lifeworlds and Experiences of Health and Social Care Practitioners Undertaking Risk Work within the Prevent Strategy’. Health, Risk and Society 20 (1–2): 81–103. Counter Terrorism Policing. 2020. ‘CT Training at Your Kitchen Table’. Counter Terrorism Policing. Available at: https://www.counterterrorism.police.uk/cttraining-at-your-kitchen-table/ (accessed 22 June 2020). Crawford, A., and Hutchinson, S. 2016. ‘Mapping the Contours of ‘Everyday Security’: Time, Space and Emotion’. British Journal of Criminology 56 (6): 1184–1202. DCLG. 2007. Preventing Violent Extremism – Winning Hearts and Minds. London: Department for Communities and Local Government. Available at: https:// webarchive.nationalarchives.gov.uk/20070506201536/http://www.communities.gov.uk/ pub/401/PreventingviolentextremismWinningheartsandminds_id1509401.pdf

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Department for Education. 2015. The Prevent Duty: Departmental Advice for Schools and Childcare Providers. London: Department for Education. Available at: https:// www.gov.uk/government/uploads/system/uploads/attachment_data/file/439598/prevent-duty-departmental-advice-v6.pdf (accessed 31 May 2019). Dresser, P. 2018. ‘Counter-Radicalisation Through Safeguarding: A Political Analysis of the Counter-Terrorism And Security Act’. Journal for Deradicalization 0 (16): 125–164. Elshimi, M. 2015. ‘De-radicalisation Interventions as Technologies of the Self: A Foucauldian Analysis’. Critical Studies on Terrorism 8 (1): 110–129. Faure-Walker, R. 2019. ‘Teachers as Informants: Countering Extremism and Promoting Violence’. Journal of Beliefs & Values 40 (3): 368–380. Fernandez, S., Faure Walker, R., and Younis, T. 2018. ‘FOCUS: The ‘where’ of Prevent’. Discover Society. Available at: https://discoversociety.org/2018/06/05/ focus-the-where-of-prevent/ (accessed 22 June 2020). Gielen, A.-J. 2019. ‘Countering Violent Extremism: A Realist Review for Assessing What Works, for Whom, in What Circumstances, and How?’. Terrorism and Political Violence 31 (6): 1149–1167. Gill, P. 2006. ‘Not Just Joining the Dots but Crossing the Borders and Bridging the Voids: Constructing Security Networks after 11 September 2001 the Initial Version of This Article Was Presented to the ESRC Seminar ‘Networks, Mobilities and Borders in the Global System’, Oxford Brookes University, January 2005’. Policing and Society 16 (1): 27–49. Gill, P. 2010. ‘Theories of Intelligence’, in L. K. Johnson, ed. The Oxford Handbook of National Security Intelligence. New York: Oxford University Press, pp. 43–58. Goldberg, D., Jadhav, S., and Younis, T. 2017. ‘Prevent: What is Pre-criminal Space?’. BJ Psych Bulletin 41 (4): 208–211. Grierson, J., and Sabbagh, D. 2020. ‘Largest Number of Prevent Referrals Related to Far-Right Extremism’. The Guardian. Available at: http://www.theguardian.com/uknews/2020/nov/26/just-one-in-10-prevent-referrals-found-at-risk-of-radicalisation (accessed 30 November 2020). Hackney Council. 2020. ‘Preventing Terrorism | Hackney Council’. Available at: https://hackney.gov.uk/preventing-terrorism (accessed 21 June 2020). Heath-Kelly, C. 2013. ‘Counter-Terrorism and the Counterfactual: Producing the ‘Radicalisation’ Discourse and the UK PREVENT Strategy’. The British Journal of Politics and International Relations 15 (3): 394–415. Heath-Kelly, C. 2017. ‘The Geography of Pre-criminal Space: Epidemiological Imaginations of Radicalisation Risk in the UK Prevent Strategy, 2007–2017’. Critical Studies on Terrorism 10 (2): 297–319. Heath-Kelly, C., and Strausz, E. 2018. Counter-Terrorism in the NHS: Evaluating Prevent Duty Safeguarding in the NHS. Available at: https://warwick.ac.uk/fac/soc/ pais/research/researchcentres/irs/counterterrorisminthenhs/project_report_60pp.pdf Herman, M. 2004. ‘Ethics and Intelligence after September 2001’. Intelligence and National Security 19 (2): 342–358. HM Government. 2006. Countering International Terrorism: The United Kingdom’s Strategy, No. ISBN 0101688822, London: Home Office. Available at: https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/272320/6888.pdf (accessed 5 June 2019).

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HM Government. 2008. The Prevent Strategy: A Guide for Local Partners in England. Available at: https://webarchive.nationalarchives.gov.uk/20121004145409/https://www. education.gov.uk/publications/eOrderingDownload/Prevent_Strategy.pdf (accessed 5 June 2019). HM Government. 2011a. CONTEST: The United Kingdom’s Strategy for Countering Terrorism. London: Home Office. Available at: https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/97994/contestsummary.pdf (accessed 5 June 2019). HM Government. 2011b. Prevent Strategy. London: Home Office. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/97976/prevent-strategy-review.pdf (accessed 5 June 2019). HM Government. 2015a. ‘Counter-Terrorism and Security Act 2015’. Available at: http://www.legislation.gov.uk/ukpga/2015/6/pdfs/ukpga_20150006_en.pdf (accessed 25 April 2019). HM Government. 2015b. Revised Prevent Duty Guidance: For England and Wales, No. 978-1-78246-7933–9, London: Home Office. Available at: https://www.gov. uk/government/publications/prevent-duty-guidance (accessed 5 June 2019). HM Government. 2018. The United Kingdom’s Strategy for Countering Terrorism, No. Cm 9608, London: Home Office. Available at: https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/713284/CCS207_CCS021892 9798-1_CONTEST_3.0_WEB__003_.PDF (accessed 5 June 2019). Hoffmann, S. 2020. ‘Arab Students and the Stasi: Agents and Objects of Intelligence’. Security Dialogue 52 (1): 62–78. 10.1177/0967010620904305 Home Office. 2005. “Preventing Extremism Together” Working Groups, August–October 2005. London: Home Office. Home Office. 2021a. ‘Prevent Duty Guidance: For Higher Education Institutions in England and Wales’. GOV.UK. Available at: https://www.gov.uk/government/ publications/prevent-duty-guidance/prevent-duty-guidance-for-higher-educationinstitutions-in-england-and-wales (accessed 20 April 2021). Home Office. 2021b. ‘Revised Prevent Duty Guidance: For England and Wales’. GOV.UK. Available at: https://www.gov.uk/government/publications/preventduty-guidance/revised-prevent-duty-guidance-for-england-and-wales (accessed 20 April 2021). Innes, M. 2006. ‘Policing Uncertainty: Countering Terror through Community Intelligence and Democratic Policing’. The ANNALS of the American Academy of Political and Social Science, 605 (1): 222–241. Jackson, R. 2008. ‘Counter-terrorism and communities: an interview with Robert Lambert’. Critical Studies on Terrorism 1 (2): 293–308. Jackson, R. 2015. ‘The Epistemological Crisis of Counterterrorism’. Critical Studies on Terrorism 8 (1): 33–54. Jarvis, L., and Lister, M. 2010. ‘Stakeholder Security: The New Western Way of Counter-terrorism?’. Contemporary Politics 16 (2): 173–188. Kundnani, A. 2009. Spooked: How Not to Prevent Violent Extremism. London: Institute of Race Relations. Available at: https://irr.org.uk/article/spooked-hownot-to-prevent-violent-extremism/ (accessed 12 October 2020). Lamb, J. B. 2013. ‘Preventing Violent Extremism; A Policing Case Study of the West Midlands’. Policing: A Journal of Policy and Practice 7 (1): 88–95.

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Larsson, S. 2017. ‘A First Line of Defence? Vigilant Surveillance, Participatory Policing and the Reporting of ‘Suspicious’ Activity’. Surveillance & Society 15 (1): 94–107. McGovern, M. 2016. ‘The University, Prevent and Cultures of Compliance’. Prometheus 34 (1): 49–62. McKendrick, D., and Finch, J. 2016. ‘‘Under Heavy Manners?’: Social Work, Radicalisation, Troubled Families and Non-Linear War’. British Journal of Social Work 47 (2): 308–324. Neumann, P. 2017. Countering Violent Extremism and Radicalisation that Lead to Terrorism: Ideas, Recommendations, and Good Practices from the OSCE Region, Organization for Security and Co-operation in Europe. Available at: https://www. osce.org/chairmanship/346841 (accessed 7 October 2020). Nyman, J. 2021. ‘Everyday Life of Security: Capturing Space, Practice, and Affect’. International Political Sociology. 15 (3): 313–337. 10.1093/ips/olab005 Olsson, C. 2013. ‘‘Legitimate Violence’ in the Prose of Counterinsurgency: An Impossible Necessity?’. Alternatives 38 (2): 155–171. Petersen, K. L., and Tjalve, V. S. 2018. ‘Intelligence Expertise in the Age of Information Sharing: Public–Private ‘Collection’ and Its Challenges to Democratic Control and Accountability’. Intelligence and National Security 33 (1): 21–35. Qurashi, F. 2017. ‘Just Get on with it: Implementing the Prevent Duty in Higher Education and the Role of Academic Expertise’. Education, Citizenship, and Social Justice 12 (3): 197–212. Richards, J. 2012. ‘Intelligence Dilemma? Contemporary Counter-terrorism in a Liberal Democracy’. Intelligence and National Security 27 (5): 761–780. Richards, J. 2018. ‘Intelligence and Counter-Terrorism’, in A. Silke, ed. Routledge Handbook of Terrorism and Counterterrorism. Taylor & Francis, pp. 395–405. Salyk-Virk, M. J. 2020. ‘Building Community Resilience? Community Perspectives of the Countering Violent Extremism Pilot Program in Minneapolis/St. Paul’. Studies in Conflict & Terrorism 43 (11): 1011–1042. Spalek, B., and Imtoual, A. 2007. ‘Muslim Communities and Counter-Terror Responses: ‘Hard’ Approaches to Community Engagement in the UK and Australia’. Journal of Muslim Minority Affairs 27 (2): 185–202. Spalek, B., and McDonald, L. Z. 2010. ‘Terror Crime Prevention: Constructing Muslim Practices and Beliefs as ‘Anti-Social’ and ‘Extreme’ through CONTEST 2’. Social Policy and Society 9 (01): 123– 133. Stanley, L., and Jackson, R. 2016. ‘Introduction: Everyday Narratives in World Politics’. Politics 36 (3): 223–235. Stanley, T. 2018. ‘The Relevance of Risk Work Theory to Practice: The Case of Statutory Social Work and the Risk of Radicalisation in the UK’. Health, Risk & Society 20 (1–2): 104–112. Stephens, W., Sieckelinck, S., and Boutellier, H. 2021. ‘Preventing Violent Extremism: A Review of the Literature’. Studies in Conflict & Terrorism 44 (4): 346–361. 10.1080/1057610X.2018.1543144 Thomas, G. 2016. ‘A Case for Local Neighbourhood Policing and Community Intelligence in Counter Terrorism’. The Police Journal 89 (1): 31–54. Thomas, P. 2017. ‘Changing Experiences of Responsibilisation and Contestation within Counter-terrorism Policies: The British Prevent Experience’. Policy and Politics 45 (3): 305–321.

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Winter, C., Heath-Kelly, C., Kaleem, A., and Mills, C. 2021. ‘A Moral Education? British Values, Colour-Blindness, and Preventing Terrorism’. Critical Social Policy 42 (1): 85–106. Winter, C., and Mills, C. 2020. ‘The Psy-Security-Curriculum Ensemble: British Values Curriculum Policy in English Schools’. Journal of Education Policy 35 (1): 46–67. Younis, T., and Jadhav, S. 2019. ‘Keeping Our Mouths Shut: The Fear and Racialized Self-Censorship of British Healthcare Professionals in PREVENT Training’. Culture, Medicine, and Psychiatry 43 (3): 404–424. Younis, T., and Jadhav, S. 2020. ‘Islamophobia in the National Health Service: An Ethnography of Institutional Racism in PREVENT’s Counter-radicalisation Policy’. Sociology of Health & Illness 42 (3): 610–626.

5

Prison Intelligence in France: An Empirical Investigation of the Emergence of Counterradicalisation Professionals David Scheer

Introduction Faced with the mutations of the contemporary world in terms of risk detection and assessment (including terrorism), the academic and political communities need a renewal of the scientific approaches to intelligence, as outlined in the Introduction of this book. Responding to this call, this chapter will be divided into two distinct parts: the first provides an example of empirical research in the study of intelligence by focusing on the case of intelligence gathering in French prisons, and the second presents the theoretical ambition of this exercise. Both sections aim to understand how the advent of prison intelligence – and the wider involvement of prison professionals in intelligence work – is disrupting the administration and day-today work in French prisons. In so doing, this chapter raises and responds to the following question: why is the diffusion of intelligence in public service administrations such as the prison an understudied topic in existing literature, and how can this deficiency be addressed? Based on several months of ethnographic observations, the first part delves into the practices of detecting and evaluating ‘radicalisation’ in French prisons. In prisons, some staff units have been created to group together and surveil a dozen ‘Islamist terrorists’ detainees for assessment by a series of professionals for four-month periods to decide on their future prison management and prison assignment. One dimension of the functioning of these units is how they illustrate the rise of prison intelligence services. A question emerging from this observation is whether the dominant objective of the prison is to neutralise and de-radicalise, or to inform; i.e., to provide information for the intelligence services. Participation by these units in intelligence objectives is regularly presented and praised as a ‘war effort’ by the staff. It is a question of professional participation in a mission of public utility: the prevention of violent acts and terrorist projects through the collection of information held and shared within dissident groups in detention. This section will analyse the impact of prison intelligence on the decision-making process, given its strong presence and influence on practices and decisions regarding the handling of radicalised prisoners. Prison DOI: 10.4324/9781003205463-7

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intelligence services are very present and powerful; they have a predominant weight in the selection, assignment, and orientation of so-called ‘radicalised prisoners’. This section shows how prison intelligence services are able to influence the institutional and surveillance trajectories of persons prosecuted for terrorist acts with complete discretion (or even invisibility), and how they tend to disregard the opinions of other professionals (psychologists, educators, prison officers, probation officers, inter alia). The dominant position of intelligence in the decision-making process is all the more surprising since the prison intelligence officers themselves consider that their work is not accurate, due to a deficient information-gathering system. Through an analysis of doctrines, observation of practices, and discussions with intelligence actors and targets, this empirical study of prison intelligence thus offers the opportunity to problematise Intelligence Studies (IS) for not paying sufficient attention to prisons as key empirical sites for contemporary intelligence work, and to simultaneously question the analytical approach of intelligence at the French national level. Although the aim of this sociological research was not to focus on prison intelligence per se, but rather to study the functioning of specific detention units from the angle of professional practices and the prisoners’ experiences and multiple resistances and adaptations, the issue of intelligence and the importance of the use of secrecy imposed itself during the ethnographic work. I thus studied, from the bottom-up, how prison professionals integrate the intelligence mission into their daily practices, how new forms of collaboration between prison professionals and intelligence officers are shaped, and how intelligence greatly influences decision-making within the prison administration. This research has thus allowed me to study the integration of intelligence logics in an institution where intelligence was previously only a marginal mission. The second section of the chapter, which is of an epistemological nature, builds upon the ethnographic analysis of the professionals of the prison to develop a line of enquiry that goes beyond both IS and Penalty Studies (PS), and towards a sociology of prison intelligence. By challenging core assumptions both in IS (that exclude the prison from its scope of enquiry), and in PS (that only rarely address intelligence), this discussion contributes to the formulation of transversal investigations into intelligence that build connections between new sites and set of actors entangled with intelligence practices. The theoretical and empirical proposal will aim to reformulate the question of intelligence in a democracy, by envisaging a study of the extension of the intelligence culture beyond its traditional boundaries. In doing so, this section positions itself against IS’ close links with government agencies or political subsidies and refuses to promote better intelligence practices in custodial settings and elsewhere. Taken together, this chapter argues that empirically studying the ways in which the logic of intelligence dissipates in the daily practices of different professionals highlights fundamental trends in the way security issues are

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managed, particularly in relation to violent extremism. Thus, the case of French prisons shows the extent to which intelligence – as a priority mission – modifies the professional culture and actions of prison staff. Moreover, the diffusion of intelligence in prisons has a significant impact on decision-making processes and on the institutional trajectories of individuals.

French Prison in the Face of Terrorism: The Rise of New Professionals of Intelligence In order to understand the emergence of prison intelligence as a new issue in intelligence practice, it is important to consider the legal conditions behind this evolution. The legal framework for legislation on terrorism appeared in France in 1986, with the creation of investigating judges specialised in counter-terrorism. In the following years, this framework was regularly reinforced. In 1992, criminal association of a terrorist nature was declared a crime, and in 2001 the crimes of financing a terrorist enterprise and money laundering of a terrorist nature were established. In 2006 and 2008, the possibilities for monitoring and investigation in the area of terrorism were extended. At the same time, several laws set out the powers of the intelligence services. For example, the 2008 White Paper on Defense and National Security was based on uncertainties in the international environment and the risk of strategic surprises – it called for a ‘very high priority in the nation’s security and defence effort’ (2008: 59) by developing its capacities to anticipate and held intelligence as a ‘strategic function in its own right’ (2008: 125). A year later, the Military Planning Law of 29 July 2009, established strategies to identify threats and risks to national security by adding in Article 1 of the Defence Code (L1111-1) that ‘all public policies contribute to national security’ with the notion of ‘security’ replacing that of ‘defence’ (ordinance of 7 January 1959). Furthermore, this law marks the appearance of the legislator’s anticipatory intention to identify risks, prevent threats and prepare the responses of public authorities. Legislation was further bolstered with the law of 14 March 2011, on guidance and programming for the performance of domestic security – also known as ‘LOPPSI 2’ – the 2015 law relating to intelligence and the 2016 law reinforcing the fight against organised crime, terrorism and their financing, and improving the effectiveness and guarantees of the penal procedure. Finally, the law of 30 October 2017 on strengthening internal security and the fight against terrorism follows the same movement of introducing measures to prevent terrorism, extending the powers of administrative authorities (to the detriment of judicial authorities), legally instituting the normalisation and perennation of the state of emergency (Alix and Cahn 2017). Finally, the proposition of law relating to global security, adopted by the National Assembly on 24 November 2020, continues this effort to increase police powers in terms of surveillance. This stack of laws on terrorism or, more broadly, threats to domestic security illustrates both the extension

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of powers in the hands of the intelligence services and the emergence of a permanent suspicion logic (Ragazzi 2017). In this general context, prison intelligence was put in place in 2004 following the attacks in Madrid. At that time, it was a staff of 10 working at the Prison Administration Security Staff. It was dissolved in 2015 to be restored and christened as ‘central bureau for prison intelligence’ (BCRP) in 2016, in response to the Charlie Hebdo, Hyper-Cacher and Bataclan attacks which involved terrorists who had become radicalised in prison. Over time the BCRP took on about 50 professionals in the prison security division of the Prison Administration Directorate (DAP). Then, in 2019, prison intelligence was designated as a ‘national competence service’ and once again changed its name to the ‘National Service for Prison Intelligence’ (SNRP). Prison intelligence thus gradually became an essential link in the French intelligence community. The SNRP henceforth is the interface between the central administration (the DAP) and the decentralised services: it works from information collected in the 10 Interregional Prison Intelligence Cells (CIRP) gathered by local officers in the prisons, in order to collect and make use of intelligence information relating to fighting organised crime, preventing prison escape and rioting, and counter-terrorism. The professionalisation of prison intelligence in France entailed a multiplication and expansion of legal and technical instruments available to the prison administration with respect to intelligence.1 The Ministry of Justice thus found its place in the Domestic Security Code (article L. 811-4) and prison agents henceforth could be authorised to gather information on incarcerated individuals and employees working in the prison, undertake security interceptions (art. L. 852-1), wiretap private places, capture computer images or data (Art. L.853–1 and following), and collect data contained in telephones (CPP, art. 727-1 2°). These new intelligence techniques were added to the surveillance apparatus already used by prison staff, including frisking and phone tapping (CPP, art. 727-1, reinforced by L. n°2016-731 of 3 June 2016, art. 14). Thus, the administrative changes and the priority given to the fight against radicalisation in internal security are leading to a major transformation of the prison institution. The prison’s institutional culture is changing and now integrates investigative logic, intelligence techniques and a culture of secrecy (Scheer and Chantraine 2021). These institutional transformations – which go beyond the prison administration, but also appear in hospitals, schools, and social services (Ragazzi 2017; Kundnani and Hayes 2018; Martin 2018; Heath-Kelly and Strausz 2019; Awan et al. 2019; see also Kaleem, this volume) – directly led to adjustments in the practices of all professionals working in the prison. I have studied these transformations of the prison culture during a sociological study conducted in ‘radicalisation assessment units’ (RAU) in French prisons (Chantraine et al. 2018). The study is the result of 100 days of ethnographic observations in 3 French prisons and of 90 semi-structured interviews with prisoners, prison

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professionals, and prison administration directors. The RAU are temporary units assembling groups of ‘radicalised’ prisoners for assessment purposes. Depending on the results and recommendations at the end of the assessment, the prisoners, after their stay in the RAU, may be assigned to ‘ordinary detention’ in a maximum-security prison, placed in solitary confinement or in a ‘radicalisation management unit’ (RMU). Jonas,2 a guard, proudly shows a video he filmed yesterday evening in the RAU. He explains that he stayed on after his shift to do some discreet listening on conversations among the prisoners. He filmed the scene with the help of a digital camera. He shows me the video recording: Jonas, in his socks and without his service belt, moves quietly along the corridor between the cells. He sets the camera near the threshold of a cell where you can hear recordings of religious chants. After a few minutes, Jonas returns to the monitoring office, crawling on his hands and knees. He opens the door very carefully. He stands back up and walks to the office window. He places the camera so he can film the prison cell windows obliquely. A few bits of discussion can be heard along with a recording of the Quran being recited (Field notes). The rise of prison intelligence has some effects on interprofessional relationships and, more fundamentally, on the work of prison actors. As illustrated by the commitment of the guard Jonas, in the ‘radicalisation assessment units’ (RAU), all the professionals (guards, educators, psychologists and probation officers) are involved – whether formally or not and to varying degrees – in collecting information and interpreting the prisoners’ words and actions, primarily for assessment purposes, but also to provide substance for possible intelligence files. The guards working in the RAU quickly became involved in the intelligence activity. This investment can be explained and analysed through a combination of two factors: the observation skills that pre-exist the intelligence activity and the symbolic enhancement of the guard profession. Intelligence gathering gives them a new professional value. Indeed, the guards see participation in intelligence objectives as a ‘war effort’. The relationship between the guards and prisoners in the RAU, and more generally, between ‘radicalised’ prisoners and the prison administration, is regularly described in warlike terms. This ‘us vs. them’ is even more distinct than in ordinary prisons. It is a question of managing a ‘criminal population’ on the one hand, compared to fighting an ‘enemy of the Republic’ on the other. In this context, for the professionals, it means participating in a mission of public utility: preventing violence and foiling terrorist plots. The professionals whose main mission is to assess the prisoners – the psychologists, educators, and probation officers – are also at the heart of the intelligence process. These staff members are regularly in direct contact with the prisoners, during individual interviews, in order to compile the profiles

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to be used during the assessment process. Their main mission is to gather information, for example via clinical interviews, family enquiries, psychological, or actuarial tests,3 and then interpret them. Thus, if the assessment work and intelligence pursue different objectives, there nevertheless is a connection between the two activities. After an interview with a prisoner, the psychologist Maria is going back to her office. I walk with her. On the way, she stops at the intelligence officers’ office. She tears out a page from her notebook and hands it to the officer, saying: “You were right, we must keep an eye on him”. I question Maria. She explains to me that during each of her interviews she writes her personal notes on the right-hand pages in her notebook. These notes will be used for the assessment report. The left-hand pages are for “more sensitive information” or “non-objectable elements, such as intuitions or apprehensions”. Maria systematically forwards these pages to the prison intelligence officer. She also explains to me that, today, the intelligence officer had asked her to check specific information: links with other convicted persons that have been revealed by the intelligence services and that the detainee continues to deny. Maria directed her assessment interview to answer the intelligence officer’s questions (Field notes). This integration of the intelligence mission in the professional practices of the probation officers, educators and psychologists does not come about seamlessly. As Maria does, each professional must decide and distinguish what to use for the assessment and what to transmit to the intelligence services. Some cite an ‘institutional schizophrenia’ and place the priority on one or another mission in their practices, while others feel that the complementarity of both missions gives the same meaning to their work: protecting society. Prison intelligence is an activity embedded in practical constraints. Moreover, these constraints provide a good example of the implications of the increasing expansion of actors involved in intelligence. There are two kinds of conflicting issues between prison professionals (guards, psychologists, educators, probation officers) and intelligence officers (from prison intelligence services to general intelligence services4). The first directly concerns the dominant position (or the feeling that this position is dominant) of the intelligence mission. Have you seen the look of the intelligence officers? Seriously? They’re showing off. They’ve got security accreditation, so they’re more important than us. They think they’re James Bond, and we’re just a bunch of wannabes’ (John, probation officer). To this representation – real or fantasised – of prison intelligence services enjoying a more powerful position or serving a more noble mission is added

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the perception that information follows a one-way flow. While the professionals regularly participate in sending on the information requested by the prison intelligence services, the guards, psychologists, educators, and probation officers are not happy with the one-way flow. The professionals transmit information they deem sensitive but say that they receive no feedback from the intelligence services. For example, one educator regretted that prison intelligence was only visible after they finished their work with the prisoners, and not when the latter were assigned to the RAU or during the assessment. We never hear from the intelligence services unless our recommendations, given in the assessment, are not followed. As if they had information unavailable to us. Sometimes it would be really useful to have their information as well. But they never tell us anything. At the last moment, after months of work to assess a detainee, an intelligence officer will come to a meeting and say: ‘you were wrong from the beginning, we had top secret information…’. It sucks, because we provide them with information during those months (Yasmine, educator). The second issue that seems to be faced by prison professionals is related to their official mission – control for guards, clinical examination for psychologists, accompaniment and social appraisal for educators, follow-up for probation officers – and the lack of training in the use of secrecy. Each professional explains dealing with an internal conflict. The recurring request to feed intelligence files on detainees prosecuted for terrorist acts or assessed for their alleged radicalisation is often a source of anxiety. Prison professionals are not used to handling sensitive information and have the impression that they are playing on territorial jurisdiction that is not their own. First there is a question of profession. My job is to conduct a clinical interview, to provide an assessment which I then give back to the person in order to accompany him as best as possible. I have to work with my patient, whether he is a prisoner or not, whether he is a terrorist or not. But here I am asked to do another job. I am asked to secretly evaluate the person and to communicate information about their potential dangerousness. […] We are asked to do things that we are not supposed to do, that we are not taught to do, and that are not included in our job descriptions. But we still do it anyway … (Marlene, psychologist). Notwithstanding this, all professionals working in the RAU are required, to various levels and sometimes not without resistance, to provide the intelligence services with information. Whether producing information for intelligence is a top or merely secondary objective of the RAU, the pertinence of the information gathered remains essential. The longer a prisoner

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remains in the same unit, the more they are seen and the more they show as well. In the prisons containing an RAU, the local intelligence officers explain that they do not get that involved with prisoners in the assessment units, for lack of time but mainly ‘because four months is much too short to do an intelligence job’. They thus doubt the RAU’s efficiency from an intelligence point of view, in virtue of the simple idea that security and control run counter to intelligence. Indeed, security curbs the natural behaviours of the prisoners and accentuates a form of self-control that covers up the true intentions, personalities or plans of the people observed. One agent added: ‘Doing intelligence work with guys shut up in cells, that isn’t possible either’. The intelligence services therefore emphasise the added value of discreet observation whenever the prisoners make use of meagre liberties they do enjoy. Along these lines, one guard responsible for an RAU gave the example of the special way another grouping unit worked, giving prisoners more room to manoeuvre and collective moments: ‘In that other place, the terrorists go out to walk along the walkway, and then we can observe them acting naturally. They don’t notice being watched. We remain vigilant, but they don’t see anything. […] It’s not like the RAU where the prisoners know they are being assessed and observed. And in any case in the RAU we only ever see them through the peephole’ (Michael, guard). In the RAU, in fact, most of the time staff observe corridors with closed doors. The few collective activities are limited in time and frequency, which also offers prisoners greater possibilities to control their own actions, sparking more suspicion of dissembling among the observer staff. Although the RAU system itself hinders collection of useful and relevant information, a considerable number of observations is nevertheless amassed, at the same time as the prisoners, aware of being under observation, are suspected of ‘adapting’ or even ‘hiding’ their radicalisation. The problem with the RAU is that the prisoners become adapted to it. Another drawback: they don’t have mobile phones that could be exploited. A lot of information comes to us from the RAU. Maybe too much. Sometimes we receive quality information, but most of the time the information is not that pertinent (Nelson, local prison intelligence officer). This is also a regular criticism of profiling in the RAU: the lack of wellbalanced exchange between different services, the amount of information produced and the multiple filters inevitably leading to building profiles and ‘case files’ that confirm the hypothesis of dangerousness (Chantraine and Scheer 2020). This criticism once again raises questions about the quality of the RAU with respect to the production of intelligence information.

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Over and above the question of ‘good’ information, the question of the legitimacy, or even the necessity, of prison intelligence is perhaps more important. Indirectly, the people interviewed addressed it several times in a reflexive manner. While they stress the limits of prison intelligence – there is no point in collecting information on people who are behind closed doors; intelligence is monitoring empty spaces (as prisoners are contained in cells) and the quality of the information collected is questionable – they also question the link between surveillance and the restriction of liberties. Is it legitimate to monitor and collect information on incarcerated people? And outside prison walls, to what extent is it legitimate to restrict the freedom of so-called ‘radicalised’ citizens in view of the limitations raised by the same professionals in charge of doing (prison) intelligence? These questions arise in a context where, in France, some politicians are ready to adopt a new law to maintain the surveillance of suspected terrorists or radicalised people once they are released from prison by making them wear an electronic bracelet.5 To get back to the point, guards and other prison professionals, in daily contact with ‘terrorists’ or ‘radicalised’ prisoners, participate in collecting sensitive information liable to be of interest to the intelligence services and security forces, in relation with local prison intelligence officers. While this new task brings (new) value to the job of some professionals – especially the guards, heavily invested in this mission – it occasionally clashes with the assessment work. The multiplication of information circuits produces almost schizophrenic forms of professional cooperation in prison. The assessment professionals – psychologists, educators, and probation officers – regularly swing between forms of rejection and cooperation or even competition with the prison intelligence officers. As a result, the RAU professionals have developed a critique of a prison assessment tool – the assessment should initially and officially serve only to orient the prisoners towards the most appropriate detention modalities – that is gradually growing into a form of intelligence apparatus, i.e., collecting and cross-checking information in order to estimate the potential dangerousness of the prisoners. Furthermore, the guards and evaluation professionals proclaim their essential role in gathering ‘correct and relevant’ information, thanks to their direct contacts with the prisoners placed under close surveillance. On their side, the prison intelligence officers express heavy criticism of the grouping and evaluation apparatus. The RAUs are said to be a ‘bad tool’ for intelligence in virtue of both their extreme security measures that give the prisoners no room for manoeuvre and produce no information other than that induced by the unit (Chantraine and Scheer 2020) and the temporary nature of prisoner evaluation: 17 weeks, a period which does not lend itself to deep-seated intelligence work. As such, while the professionals working daily in the RAU have doubts about the relevant and efficient use of information they transmit, the intelligence officers in turn have doubts about the quality of information produced by the apparatus itself.

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In this context where no one seems to be satisfied, we can ask the question of why do prison intelligence officers continue to request information when they are aware of its low quality. Why do prison professionals continue to share their observations when they consider that this is not their job? The context of hierarchical and societal pressure is regularly pointed out: decision-makers must show their ability to act, and professionals in contact with people perceived to be ‘at risk’ or ‘potentially dangerous’ are asked to provide results. The new surveillance measures – in prison, on probation, or outside prison walls – induce schizophrenic professional behaviour for some, anxiety for others. As a senior intelligence officer said, being a spy cannot be improvised, even if the current context (in prison, here) encourages everyone to become one. Doing intelligence is not just a matter of adding up the information you receive and organising investigations. You have to be careful, meticulous. You have to sort things out, know how to make a distinction. Sometimes you have to disregard certain alarm lights that turn red. This requires experience, a wide range of knowledge about the indicators of the criminal behaviour, and parsimony in judgement. And today, anyone is being asked to play the role of intelligence officer. Again, at the briefing this morning, the head guard officer told all the guards: ‘Being vigilant is no longer enough, you have to be proactive to go and find out who will be the next Coulibaly [in reference to the prisoner responsible for the attack on a Kasher shop, Paris, 8 January 2015]’. Psychologists are also asked to detect signs of radicalisation and potential violence. And everyone does it! No one wants to miss the clue that so-and-so was going to commit an attack. And you end up with a lot of people who want to play the spy. You can’t find your way around. Look at my desk, it’s a cacophony of danger clues. If I listen to everyone, there are 60,000 potential terrorists in French prisons [60,000 being the number of prisoners in France] (Dustin, intelligence officer). In this context where no-one really has full confidence in prison intelligence, it is interesting to look at the criminal trajectories of the prisoners assigned to, and assessed by, the RAUs. In these trajectories, I have noticed a form of tautology, which I have described in more detail in other publications (Scheer and Chantraine 2021; Chantraine and Scheer 2020). The prisoners transferred to an RAU are selected based on their penal profile, completed by a series of information mainly issued from intelligence (prison and outside prison) and indicating ‘radicalisation to assess’. The RAUs are thus populated partially through intelligence information. Then, in the RAUs, the joint set of the professionals’ observations, together with the constant effort to fatten intelligence files, always implies the risk of ‘staging’ a dangerous individual, when the only elements retained are those that can be interpreted as confirming the main hypothesis. Finally, the prison intelligence services

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participate actively in decisions for transfer and assignment of the prisoners following the assessment. In the mind of the interviewees, the fact that prisoners assigned to the RAUs had already been selected for their supposed ‘radicalisation’, coupled with the fact that the RAUs apparatus objective is precisely to evaluate the degree of radicalisation, increases the risk of a more inculpating overinterpretation. The focus on radicalisation, violence, and danger thus entails the potential risk of directing the nature of the information and interpretation that end up on the desks of the intelligence services. Thus, prison intelligence, however good or bad it may be, has a significant impact on prisoners’ detention trajectories and, we can assume, on their more general biographical trajectories. This weight of intelligence in the decision-making process occurs in the absence of control and debate. Intelligence imposes itself surreptitiously but strongly on the professionals, the administration, and the prisoners.

Towards a Critical Political Sociology of Intelligence? What the Expansion of Prison Intelligence Tells Us about the Diffusion of Intelligence Logics in Public Institutions Following on from the ethnographic analysis of the everyday life of prison intelligence, the state of knowledge in IS and PS raises at least two major questions for this chapter: why have Intelligence Studies not been concerned with studying intelligence ‘locally’ in prisons in France and beyond? Why have Penalty/Security Studies – including sociological approaches to prisons – not been concerned with intelligence? A consecutive analysis of these two gaps in existing literature opens up new research perspectives. To answer the first question, it is helpful to take a look at contributions from the so-called ‘French school’ of Intelligence Studies (Jackson 2006). A similar bias can be observed in the French school of IS as in the development of IS elsewhere in Europe: a field of research whose legitimacy is rooted in a functionalist perspective – which grows stronger with terrorist threats and attacks – and is characterised by strong links between academics and government agencies, as well as marked by self-proclaimed ‘expert-criminologists’, ‘independent’ think tanks, or security consultants (see for example, Herman 1996; 2001). While embryonic (Chopin et al. 2011), the expansion of French IS follows a comparable genealogical movement as seen in Anglophone contexts (Dewerpe 1994; Len and Jackson 2004; Warusfel 2007; Jackson 2006; Holeindre 2017). Since the early 1990s, historiographical research has been initially generated in the fields of military and political history and later on, in the study of International Relations (Forcade 2012). Against this background, intelligence has gradually arisen as a scientific object on its own, mobilised to analyse the emergence of liberal democracy and the growth of the state apparatus in particular (Laurent 2004). This recourse to history in the first place can easily be explained by the use of archives that made it possible to collect declassified documents and approach the hidden face of the state, (Laurent 2003; Laurent et al. 2005). Nevertheless,

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whether they call it Intelligence Studies or not (Lyon 2007), French-speaking studies relating to intelligence are very diversified (Ocqueteau and Laurent 2019) in terms of their approaches or disciplinary lines. In any case, the functionalist dimension is less dominant,6 but most of the contributions replicate a focus on espionage, international politics, and on the effects of intelligence on foreign policy (see in particular, Cécile 1998; Baud 1999) thereby predominantly centring on foreign intelligence as the main object of study. Because of this emphasis, intelligence in prisons has been largely overlooked in existing literature, whether French or Anglo-Saxon. In addition, the opacity of intelligence agencies and other services that characterises this ‘culture of intelligence’7, or the low prestige of hidden practices as a scientific object, would explain the hermeticism between the field of intelligence and other disciplines of the social sciences (Porch 1997; Becker 2001; France 2019). Whatever the reasons, it must be said that academic contributions on contemporary intelligence are rare (Bigo 2000; Ben Jaffel 2019, 2020; Ben Jaffel et al. 2020), especially in the study of domestic security. This contribution thus fills a gap in empirical research ‘to address the effects or implications of the increasing expansion of actors involved in intelligence’ (to quote the Introduction of the book). Penalty/Security Studies have, for their part, partially underinvested in the theme of intelligence. The law sciences have sometimes taken an interest in the question of intelligence, in particular in legal changes relating to the ruleof-law, the surveillance of the population in the context of the fight against terrorism, and even the processes of perpetuating emergency legal measures. B. Warusfel (2011), among others, studies the emergence of internal security as a new concept in law, and describes a reform movement, which is nonetheless relevant for a political sociology of intelligence, and aims to integrate ‘all areas of social life’ into the national security strategy. As far as Security Studies are concerned, police sociology has taken a sustained interest in analysing police intelligence – which is consubstantial to the creation of modern police forces not only in Britain but also in France (L’Heuillet 2001; Brodeur 2003) – and the evolution of intelligence and ‘proactive research’ in a deeply reactive institution. This tends to show the problematic development of police prevention on the one hand (Tange 2003), and the compartmentalisation of the different police services on the other (Van Outrive et al. 1991).8 The recent terrorist attacks have legitimised the interpenetration of intelligence and police services. For at least three decades now, an international movement to formulate and disseminate socalled Intelligence-led policing approaches within police forces has been underway (James 2013; Sanders et al. 2015, see also McVay this volume), inspired by the canons of military intelligence and surfing on technological progress and the promotion of inter-agency partnerships. Police intelligence has been developed around issues of risk management, security, and crime linked to terrorism, usually studied and supported by action-research works that mix various approaches (Ratcliffe 2004; Harfield et al. 2008) centred on

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the opportunities offered by new communication and information technologies, related to internal security movements, the rise of expertise in information analysis (Tange 2017), the evolution of judicial investigation processes, and public–private partnerships, inter alia. The sociology of the police thus gives an important place, although existing research focuses on its historical development, the measurement of its effectiveness and more importantly ignores prison intelligence, despite the actual configuration of relations among prison personnel and intelligence services (which is worth emphasising again, are part of the police service in France) that gives shape to intelligence practices in prison settings. Even when one turns to prison sociology, intelligence is poorly studied. The few works available show the recent and important dawn of intelligence services within the prison administration (Jauniaux and Scotto 2010; Delarue 2018) with a focus on Islamist inspired violent radicalisation (Warusfel 2018). In general, prison sociology revolves around the production of a paranoid culture (Benguigui 2011), the participation of the prison administration in the internal security effort (Dieu 2013), and the development of police work in prisons (Quinquis 2016). The analysis of intelligence practices in French prisons has sought to fill these two gaps by connecting the examination of public policies ‘in action’ – by analysing how public service employees work on a daily basis, rather than relying on the effects of policies – with the study of intelligence from the angle of social actors and practices. Indeed, researching the real and concrete functioning of the RAUs makes it possible to analyse both the intramural information-gathering labour of the prison intelligence services as well as its effects on decision-making processes and the work of evaluating prisoners, and how this reconfigures the role of the prison as whole into one of identifying threats to prison and national security. Through ethnographic field observation of prison intelligence professionals, it is possible to uncover new actors and practices intertwined with the fight against radicalisation and terrorism. In so doing, and shifting away from a functionalist (or normative) perspective as identified IS towards a fine-grained analysis of the functioning of intelligence through practices and the implications of these for the professionals’ daily work as well as for the institutional and biographical careers of the inmates under watch, this investigation contributes to building knowledge on the influence of intelligence on prison decisions – an understudied research area – and further reformulate the study of intelligence along sociological lines. Indeed, having shown the inadequacy of the conceptual framework of IS and the weak engagement of penalty studies with intelligence, this chapter calls for, in line with other emerging ‘critical’ literature on intelligence perspectives (Ben Jaffel et al. 2020; Bigo et al. 2020; Introduction chapter, this volume), for a genuine examination of the functioning of the machinery of government (Thurlow 1994; Robertson 1999a,b; Herman 2001; Aldrich 2009), and in particular the study of the restructuring of intelligence services following the terrorist threat and extremist violence (Foley 2009a; 2009b).

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The question of intelligence must therefore be placed within a broader analysis of the state and its contemporary transformations within a general economy of its regalian practices.

Conclusion To conclude, this research on prison intelligence could be the starting point for further empirical studies on the functioning of intelligence, particularly outside its traditional borders: the propagation and importation of the culture of secrecy and the logic of intelligence in other institutions to serve contemporary strategies of surveillance and social control of violent extremism. Prison intelligence in France emerged amidst a broader set of administrative, legal, legislative, and institutional changes to deal with terrorism. This evolution is a political and institutional attempt to address questions raised about the prison as a factory for radicality, as well as imperatives for security and detecting contemporary threats. It also represents a major transformation in prison administration – often described in terms of inertia and self-perpetuation. The sharp rise in prison intelligence services, the importing of staff from the Ministry of the Interior, the designation of officers in charge of intelligence among prison agents and granting accreditation to consult files with sensitive information are all mutations that bring upheaval to prison culture, especially in its internal enquiry methods and ‘profiling’ of prisoners in the context of counter-terrorism. These changes have occurred in parallel with the development of specific units that group together prisoners charged with terrorist acts or ‘radicalised’. It is therefore no surprise that these units have become the main sites for intelligence information, a new mission that involves all the professionals responsible for monitoring and evaluating the prisoners. While the practices of surveillance or assessment of individuals targeted by intelligence officers (in this case penitentiary intelligence officers) are regulated by official objectives, doctrine, procedures, regulations, these are also governed by informal norms, traditions, practices and local adaptations, professional routines, singular climates, and individual initiatives. Hence, the relevance of a ‘bottom-up’ approach, through interviews and direct observations as close as possible to the actors and practices, focused on the interactions and concrete practices on the one hand, and on the subjectivities, experiences and reflexive work of the actors on the other hand. This ‘bottom-up’ empirical and ethnographic approach helps to weave the missing connections between studies of intelligence and prison studies, and to bridge the gap discussed in the second section of the chapter. Finally, it is a question of considering the production of ‘unspeakable knowledge’ about individuals identified as ‘risk’ (or dangerous) and the real effects of this ‘knowledge’ (the intel) on the biographical paths and institutional follow-up of individuals. In doing so, this chapter has unearthed a portion of the ‘the “social life” of the intelligence practice’ (Introduction chapter, this volume).

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Notes 1 The law L. n°2016-731 of 3 June 2016, reinforcing the fight against organised crime, terrorism and their financing, and improving the efficiency and the guaranties of criminal procedures. JORF, n° 129, 4 June 2016, text n° 1, art. 111. 2 All interviewees have been anonymised and their names replaced with pseudonyms chosen by the author. 3 Actuarial assessment, inspired by actuarial methods (i.e., mathematical techniques for identifying and modelling the financial consequences of uncertain events), is presented in the criminological field as ‘a risk assessment method based on a mechanical combination of empirically validated risk factors’ (Brouillette-Alarie, Proulx, Benbouriche 2013, my translation). 4 In the first place, these are intelligence agents from the General Direction of Internal Security (DGSI), but also agents from police intelligence services (the central territorial intelligence service, SCRT, for example). 5 The proposal for a ‘global security law’, adopted by the National Assembly on 24 November 2020, pursues an effort to increase police and intelligence powers in the area of surveillance. This legislative piling up relating to terrorism or, more broadly, to threats to internal security illustrates both the extension of the competencies of the intelligence services in a context of globalised risk (Beck, 1992) and the emergence of a logic of permanent suspicion that we have already mentioned (Ragazzi, 2017). 6 I deliberately exclude certain figures from intelligence ‘research’ in France, pleading for a real field of intelligence studies directly linked to the state apparatus. In this perspective, the creation of the Institute for International and Strategic Relations (IRIS) in 1991, a private association with a research centre, particularly in the field of ‘defence and security’, and the French Centre for Intelligence Research (CF2R) in 2000, an ‘independent’ think tank specialising in the study of intelligence and international security, are particularly noteworthy. 7 This idea of a culture of intelligence regularly appears in France, in scientific and institutional texts or in university programs, to designate the specialised work of clandestine research and exploitation of information within a state apparatus. 8 One of today’s debates concerns how to know where contemporary police services are situated in a movement that oscillates between the partitioning and decompartmentalisation of internal intelligence activities in relation to the other police professions (intelligence activities within the police apparatus, or outside this apparatus).

References Aldrich, Richard. 2009. ‘The Security State’. In Matthew Flinders, Andrew Gamble, Colin Hay, and Michael Kenny, eds, The Oxford Handbook of British Politics. Oxford: Oxford University Press. Alix, Julie, and Cahn, Olivier. 2017 (dir.). L’hypothèse de la guerre contre le terrorisme, implications juridiques. Paris: Dalloz. Awan, Imran, Spiller, Kaith, and Whiting, Andrew. 2019. Terrorism in the Classroom: Security, Surveillance and a Public Duty to Act. Cham: Springer International Publishing. Baud, Jacques. 1999. Encyclopédie du renseignement et des services secrets. Paris: Lavauzelle. Beck, Ulrich. 1992. Risk Society: Towards a New Modernity. New‐York: Sage Publications.

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Becker, Anja. 2001. ‘The Spy Who Couldn’t Possibly be French. Espionnage and Culture in France’. Journal of Intelligence History 1 (1): 68–87. Ben Jaffel, Hager. 2019. Anglo-European Intelligence Cooperation: Britain in Europe, Europe in Britain. London: Routledge. Ben Jaffel, Hager. 2020. ‘Britain’s European Connection in Counter-Terrorism Intelligence Cooperation: Everyday Practices of Police Liaison Officers’. Intelligence and National Security 35 (7): 1007–1025. Ben Jaffel, Hager, Hoffmann, Alvina, Kearns, Oliver, and Larsson, Sebastian. 2020. ‘Collective Discussion: Toward Critical Approaches to Intelligence as a Social Phenomenon’. International Political Sociology 14 (3): 323–344. Benguigui, Georges. 2011. ‘La paranoïa pénitentiaire’. In Georges Benguigui, Fabrice Guilbaud, and Guillaume Malochet, eds. Prisons sous tensions. Champ Social, pp. 57–87. Bigo, Didier. 2000. ‘Préface’. In Franç ois Thuillier, eds. L’Europe du secret: Mythes et réalité du renseignement politique interne. Paris: IHESI, La Documentation Française. Bigo, Didier, Diez, Thomas, Fanoulis, Evangelos, Rosamond, Ben, and Stivachtis, Yannis. 2020. The Routledge Handbook of Critical European Studies. Abingdon: Routledge. Brodeur, Jean-Paul. 2003. Les visages de la police: pratiques et perceptions. Montréal: Presses universitaires de Montréal. Brouillette-Alarie, Sébastien, Proulx, Jean, and Benbouriche, Massil. 2013. ‘Mieux saisir les outils actuariels: une analyse factorielle de la Statique-99R’. Criminologie 46 (1): 199–219. Cécile, Jean-Jacques. 1998. Le renseignement français à l’aube du XXIe siècle. Paris: Lavauzelle. Chantraine, Gilles, and Scheer, David. 2020. ‘Performing the Enemy? No-Risk Logic and the Assessment of Prisoners in “Radicalisation Assessment Units” in French prisons’. Punishment & Society. 10.1177/1462474520952147 Chantraine, Gilles, Scheer, David, and Depuiset, Marie-Aude. 2018. Enquête sociologique sur les « quartiers d’évaluation de la radicalisation » dans les prisons françaises, Rapport de recherche, Direction de l’Administration Pénitentiaire (DAP, France), Centre Lillois d’études et de Recherches Sociologiques et Économiques (CLERSE-CNRS). Chopin, Olivier, Irondelle, Bastien, and Malissard, Amélie. 2011 (dir.), Étudier le renseignement. État de l’art et perspectives de recherche. Études de l’IRSEM (9). Delarue, Jean-Marie. 2018. ‘Le renseignement pénitentiaire’. Après-demain 45 (1): 7–9. Dewerpe, Alain. 1994. Espion: Une anthropologie historique du secret d’État contemporain. Paris: Gallimard. Dieu, François. 2013. ‘L’administration pénitentiaire: une force de sécurité intérieure?’. In François Dieu, and Paul Mbanzoulou (dir.), Administration pénitentiaire et justice. Un siècle de rattachement, L’Harmattan, pp. 143–166. Foley, Frank. 2009a. ‘Reforming Conterterrorism: Institutions and Organizational Routines in Britain and France’. Security Studies 18 (3): 435–478. Foley, Frank. 2009b. ‘The Expansion of Intelligence Agency Mandates: British Counter-Terrorism in Comparative Perspective’. Review of International Studies 35: 983–995.

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Forcade, Olivier. 2012. ‘Objets, approches et problématiques d’une histoire française du renseignement: Un champ historiographique en construction’. Histoire, Économie & Société 2: 99–110. France, Pierre. 2019. ‘Méfiance avec le soupçon? Vers une étude du complot(isme) en sciences sociales’. Champ pénal/Penal field (17). 10.4000/champpenal.10718 Harfield, Clive, MacVean, Allyson, Grieve, John, and Philips, David. 2008 (dir.). Handbook of Intelligent Policing: Consilience, Crime Control, and Community Safety. Oxford: Oxford University Press. Heath-Kelly, Charlotte, and Strausz, Erzsébet. 2019. ‘The Banality of Counterterrorism ‘after, after 9/11’? Perspectives on the Prevent Duty from the UK Health Care Sector’, Critical Studies on Terrorism 12 (1): 89–109. Herman, Michael. 1996. Intelligence Power in Peace and War. Cambridge: Cambridge University Press. Herman, Michael. 2001. Intelligence Services in the Information Age. London: Frank Cass. Holeindre, Jean-Vincent. 2017. La ruse et la force, une autre histoire de la stratégie. Paris: Perrin. Jackson, Peter. 2006. ‘Intelligence and the State. An emerging “French School” of Intelligence Studies’. Intelligence and National Security 21 (6): 1061–1065. James, Adrian. 2013. Examining Intelligence-Led Policing: Developments in Research, Policy and Practice. London: Palgrave. Jauniaux, Nicolas, and Scotto, Stéphane. 2010. ‘Le renseignement pénitentiaire’. Cahiers de la sécurité 13: 51–54. Kundnani, Arun, and Hayes, Ben. 2018. The Globalisation of Countering Violent Extremism Policies: Undermining Human Rights, Instrumentalising Civil Society. Amsterdam: Transnational Institute L’Heuillet, Hélène. 2001. Basse politique, haute police. Une approche historique et philosophique de la police. Paris: Fayard. Laurent, Sébastien. 2003 (dir.). Archives « secrètes », secrets d’archives? L’historien et l’archiviste face aux archives sensibles. Paris: CNRS éditions. Laurent, Sébastien. 2004. ‘Pour une autre histoire de l’État. Le secret, l’information politique et le renseignement’. Vingtième Siècle. Revue d’histoire 83 (3): 173–184. Laurent, Sébastien, Rouquet, Franç ois, Richard, Gilles, and Lemarchand, Yannick. 2005 (dir.), L’exploitation scientifique des archives. Paris: Apogée. Len, Scott. 2007. ‘Sources and Methods in the Study of Intelligence. A British View’. In Johnson Loch, ed. Strategic Intelligence. Volume I, Understanding the Hidden Side of Governement. Westport: Praeger. Len, Scott, and Jackson, Peter. 2004. ‘The Study of Intelligence in Theory and Practice’. Intelligence and National Security 19 (2): 139–169. Lyon, David. 2007. Surveillance Studies. An Overview. Cambridge: Polity Press. Martin, Thomas. 2018. ‘Identifying Potential Terrorists: Visuality, Security and the Channel Project’. Security Dialogue 49 (4): 254–271. Ocqueteau, Frédéric, and Laurent, Sébastien-Yves. 2019. ‘Introduction’. Champ pénal/Penal field (17). 10.4000/champpenal.10672 Porch, Douglas. 1997. The French Secret Services. New York: Oxford University Press. Quinquis, Matthieu. 2016. ‘Le plan ‘Urvoas’: un pas de plus dans la transformation policière de l’administration pénitentiaire’. La Revue des droits de l’homme. 10.4 000/revdh.2904

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Ragazzi, Francesco. 2017. ‘L’évolution de la politique anti-terroriste en France depuis les attentats de 2015: anticipation et mise au pas du corps social’. Sciences Po. Centre de recherches internationales. Ratcliffe, Jerry, ed. 2004. Strategic Thinking in Criminal Intelligence. Federation Press. Robertson, Ken. 1999a. ‘Recent Reform of Intelligence in the UK’. Intelligence and National Security 13 (2): 144–159. Robertson, Ken. 1999b. Secrecy and Open Government: Why Governments Want You to Know. London: MacMillan. Sanders, Carrie, Weston, Crystal, and Schott, Nicole. 2015. ‘Police Innovations, ‘Secret Squirrels’ and Accountability: Empirically Studying Intelligence-Led Policing in Canada’. British Journal of Criminology 55 (4): 711–729. Scheer, David, and Chantraine, Gilles. 2021. Intelligence and Radicalisation in French Prisons: Sociological Analysis Bottom-Up. Security Dialogue. 10.1177/ 09670106211004824 Tange, Carrol. 2003. ‘Fortunes et misères de la prévention policière’. In Dan Kaminski, and Peter Goris, Prévention et politique de sécurité arc-en-ciel. Réseau interuniversitaire sur la prévention, pp. 95–108. Tange, Carrol. 2017. Les analystes civiles de la police locale belge. Entre fer de lance d’une police guidée par l’information et alibi de sa gestion pérenne par les chiffres, thèse de doctorat, Université Libre de Bruxelles. Thurlow, Richard. 1994. Secret State, British Internal Security in Twentieth Century. Oxford: Blackwell. Van Outrive, Luc, Ponsaers, Paul, and Cartuyvels, Yves. 1991. Les polices en Belgique: histoire socio-politique du système policier de 1794 à nos jours. Bruxelles: Vie Ouvrière. Warusfel, Bertrand. 2007 (dir.). Le renseignement: Guerre, technique et politique (XIXe- XXe siècles). Paris: Lavauzelle. Warusfel, Bertrand. 2011. ‘La sécurité nationale, nouveau concept du droit français’. In Les différentes facettes du concept juridique de sécurité – Mélanges en l’honneur de Pierre-André Lecocq, Université Lille 2: 461–476. Warusfel, Bertrand. 2018. ‘Justice et renseignement dans la lutte contre la radicalisation violente’. Actualité juridique. Pénal, Dalloz 3 (1):119–122.

6

Manufacturing Intelligence: Police and Intelligence Services in Germany Jean-Paul Hanon

Introduction This chapter explores the manufacturing and the circulation of data and processed data at regional and federal levels in Germany, and whether these data are collected and exchanged between German police forces and/or between police and intelligence services. It also provides some indications on how the circulation extends to other EU countries or foreign organisations. I have deliberately chosen to fully research a police structure situated at regional level – the BLKA1 in Munich – for various reasons. First, I believe that research in the intelligence domain has to be grounded in exhaustive empirical research, and not solely driven by postulates derived from former studies done in the security field and replicating mindsets forged long ago. It does not mean that these postulates and the ensuing research built upon credible documentary sources are misdirected or misleading. Extremely valuable intuitions resulting in sound research exist therein, but the intelligence domain requires a particular attention in the sense that it is difficult to investigate: the architectures and structures are not obvious, mapping takes time, interviews are difficult to obtain, technology is abundant and moving, cooperation processes are complex as are legislations, and practices and habits require long immersion in the services to be fully identified and analysed. Second, it allows us to understand the genealogy of intelligence connections at a lower scale, the reason why they have been elaborated, how they function as well as the processes, practices and even habits they foster among the police. Third, the research provides a base of knowledge from which the conditions of intelligence exchange and the modalities of cooperation with federal and EU levels can be derived and better understood. Finally, since the bulk of the research in the field of Intelligence Studies (IS) places the emphasis on US and UK cases, Germany can offer new findings: contrary to the US/UK intelligence apparatus, the German one is nonhierarchical by law for historical reasons, which means that regional levels are not subordinated to the federal level, and as such, are endowed with considerable margins of initiative. Moreover, a global system of electronic DOI: 10.4324/9781003205463-8

Manufacturing Intelligence 115 or digitised intelligence connections at the regional level and its consequences in terms of habits, practices and extended connections has never been fully researched. From this perspective, this chapter provides useful empirical grounds to test one of the core conceptions of IS – the intelligence cycle – and examine the extent to which Pierre Bourdieu’s notion of ‘field’ and its adaptation in contemporary work can act as a relevant alternative to analyse German intelligence as a field of power positions. Does the organisation of police labour and the intelligence cycle depend on the way electronic data are collected, processed and disseminated? Or is the so-called intelligence cycle in effect constrained by preconceived political threat assumptions and professional struggles? These questions entail a study of the place of data in the intelligence cycle and a close examination of both the security choices and the representations of violence that permeate political leaders and security professionals, knowing they are not necessarily the same. Therefore, the question also arises as to whether there is an implicit (or even explicit) agreement on the terrorist threat (and on immigration) that cuts across the police and intelligence communities, to impose itself. The hypothesis here is that the Bavarian intelligence ‘system of systems’ depoliticises data at the lower levels of collection and process and ‘repoliticises’ them at the upper level of their exchange. In other terms, cooperation or collaboration is the moment when ‘repoliticisation’ of data occurs. At the federal level, the repoliticisation of data would be achieved along the objectives pursued by the agency or by the state. They might be distinct or not. In this case, doubt and suspicion would be the direct product of that repoliticisation. Furthermore, if the intelligence cycle is constrained by preconceived political threat assumptions or professional struggles and if cooperation on terrorism and immigration is subject to implicit agreement among police and intelligence professionals, it would mean that the idea of a ‘transnational intelligence guild’ (see e.g., Bigo and Bonelli 2019) could acquire some substance and shed light on a looming reconfiguration between the human and the digital. The German intelligence world, when considered at a distance, appears fragmented by the non-subordination rule between the local, the regional, and the federal, which is strongly regulated by law, and permeated by habits and practices at local and regional levels that paradoxically enjoy large margins of initiative. Therefore, it appeared fruitful to examine if the German intelligence apparatus, bordered by thick legislations and professionally disjunct, could fit into the theory of fields. To put it more precisely, does the position of the various social actors doing intelligence in Germany form a space where any modification in the level of power held by one institution changes the position of all other institutions? I will examine the idea of intelligence as a product of transnational professional groups by focusing ‘on their level of autonomy, their place in the international system, and their specific knowledge transcending cultural

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differences, as well their sense of solidarity and identity’ (Bigo 2018), a line of enquiry running against some IS as well as IR literature that it would be of value to confront with our own empirical research. In concrete terms, we will consider if intelligence networking and exchanges, data technologies, practices inscribed in the German intelligence apparatus and their relation to the political and the legal fields may provide an empirical ground to test the definition of a transnational field in the form of transnational networks and practices of professionals ‘who play simultaneously in domestic and transnational fields’ (Bigo et al. 2019). The methodology combines open secondary sources – published books, articles, agency reports or newsletters, and public government documents – with interviews with academics, active law enforcement, and intelligence officials from the BKA,2 specialists of the BND,3 and intelligence officers in embassies. I started interviewing police officials in Germany in the early 2000s at a time when the German police apparatus underwent a major reorganisation to meet the requirements of a broader cooperation with EU police agencies. Simultaneously, both German policymakers and security professionals wanted to replicate at the EU level the nascent digitised intelligence architecture they had started implementing at regional and federal police levels, a first endeavour to promote some kind of interoperability deemed necessary to improve police labour. In 2003 and 2005, we researched law enforcement methods and border controls in Berlin and Munich for the French Gendarmerie who decided in 2008 to fund a three-year comparative research project entitled ‘The functioning of Intelligence in France, Germany and England’. From 2014 to 2018, we focused our effort on the German intelligence services and their bonds with German police forces, the BKA in particular, and foreign countries. From 2008 and after, and despite the fact we benefited from some forms of assistance and the necessary credentials, we resolved to systematically cross-check the interviews led at local, regional, and federal levels to identify possible loopholes and to compare what we were told by the officials working on strategy and in prospective departments with their concrete translation in the field. Regarding intelligence services, we mainly (but not exclusively) interviewed intelligence liaison officers in various embassies. Rather than direct queries, we oriented our questions towards patterns enabling comparisons between foreign intelligence services and once again cross-checked the answers. Finally, we compared our interview findings with the relevant pieces of legislation, police, and intelligence service laws, rules, and doctrines. We also had the chance to be immersed in the different departments and offices of the BLKA for a period of time long enough to systematise interviews, examine the different intelligence platforms and map their connections by tracing their historical and technical linkage. For obvious reasons, the name, position and posting of officials related to intelligence matters, whatever agency or force they belong to, will not be mentioned.

Manufacturing Intelligence 117 How has a regional government conceived, set up and gradually developed a system of interconnected intelligence platforms and how does it work? What does the investigation of intelligence from a ‘regional’ perspective imply for broader conceptions of intelligence? The first section analyses the manufacturing of intelligence in Germany by mapping out key actors and practices in the field. Against this background, the second section further dives into the ‘inside’ of the intelligence architecture from a regional angle, by looking into the Bavarian police, and provides ample empirical evidence to question the prevalence of the ‘intelligence cycle’ in the world of police labour in the next section. The third section provides insights to assess how digitised intelligence has changed the traditional relationship between intelligence and law enforcement by changing the borders of police labour in terms of interoperability. As an alternative to the limitations of the intelligence cycle, the fourth and last part addresses German intelligence as a field of power relations.

Manufacturing Intelligence: The Global Architecture Even if the Bavarian criminal police is not subordinated to the federal level, namely the Federal criminal police (BKA), its intelligence architecture is inscribed in the general organisation of the German police forces and intelligence services. A brief outline of the latter allows one to understand their overall level of connection and make the whole process of intelligence manufacturing more relevant. Police Forces and Specialised Services The forces and associated intelligence apparatus in Germany comprise three federal police forces – the Federal Police (BPOL), the Federal Criminal Office (BKA), and the Federal Customs Service (BZA) – 16 regional police forces (one per region), 3 intelligence services – the foreign intelligence service (BND), the Federal Office for the Protection of the Constitution (BfV)4 which is the domestic intelligence body and the military counter-intelligence service (MAD) – and 5 specialised coordination services,5 among which the Joint Counter-Terrorism Centre (GTAZ)6 functions as a permanent intelligence centre gathering members from all forces, agencies, specialised services, regional, and federal ad hoc ministries. As such, it provides threat assessments and operational information exchange to the forces and intelligence services altogether. Each police force, regional or federal, is governed by its own law. Not only has each region (Land) its own police and associated intelligence department, but neither the former, nor the latter are subordinated to the federal level. Consequently, regarding police and intelligence, each region conceives, devises, funds, and implements its own policy supported by the equipment and the budget deemed to be necessary for the forces. All regions are competent for public security, criminal police, the fight against terrorism and, since 2018, cybercrime. Regional police forces such as the BLKA are

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allowed to collaborate or cooperate with neighbouring Länder and/or neighbouring foreign countries without asking for federal permission. Police intelligence centralisation is ensured at the federal level. The BKA is qualified to sustain intelligence centralisation and coordination on the whole territory. It also provides scientific and technical support to the regions (Länder) and IT-information for German law enforcement agencies through the national INPOL database. It interlinks with the Schengen Information System (SIS), the Automated Fingerprint Identification System (AFIS), and the Anti-terror Database (ATD). It is a prime partner for EUROPOL.7 The INPOL-NEU database,8 derived from an already-existing Bavarian database, set up and managed by the BKA, appears as the most accomplished example of a centralised database. INPOL-NEU ‘Zentral’ (for a critical view, see Busch 2003) is managed and fed by the BKA and data collected from the SIS, EIS (Europol Information System), ZEVIS (German Information system on Traffic and Transportation), and AZR (Register for Foreign People). INPOL-LAND is operated and fed by the regional police forces without federal supervision and decides on its own if this information can be made available for another police force. Each police force and intelligence service is allowed to use the information stored in the database. However, the regions have the obligation to transmit all the categories of information relevant to the fight against terrorism. German Intelligence Services Until 2000, police and intelligence services’ databases could not be interconnected and data exchanges had to be authorised by a judge. Databases managed by federal police agencies were not allowed to communicate with each other and information exchanges between regional police forces and federal agencies were forbidden unless a judicial warrant was issued.9 In 2001, 2002, and 2015, new legislations on domestic security10 aiming at combatting terrorism reorganised the cooperation process between police forces and intelligence services in-depth and made criminal data available for the three intelligence services. The 2001–2002 laws11 rest on the idea that the security measures the least detrimental to the exercise of freedom and rights granted by the constitution cannot apply to those who do not respect the German rule of law. Far beyond that, further legislations have broadened the competences of police forces and intelligence services to the extent that ‘the radical convictions of an individual may translate into criminal behaviour or act’,12 which modified the police and intelligence operating systems by placing ‘conviction’ (i.e., suspicion) at the heart of the intelligence and surveillance process. The three German intelligence services have direct access to INPOLNEU and are systematically recipients of police data and information. Conversely, police forces can only access intelligence data if, as we were told, they answer the two following questions: ‘do you absolutely need this information?’ and ‘what are you doing with it?’.13

Manufacturing Intelligence 119 As mentioned, new legislation has widened the competences of the three German intelligence agencies. Concretely, the BfV received the mission ‘to collect and exploit all information aiming at harming international understanding’. This enlarged mission included henceforth the surveillance of financial transactions, the increased surveillance of suspicious individuals, and the setting up of a common database on Islamist terrorism with the BKA, which constitutes a real breach with the separation on information sharing between federal police information and the intelligence services. Finally, the law governing MAD,14 the Military Counter-Intelligence Service, underwent major changes. In 2004, the service was granted the screening of the German forces deployed abroad and, in April 2012, a separate joint department (Einsatzabschirmung) was set up to regroup all the tasks pertaining to counter-extremism, terrorism, intelligence, and sabotage. In the same vein, the service was allowed in 2017 to extend the collection of information beyond national borders, and to exchange information and data with its counterparts, which broke with a long-established tradition of non-cooperation between German military intelligence services and others (Müller 2016). In 2017 also, the service became directly subordinated to the Ministry of Defense, a statutory change made to ease cooperation with all other services and authorities.

Manufacturing Intelligence: The Case of the Bavarian LKA (BLKA) As mentioned in the introduction, this chapter is an attempt to map out the manufacturing of intelligence at the German regional level by reflecting upon the Bavarian intelligence structure as it is the most advanced one in this domain. Building upon the analysis of this police intelligence architecture, I will here examine how the end-product delivered by the different intelligence platforms discussed in the previous section may nurture police practices and manage cooperation but also generate federal tensions. In an ideal world, the German police intelligence concept is based on the rejection of excessive centralisation in order to maximise local impact on the citizens. The underlying idea is that the regional police must generate trust as a factor of proximity. Trust and proximity will then determine the financial resources allocated by the Land to the police. According to the former head of the BKA, ‘the trust the Bayern population puts in their police is directly translated into the potentially available (and voted) budget we need’.15 The idea behind this statement is to design and gradually set up an intelligence architecture based on interconnected intelligence platforms, allowing efficiency at a lower cost, with a lesser number of police officers, deployable to neighbouring regions. In practice, intelligence activity done by the Bavarian police follows a classical two-step process: threat analysis, and automated collection and primary analysis.

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Threat Analysis BLKA first relies on intelligence analysis released by the BKA, the BPOL, and the BfV. It covers four main domains, namely, organised crime, illegal immigration, antiterrorism, and cybercrime. The analysis pictures a complete threat assessment of the main trends that should be dealt with. From this ‘state of the art’, the BLKA then issues its own analysis and assessment16 focusing on Bavarian criminality, organised crime, and the fight against terrorism. The main analysis document tackles police objectives, the state of the police cooperation with the two ministries of justice (regional and federal), legislative matters, collaboration with the intelligence services, interconnections with police, and intelligence databases considering the latest legislations in use in the EU, and federal and international police and judicial cooperation. Automated Collection and Primary Analysis: The IGVP-IGWEB and GLADIS Platforms IGVP is a system which allows for the collection of all repressive and preventive information and authorises navigation in a corpus of knowledge with a system of key-words associated with each category of knowledge. The stored data and information receive automatically a level of access. The system can trigger an alert if the information is already stored in INPOLNEU. If not, INPO-NEU is automatically fed with the relevant information. IGVP is associated with a search and analysis tool called IGWEB. Every day, IGWEB performs a full search on the Internet and police intranets about a particular type of criminal activity, either upon request by a specific police force or automatically when a criminal activity has reached a level which has a local impact. IGWEB systematically releases factual documents of incidents and automated analysis reports indicating major findings, trends, new facts, and conclusions drawn from the analysis. These documents may be transmitted, if necessary, to other regions, the federal police, and even Europol. IGVP-IGWEB is connected to a mapping system called GLADIS which can geocode geographical data linked to a police ‘event’. GLADIS allows for the location of a series of events, a connection between these events, and provides a historical background and a description of the individuals involved in criminal activities. In addition, GLADIS provides an expertise system designed to enhance criminal analysis. The EASY Platform EASY is an analysis and investigation system,17 fully financed by the Bavarian Land, and oriented towards criminal case investigation and operational planning. The system is embedded in the IGVP-IGWE-GLADISINPOL loop and was initially developed to facilitate full-scale investigation,

Manufacturing Intelligence 121 subject to media and political concerns. The system functions mainly, but not solely, from phone tapping and interceptions by generating telephone numbers of subscribers and their connections. The criminal information collected and analysed through EASY results in the ordering of the different tasks to carry out during the investigation. EASY also makes it possible to identify loopholes in intelligence, to store and save the information on an ongoing enquiry in a very detailed way, and to reconnect the enquiry to another case if need be. Users are compelled to enter relevant information according to a standardised and logical procedure. The AKIS Platform 18 Central to AKIS is the preventive identification of terrorist actions perpetrated by Islamist groups. The platform was born out of a recommendation of the Centre for Strategic Innovation (SIZ) which emphasised the need to collect specific counter-terrorism intelligence and detect risk groups19. AKIS is organised along with a steering committee, a survey analysis committee and a body in charge of updating the collected information and responding to national or European information requests. The BLKA Control Room The control room aims to manage police intelligence and activities in a zone comprising Munich and its surroundings.20 The room comprises three main cells. A first cell is dedicated to receiving calls and recording their specifications through a software named FELIS.21 FELIS provides automatic geographical location of phone numbers, a detailed display of the potential investigation zone, the geocoding of building numbers and the inhabitants’ addresses. A second cell manages patrol interventions and informs on the available means. The third one provides the patrols with the information they need and collects the reports that are automatically recorded.

Digitised Intelligence and Police labour: Considerations and Limits The description of the intelligence manufacturing process in Germany provides some material to examine the integration of the collected electronic data in the social worlds of the police, and whether it improves, or not, labour efficiency. It also questions the importance of the ‘intelligence cycle’ as a method, as well as the intrinsic value of intelligence and its politicisation. When interviewed, BLKA officials made clear that the whole intelligence system, designed as a ‘system of systems’, should constantly balance the intelligence requirements of regional police efficiency and the legal and federal obligation to provide ‘adequate’ information to the upper intelligence platforms of the federal police forces. Indeed, police efficiency

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would demand the overall intelligence effort to be directed to the Bavarian police force in the field and, in parallel, relevant data to be transmitted to federal police forces and intelligence services. In practice, the whole sequence of collection and analysis unfolds in the following way: A

B

C

It belongs to the police agent to select the data or the information s/he assesses as relevant and in accordance with the criminal analysis documents released by BLKA analysts. Chosen data and information feed the different platforms according to their specificity once they have been categorised by analysts. Categorised data feeds in turn the INPOL-NEU database. Conversely, federal databases can be interrogated by the BLKA platforms. Collected data and intelligence outputs are passed on to the upper federal structures or organisations if the BLKA deems it necessary.22 Platforms generate analysis documents such as case registers, maps, and reconstituted networks that will be directed to the police force in charge. Nonetheless, BLKA officials claim they have conceived the networking of intelligence platforms not as a tool to centralise information but as a global instrument for information management and analysis,23 hence the high number of analysts employed by the Bavarian police force.24 The ultimate objective of the whole system would rest on its capacity to provide synthetic analyses from case studies on an identified threat.25

We therefore spent time in the Munich BLKA police control room to research how the end-product delivered by the different intelligence platforms was translated into police modus operandi. We wanted to examine whether the development and implementation of such an intelligence system had deeply changed the organisation of the work, the training of the force, and the recruitment, thus forging new types of relations, new dependencies, and new rules. We first realised that intelligence digitisation had actually reconstructed trust, or more exactly, layered it according to specialisations and type of activities, generating forms of ‘brotherhoods’ with their own habits, practices, and mindsets that are solidified by differences in recruitment, training, and salary. We then found that electronic intelligence and automated classification could impede or at least compartmentalise overall knowledge and might restrict police work in the field as police officers are, to some extent, ‘predirected’ at the very start of the enquiry. One of the interviewed BLKA police officers went as far as to say: ‘when I leave the station, I know if I must turn left or right’. However, this apparent shift from past police labour must be subject to a more fine-grained analysis. The world of the police officers deployed locally is one of solidarity based on past investigations and solid practices that have been well-tested and a desire to reconnect clues and evidence in the criminal matters they are specialised in. The information or intelligence they receive from the control room is most of the time considered as helpful assistance that needs to be confirmed by their own

Manufacturing Intelligence 123 knowledge and the ongoing investigation, a condition judged essential to maintain the operational efficiency that remains their core value. Thus, the interviews we conducted confirmed the observations made by Gary Cordner and Kathryn Scarborough whereby … at the local and state levels, police officers in the field frequently act alone and without immediate supervision. Much of their work involves making ‘low visibility decisions’, especially when an officer’s decision does not result in a report or an arrest, and if an officer’s decision does not result in a report or arrest, it probably will not produce any official information for later analysis. (Cordner and Scarborough 2010) This is a view shared by Peter Manning as well, for whom … information in police departments can best be characterised as systematically decentralised. Often, primary data known to one officer are not available to other officers because they are stored in the officer’s head or personal notes”. Moreover, “all essential police knowledge is thought to be contextual, substantive, detailed, concrete, temporally bounded, and particularistic. (Manning 2008) In sum, ‘low visibility decisions’ in a networked structure is still a daily practice even if the conditions of their production have changed. Data received by police officers in the field are, more than often, considered as raw material that needs recontextualisation and those they sent to feed the intelligence platforms are at best decontextualised or even incomplete. We also paid special attention to data related to terrorist activity since the distinction between repressive and preventive data, i.e., between raw data and information, was, and still is, a legal duty. Answers to our questions were ambiguous: we were told that police officers in the control room could choose (or not) to feed the relevant platform and if they were unsure, they could ask analysts or police supervisors. In practice, we found the distinction untenable. The human assessment of which data is liable to pertain to the terrorist threat is, in fact, preconstructed by the documents of intelligence analysis released by the BKA, BPOL, the BfV and the BND and are indicative of the ongoing terrorist trends and the signs that electronic traces should confirm. We found, when reading police intelligence analysis documents over several years,26 that they systematically reached forms of consensus also espoused by EU agencies such as Europol or Frontex. Since the electronic traces related to these trends are standardised and categorised under the form of registers in the relevant intelligence platforms (AKIS and IGVP), data are indeed assigned to predetermined registers echoing professional and political considerations on what the fight against terrorism should be.27

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Has digitised intelligence changed police labour in Bavaria? Not exactly, in the sense the BLKA officials stated. Examining the integration of the collected electronic data in the social worlds of the police shows that traditional police practices at the operational level naturalises or depoliticises data which is recontextualised according to a predating culture of investigation. Conversely, data are politicised at the upper level of their exchange when consensus is reached on a threat whose importance transcends police and intelligence agencies’ requirements, struggles, and political differences. We could even say that data are politicised a second time when it is assigned to specific registers nurturing the various conceptions security professionals may have. As a matter of fact, manufacturing intelligence appears as a constant depoliticisation–repoliticisation process. As a consequence, I have questioned the relevance of the intelligence cycle as a rational process since the political or professional demands initiating the cycle are, in fact, preconstructed by security representations that artificially legitimate a system of intelligence platforms whose outputs are in turn reconfigured by practices, causality, and past investigation experiences. Given that empirical findings diverge from the traditional understanding of the cycle as a rational and neutral process, and indicate a diverging practice, it is worth mobilising and testing another concept to make sense of German intelligence: Pierre Bourdieu’s notion of field.

Reconstructing the Field of German Intelligence Does the position of the various social actors doing intelligence in Germany form a space where any modification in the level of power held by one institution changes the position of all other institutions? This question implies to determine what kind of power is at stake for the three professional institutions we have so far examined: the BLKA, the BKA, and the BND. When interviewed, the BLKA officials made clear that their level of autonomy was constrained by constant bargaining between the regional and the federal, a polite version of the persistent struggles opposing the Bavarian criminal police to its federal counterpart. In the BLKA’s view, autonomy is seen as the capacity to secure sufficient leeway and leverage to make sure that information sharing with federal police will not impose rules or legislations and forced collaborations that would undermine the ability of the BLKA to act on its own. This attempt is deemed all the more necessary since it must counter the whole effort of rationalisation the federal state is conducting through the latest reforms induced by the BKA and the BND – reforms that aim at networking intelligence and investigation activities at the federal level and enhance foreign cooperation. In May 2018, despite the EU legislation for data protection and strengthening of data protection laws in Germany following the Constitutional Court ruling on the new BKA law, the Bavarian Land enacted a new police law substantially reinforcing police powers. The political majority, ignoring popular protest all along the

Manufacturing Intelligence 125 year 2017, backed by the police, drew from the constitutional court’s ruling the notion of ‘impending danger’ meaning the police is authorised to infringe civil rights when assuming a danger is looming.28 The BLKA can thus use pervasive measures like telecommunication surveillance, online searches, hacking via Land trojans as preventive instruments, but also, video surveillance, DNA tests, electronic bracelets, and drones, inter alia. The law goes as far as authorising the mandatory wearing of an electronic bracelet by anybody suspected to represent an ‘impending danger’, even if this danger cannot be proved and to detain the same person for 30 days, a duration that can be renewed indefinitely.29 The new 2018 Bavarian Police Act must be viewed consequently as a major U-turn in the long quest for police and intelligence autonomy at the regional level because it has resulted in the extension of police and intelligence power not only of the German Federal Criminal Police but also of the BND.30 Not surprisingly, the struggle for the manufacturing of intelligence at regional levels, considered as a tool for ever greater autonomy and empowerment, has triggered a federal response under the form of new BKA Laws31 seeking for the standardisation and harmonisation of the information and data exchanges between regional police and federal forces. What is at stake for the BKA is the ability to bypass regional police legislations to impose its own data criteria and police selectors to harmonise criminal intelligence analysis while ensuring compatibility with foreign police agencies. Harmonisation is deemed all the more vital since the intelligence technology of BLKA, funded by Bavaria, can be made available to regions expressing vested interest in an intelligence apparatus. The available intelligence technologies can be partially replicated and/or adapted by the purchaser to their needs and available financial resources. This whole process of regional marketing has ended up in multiple intelligence systems and sub-systems that have generated new regional legislation and increased competition. As soon as 2017, almost every German region32 was expanding or preparing to expand police powers,33 which forced the Conference of the Interior Ministries (IMK) to introduce a ‘Police Law Model’ in an attempt to harmonise the different regional police laws.34 As a result, the BKA Act in its present version grants the BKA ‘all the various investigative and surveillance powers Germany’s other law enforcement and intelligence services had been accumulating – sometimes in piecemeal reforms – over decades’. The objectives of the agenda ‘Polizei 2020’ is nothing but the logical conclusion of a long process of rationalisation of the complete intelligence and investigation spheres.35 In this regard, the last attempts of the regional intelligence services to extend their intrusive powers cannot be read as the simple product of a dynamic enabling a push for ever more sophisticated intelligence tools. Rather, it casts a harsh light on the struggles against the gradual constitution of a comprehensive intelligence apparatus at the federal level oriented towards international cooperation which would streamline the inputs of the regional intelligence structures.

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As for the BND, the effort is focused on avoiding that the surveillance of communications within Germany will not fall under the Code of Criminal Procedure and the requirements of the Basic Law when conducting surveillance of German citizens or foreigners abroad. Consequently, and parallel to the re-enacting of the BKA laws, the federal government in December 2016 granted the BND with new comprehensive powers.36 The Act allowed the BND to intercept communications, gather and process all content and traffic data, without specific reasons. Though the surveillance of communications falls under the Code of Criminal Procedure, the BND is not required to have any concrete suspicion or any court order to engage in ‘strategic surveillance abroad’.37 Surveillance can be conducted merely for the purpose of obtaining ‘information of significance for foreign and security policy’. In practice, the 2016 BND Law also assumes that the BND is not bound by the basic law when conducting surveillance of foreigners in foreign countries. Following a complaint filed by The Society for Civil Rights,38 the Constitutional Court ruled that German State authorities, BND included, are bound by the Constitution at all times, in all locations and regardless of whether the target is a German or a foreign national.39 Indeed, the Constitutional Court declares that mass surveillance conducted by the BND is illegal and therefore invalidates all exchange of information with other countries, which recasts the scope of the cooperation with the federal police forces and foreign countries. When considering the different pieces of legislation enacted to protect the particular valued resources (or ‘capital’ to use a Bourdieusian terminology) of the three agencies and the condition of their enactment and implementation, we subscribe to the idea of a space characterised by the antagonist positions of the various actors doing intelligence, where any modification in the level of power held by one institution, whether it is law enforcement, justice, political bodies, or any others, change the position of all other institutions. Centralisation and push to create in Germany ‘a common, modern, unique information architecture gathering federal and regional police and intelligence agencies’, as well as the ever-increasing intelligence regional power and the ability to bypass the constitutional laws obstructing surveillance shape the capital that is at stake for each agency and that must be maintained. Another question that was taken into account when considering the relevance of the concept to our object is, do various agents, operating in and through structured and structuring fields, produce forms of expertise and interpret concepts according to their sole own interest? Our attempt to study a regional system of intelligence platforms and to reposition it within a federal intelligence structure outlines cultural changes, different practices, and shows how trust is reconstructed according to new specialisations and forms of competing expertise. We attempted to demonstrate that struggles between agencies rest on a double and antagonistic push toward autonomy

Manufacturing Intelligence 127 and centralisation and we tried to give substance to what capital is at stake. If we admit with Bourdieu that ‘field is history whose structure is the very result of struggles waged by actors occupying antagonist positions making history a mode of existence, or more specifically, a state of the balance power for the acquisition and the determination of the capital pertaining to the field’, we agree that a transnational field is constituted by networks and practices between and amongst professionals who act at various nonhierarchical ordered scales of the transnational, national, and local. In this sense, the research acknowledges that data are generated and circulated through structured and structuring fields, in and through which various agents and their interests generate forms of expertise, interpretation, concepts, and methods that collectively function as fields of power and knowledge (see also Madsen 2016). I am not entirely convinced by suspicion being the sole criterion defining the value of data, and even less by the assertion that agents collecting data form a ‘community of suspicion’ for their own particular interest (Bigo and Bonelli 2019). The difference between suspicion and data linkage is not sufficiently established, nor the particular interest of all the agents in the field. When observing the work of the BLKA agents in the field, the place from which intelligence platforms are fed, we did not find that suspicion was the primary gauge of the police information received but rather the relevance of the data resulting from the information related to identified police activities in the field. Moreover, we do not see what advantage there would be for the good conduct of investigations to nourish platforms with data oriented by suspicion, or what would be the particular interest of the agent in doing so. However, we are convinced that suspicion as a form of politicisation is prominent at the upper level of the data exchange when it comes to reaching consensus on a threat whose importance transcends police and intelligence agency struggles and political differences as well. We are also convinced that suspicion is a key element when data are categorised according to the various conceptions of security that professionals may have. Consequently, we acknowledge that the whole process which ends up with predictive policing, watch lists, models, and scenarios targeting particular segments of the population is a consequence of suspicion.

Conclusion Studying the manufacture of intelligence in Germany is an undertaking full of paradoxes since the research tends to demonstrate that the ultimate goal of all the reforms in the intelligence field pursued at the regional or federal level does not consist in improving dramatically the conditions of cooperation with other agencies, but in preserving, maintaining, or augmenting their respective power capital. Fragmentation, rivalries, and pushes for autonomy are constantly shaping a space where the respective position

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of all the actors depends on their disruptive power. One of their unsaid goals, consistent with our findings, is the willingness to influence the ongoing construction of the EU police information system through the norms, processes, network infrastructure, software, and modus operandi that have already been developed nationwide. It remains to be seen if these agents promoting intelligence networking will continue to operate in and through structured and structuring fields and produce forms of expertise, interpretation, concepts according to their (sole) interest (Bigo and Bonelli 2019).

Notes 1 The ‘Bayerisches Landeskriminalamt’, i.e., the regional police office in the Bavarian region. 2 ‘Bundeskriminalamt’, i.e., the Federal Criminal Police Agency. 3 ‘Bundesnachrichtendienst’, i.e., the Federal Intelligence Service. 4 ‘Bundesamt für Verfassungsschutz’, i.e., The Federal Office for the Protection of the Constitution. 5 GTAZ: The Joint Counter-Terrorism centre; GASIM: The Joint Analysis and Strategy Centre for Illegal Immigration; GETZ: The Anti Extremism and Terrorism Centre focusing on politically motivated crime; GIZ: The centre against Islamist terrorism on the Internet; NCAZ: The national Centre for Cyberdefense. 6 ‘Das Gemeinsame Terrorismusabwehrzentrum’, i.e., The Joint CounterTerrorism centre. 7 EUROPOL was founded as a mirror of the BKA, and at the start, headed by former BKA Presidents. 8 INPOL-NEU (Informationssystem der Polizei: Police Information System) allows access to Suspicious individual, convicted and Jailed; Exact location of dwelling (number street, number of people living in, names); False identity; Visa, embassy, duration, passport number; Fingerprints, Photos, tattoos; Identification of an individual from car registration; Physical description of an individual; Driving licence and licence suspension; Vehicle identification documents. 9 Bundeskriminalamt Gesetz vom 7. Juli 1997 (BGBl. I S. 1650), das durch Artikel 2 des Gesetzes vom 1. Juni 2017 (BGBl. I S. 1354) geändert worden ist [Law on the BKA published on 7 June 1997 whose Article 2 was amended in June 2017]. 10 Nach dem 11. September 2001: Maßnahamen gegen den Terror, Bundesministerium des Innern, 05–2004 [After 11 September 2001: Actions against Terror, Federal Ministry of the Interior, 05–2004]. 11 Gesetz zur Bekämpfung des internationalen Terrorismus, 9-01- 2002, Bundesgesetzblatt 2002, Teil I, Nr. 3, Seite 361; Bundesministerium des Innern, Der 11 September 2001 und seine Folgen; Dokumentation aus dem Bundesministerium des Innern. März 2002 – Terrorismusbekämpfung: Zweites Anti-Terror-Packet [Law on the Fight against International Terrorism, 9 January 2002, Official Federal Journal 2002, Part 1, Nr 3, p. 36, Federal Ministry of the Interior: September 11 2001 and its consequences, Documents from the Federal Ministry of interior, March 2002 – Fight against Terrorism: Second Package of Anti-Terror Laws]. 12 Ibid., 17. 13 Interview with the BKA Strategy and Prospective Department’s Head, BKA Office, Berlin, 2017. 14 MAD (hrsg.), 2016, 60 Jahre militärischer Abschirmdienst 1956–2016, Köln [MAD (ed.), 2016, 60 years of the German Military Intelligence Service 1956–2016, Cologne].

Manufacturing Intelligence 129 15 Interview with the Head of the BLKA. We also interviewed the BLKA officials responsible for the office of investigation, the office for Organised Crime, the office for criminality, the office for Combatting Terrorism, the office for Information and Technology, the AKIS department, and the IGVP and ITC department. 16 Polizeiliche Kriminalstatisk für den Freistaat Bayern, BLKA, 2019; Gemeinsames Lagebild Justiz/polizei-Organisierte Kriminalität in Bayern 2019, BLKA, 2019 [Police Criminal Statistics for the Free State of Bavaria, BLKA 2019, General Picture: Justice/ Police-Organised Criminality in Bavaria 2019, BLKA, 2019]. 17 EASY allows functioning in different foreign languages; to import or export intercepted data at local, regional, national, and international levels; to map geographical addresses, to interlink the addresses associated to a criminal activity, to geocode the different locations and the places from which telephone calls have been made; to use a variety of criminal analysis software; to interrogate INPOL and IGVP-GWEB databases; to reconnect the information should another police force investigate the same case; to accede to a register of already-committed crime; to visualise the relevant information associated to an individual; to generate addresses, locations, contacts obtained from phone interceptions and to store them in a database; to use hypertext links opening on demand categories of information on an individual;to manage gradually clues and evidence and their process of gathering and continuous assessment; to accede to fingerprint and genetic databases. 18 AKIS: ‘Aufklärung Krimineller Islamitischer Strukturen’, i.e., Investigation of Criminal Extremist Islamic Structures. 19 For that purpose, AKIS: Collects information from IGVP-IGWEB and EASY through an extension called OKIS on categories of suspected persons classified according to their degree of dangerousness; Enhances that information through cross-checking and cross-referencing to release information awareness bulletins; Identifies terrorist network in an effort to anticipate investigations; Promotes interagency cooperation by soliciting federal police forces, intelligence services, competent ministries. AKIS intelligence product is directed to EUROPOL. 20 A 1000 square kilometre zone encompassing 1,7 million inhabitants. 21 FELIS: ‘Flexible Einsatzleit System Innere Sicherheit’, i.e., Versatile System for the Operational Management of Domestic Security. 22 With the exception of the data and information related to terrorist activity. 23 Kriminalistische Expertensysteme oder Experten für kriminalistisches Denken? p. 165–196 in Neue Freiheiten, neue Risiken, neue Chancen, BKA Arbeitstagung 1997, BKA Forschungsreihe-Band 48, BKA Wiesbaden 1998 [Criminal Expert systems or Experts for Criminal Thought? p. 165–196 in New Freedoms, New Risks, New Chances, BKA workshop 1997, BKA Research Publication 48, BKA, Wiesbaden1998]. 24 Most of the BLKA analysts are graduated in criminology with clearance renewed every two years. 25 Organised crime, terrorism, money laundering. 26 Unsurprisingly, we were disallowed access to the relevant documents released by the BND and BfV. 27 The 18 June 2018 press conference held by the Horst Seehofer, The Bavarian Interior Minister, in Munich, provides a good summary of these political considerations: https://www.euractiv.com. 28 Or ‘Drohende Gefahr’. 29 Bayern macht aus der Polizei eine Darf-fast-alles Behörde [Bavaria Turns its Police into a ‘do-it-for-almost-everything’], 03 July 2020. https://www.sueddeutsche.de/ bayern/ploizeiaufgabengesetz-heribert-pranti-kommentar-1.3977434.

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30 Jenny Gesley, 18 November 2016, Germany: Powers of federal Intelligence Services Expended, Library of Congress; Gesetz zur Ausland-Ausland Fermeldeaufklärung [Act on the Signals Intelligence Collection in Germany of Foreigners Abroad], 4 November 2016; Stellungnahme des Bundesrates, Entwurf eines Gesetzes zur Ausland-Ausland-Fernmeldeaufklä rung des Bundesnachrichtendienstes [Statement of the Federal Chamber, Bill on the Signals Intelligence Collection in Germany of Foreigners Abroad]. 31 Bundesgesetzblatt 2008, Teil 1, Nr. 66, ausgegeben am 31-12-2008, Seite 3083: Gesetz zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt vom 25-12-2008 [Official Federal Journal 2008, Part 1, Nr 66, published on 31 December 2008, p. 3083: Law on the Defense against the Danger of International Terrorism by the Federal Criminal Police, 25 December 2008]; Gesetz zur Neustrukturierung des BKA, 24 June 2017 [Law on the Restructuration of the BKA, 24 June 2017], amended in 2018 and modified in 2020. 32 Baden-Württemberg, Saxony-Anhalt, Rhineland-Palatinate, Hesse, MecklenburgWestern Pomerania, North-Rhine-Westphalia, Brandenburg, Niedersachsen, Sachsen. 33 Positionspapiere Deutschland, Stand 18-04-2019, Übersicht über die Änderungen der Polizeigesetze in der Einzelnen Bundesländern [German Position paper, 18 April 2019, Overview on the Modifications of the Police law in the Regions of the Federal Republic], https://amnesty.de. 34 Musterpoliziegesetz [Police Law Model], 3 July 2020, https://digitalcourage.de/ musterpolizeigesetz. 35 It reads: ‘creating a common, modern, unique information architecture gathering federal and regional police and intelligence to provide law enforcement structures with the relevant information’ and, allowing these agencies ‘to interlink their foreign partners digitally’. Bundesministerium des Innern, Polizei 2020-White Paper, 26 January 2018. 36 Ibid., 35; Gesetz zur Ausland-Ausland Fermeldeaufklärung [Act on the Signals Intelligence Collection in Germany of Foreigners Abroad], 4 November 2016. 37 Ibid., 70. 38 The GFF, ‘Gesellschaft für Freiheitsrechte’, i.e., Society for Civil Rights, is a Berlin-based not-for-profit-NGO founded in 2015. 39 Ausland-Ausland-Fernmeldeaufklärung nach dem BND-Gesetz verstößt in derzeitiger Form gegen Grundrechte des Grundgesetzes Pressemitteilung des Bundesverfassungsgerichts Nr. 37/2020 vom 19. Mai 2020 [The Act on Signals Intelligence Collection in Germany of Foreigners Abroad inscribed in the BND Law goes against the Fundamental Rights of the Basic Law in its Present Form, Press Release of the Federal Constitution Court Nr. 37/2020, 19 May 2020].

References Bigo, Didier. 2018. ‘Pour Une Sociologie des Guildes Transnationales’. Cultures et Conflits (109) (July): 9–38. Bigo, Didier, and Laurent Bonelli. 2019. ‘Digital Data and the Transnational Intelligence Space’. In Didier Bigo, Engin Isin, and Evelyn Ruppert, eds. Data Politics: Worlds, Subjects, Rights. London: Routledge. Bigo, Didier, Engin Isin, and Evelyn Ruppert. 2019. ‘Data Politics’. In Didier Bigo, Engin Isin, and Evelyn Ruppert, eds. Data Politics: Worlds, Subjects, Rights. London: Routledge. Busch, Heiner. 2003. ‘INPOL NEU Informatisierung des polizeilichen Alltags’. Bürgerrechte § Polizei/ CILIP 76 (3–2003).

Manufacturing Intelligence 131 Cordner, Gary W., and Kathryn Scarborough. 2010. Police Administration. 7th ed. London: Routledge. Madsen, Mikael Rask. 2016. ‘Transnational Fields and Power Elites: Reassembling the International with Bourdieu and Practice Theory’. In Tugba Basaran, Didier Bigo, Emmanuel-Pierre Guittet, and R. B. J. Walker, eds. International Political Sociology: Transversal Lines. London: Routledge. Manning, Peter K. 2008. The Technology of Policing: Crime, Information Technology and the Rationality of Crime Control. New York: NYU Press. Müller, Uwe. 2016. ‘Das ist der geheimste aller Geheimdienste’, Welt. www. investigativ.welt.de (accessed 26 May 2016).

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Transversal Practices of Everyday Intelligence Work in New Zealand: Transnationalism, Commercialism, Diplomacy Damien Rogers

Introduction 1 Viewed from the headquarters of the United States’ National Security Agency (NSA) in Fort Meade, Maryland, New Zealand’s position in the south-western reaches of the Pacific Ocean offers a useful location to intercept certain high-frequency radio transmissions and satellite-based telecommunications (Hager 1996; Ball et al. 2011) as well as to access several major fibreoptic cable networks (McCrow-Young 2017). The politicostrategic value of New Zealand’s geographic location to the United States was reflected in New Zealand’s inclusion as a full member of the expanded UKUSA Agreement in 1956 and remains evident in the agreed division of effort that made New Zealand responsible for collecting and analysing intelligence on the South Pacific and Southeast Asian regions. The inclusion of Australia, Canada, and New Zealand alongside the United Kingdom in the updated UKUSA Agreement meant that the United States could outsource some of its intelligence collection and analysis activities with these partners while maintaining a current understanding of threats to its national interests (Pfluke 2019). Despite the so-called ANZUS rift in the mid-1980s – where New Zealand’s nuclear-free policy meant US naval ships could not visit New Zealand ports and the United States closed its naval facilities to New Zealand ships – intelligence cooperation between the two countries did not altogether cease (Hensley 2013). The US invasion of Afghanistan in October 2001, which followed the terrorist attacks that occurred the previous month, was supported by New Zealand special forces and intelligence expertise (Hager 2011). Years later, US President Barack Obama went as far as to describe New Zealand as ‘an outstanding partner’ in the international counter-terrorism effort and insisted that ‘obviously, we are very pleased that the relationship between New Zealand and the United States is growing stronger by the day’ (as cited in Vaughn 2012: 20). Viewed from Pipitea House in Wellington, New Zealand, which is the headquarters of the Government Communications Security Bureau (GCSB) and the New Zealand Security Intelligence Service (NZSIS), the United States is a hegemonic power in possession of a highly sophisticated intelligence apparatus, DOI: 10.4324/9781003205463-9

Transnationalism, Commercialism, Diplomacy 133 the world’s most powerful military, and a large potential market for New Zealand’s agricultural exports. New Zealand’s intelligence relationship with the NSA, among others, is deemed highly valuable because it might open doors along the corridors of power within key US political institutions that would otherwise remain closed. The importance placed on New Zealand’s intelligence relationship with the United States represents more continuity than change as New Zealanders have looked towards America as a great-and-powerful friend since the Fall of Singapore in 1942 signalled the limits of Britain’s protective reach. While the everyday practices of intelligence work continued to evolve in the aftermath of the Cold War, the capabilities and focus of New Zealand intelligence professionals have, undoubtedly, been shaped by its much more powerful partner. Since 2001, New Zealand intelligence work has been largely, but not exclusively, justified publicly by the threat posed by international terrorism and, by extension, the need to support the US-led so-called ‘War on Terror’ (see for instance, NZSIS 2002; GCSB 2004). Up until New Zealand’s involvement in this War on Terror, official information on New Zealand intelligence work was very limited in large part because it was routinely concealed behind a veil of secrecy. However, since 2001 more information concerning New Zealand intelligence work has been made public. Intelligence professionals have published material on official websites and in unclassified accountability documents presented to New Zealand’s House of Representatives (see for instance, Kitteridge 2019; Hampton 2019; as well as NZSIS 2019; GCSB 2019). The Inspector-General of Intelligence and Security (IGIS) has released reports on the lawfulness and propriety of intelligence work (see for instance, Gwyn 2018; Gwyn 2019; Laracy 2020). Security bureaucrats employed at the Department of the Prime Minister and Cabinet (DPMC) have promulgated frameworks and handbooks (2011, 2016a, 2016b) and released some of the reports following reviews of New Zealand’s intelligence arrangements (Beatie and Dangerfield 2018; Bushnell and Wilson 2014; Kitteridge 2013; Murdoch 2009; Wintringham and Jones 2009). The judiciary is another source of public record on intelligence work, especially court hearings, judgements and other rulings (see for instance, Winkelmann 2013). Parliamentarians also deliver speeches, give interviews, make comments, including during parliamentary question time, and release media statements as well as make public reports following major reviews they have commissioned (Cullen and Reddy 2016), the most recent of which was the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019 (Young and Caine 2020). Edward Snowden’s revelations,2 based on the unauthorised disclosure of official information, have also been reported in the news media in New Zealand (Fisher 2015a, 2015b; Hager and Gallagher 2015) and abroad. Even though our understanding of intelligence work remains fragmented and provisional, these sources of information provided by those individuals and groups with vested interests in New Zealand intelligence work now render New Zealand an empirically rich site of investigation.

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Notwithstanding its significance to the so-called ‘Five-Eyes partnership’ and, by corollary, its global surveillance network, New Zealand intelligence work remains relatively underexplored within most contemporary studies of intelligence. Perhaps, this is because New Zealand is both a small state and a minor power in world affairs (Gee and Patman 2021), lacking the status and influence of great or middle powers, or because as a site it is geographically remote and, therefore, difficult for researchers from other continents to access. While the academic literature on New Zealand intelligence agencies appears quite modest when compared to the breadth and depth of studies dealing with western intelligence agencies that were published throughout the Cold War and during its immediate aftermath, (Herman 1997; Parker 1979; Price 1979; Richelson and Ball 1985; Weller 2001), the literature on New Zealand intelligence work has recently undergone a minor renaissance, with most exploiting access to the above-mentioned primary-source material. Scholarship after 11 September 2001 examines strategic relationships (Brunatti 2013; Buchanan 2018; Gee and Patman 2021; Rogers 2017a; Smith 2018; Whibley 2014), the controversies surrounding so-called intelligence failures (Palmer and Warren 2013; Rogers 2015), the impacts flowing from Snowden’s disclosures (Kuehn 2017; Kuehn 2016; Patman and Southgate 2016; Rogers 2017b), recent law reform (Ip 2021; Ip 2016; Patman and Southgate 2016; Redmond 2014; Rogers 2018) and counter-terrorism efforts (Battersby et al. 2020; CTAG 2020; Vandenberg and Hoverd 2020). Racial attitudes and religious prejudice held by intelligence professionals and security practitioners have been recently examined in the aftermath of the Christchurch massacre (Battersby 2020; Buckingham and Alali 2020; Greaves et al. 2020), as has media coverage of the attack and its consequences (Crothers and O’Brien 2020; Ellis and Muller 2020; Rahman 2020; Rupar 2020). Yet the scholarship concerned with New Zealand intelligence work remains under-theorised and offers what Michael J. Shapiro might call a pious rendition of official discourse (1988) (for exceptions, see Hoverd 2017, 2019). Much of the academic literature assumes a problem-solving approach that ‘takes the world as it finds it, with the prevailing social and power relationships and the institutions into which they are organised, as the given framework for action’ (Cox 1981: 128). As Cox explained further, ‘[t]he general aim of problem-solving is to make these relationships and institutions work smoothly by dealing effectively with particular sources of trouble. Since the general pattern of institutions and relationships is not called into question, particular problems can be considered in relation to the specialised areas of activities in which they arise’ (1984: 128–129). This means that much of the academic work is framed by the existing institutions including the GCSB and the NZSIS (Weller 2001; Brunatti 2013; Whibley 2014), uncritically accepts the notion of a coherent and unitary intelligence community (Battersby 2020; Battersby and Ball 2019), and perpetuates the fiction that intelligence work is undertaken for the purposes of national

Transnationalism, Commercialism, Diplomacy 135 security (Dynon 2019; Hoverd 2019; Gee and Patman 2021). This is troubling because the academic literature on New Zealand intelligence work tends to produce knowledge that encourages a highly circumscribed understanding of state-based intelligence practice, masking the connection between New Zealand intelligence agencies and the domestic and international use of armed force and other forms of political violence to maintain systems of political domination and economic exploitation. This obfuscation occurs even as some primary-source material testifies these violent acts (see for instance, Arnold and Palmer 2020; Gwyn 2019; Laracy 2020). Seeking to contribute to the new and transdisciplinary approaches to the study of intelligence inspired by international political sociology, I focus here on New Zealand intelligence professionals whose day-to-day routines revolve around gathering, analysing and disseminating intelligence. But they neither exist in a vacuum nor work in splendid isolation. Intelligence professionals are responsible to parliamentarians – or what Andrew W. Neal might describe as those involved in ‘professional politics’ (2019). The work undertaken by these intelligence professionals is now routinely monitored and assessed by IGIS. They also engage with security bureaucrats who are involved in setting the rules for, and framing the performance expectations of, intelligence work. Thinking about intelligence work as an everyday practice performed by a cadre of professionals provides the possibility for analysis to go beyond the abstract notion of the State in order to better understand the politics of all of those who seek to have their way over substantive intelligence matters. It provides the opportunity to examine the cooperation and consensus, as well as the struggles and contestations, occurring among those individuals and groups. This, in turn, reveals a different set of issues at stake in intelligence work. Notwithstanding what some professionals of politics, security bureaucrats and intelligence professionals proclaim, I argue that New Zealand’s intelligence work is no longer bound by its contribution to national security and, significantly, that it never was. Rather, intelligence work in New Zealand is driven, and has always been driven, by a desire for closer diplomatic relations with the US Government. I use this chapter to explore two types of transversal practice found in everyday intelligence work within New Zealand. By transversal practice, I mean any action, behaviour or conduct which cuts across recognised boundaries of well-established categories found in contemporary world affairs. Using the concept of transversal practice, I illuminate the transnational character of New Zealand’s intelligence work, which cuts across the boundaries of traditional state-to-state relations. I then use this concept to cast light on the recently formed partnerships between intelligence professionals and commercial enterprises operating within New Zealand’s economy, which cuts across the divide between the public sector and the market. This transversal perspective makes visible demarcations and practices which would otherwise have remained unnoticed in more conventional approaches.

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This chapter is structured into three main sections, followed by a brief conclusion. In the first section, I introduce New Zealand’s two intelligence and security agencies as the main organisations fostering a cadre of intelligence professionals within New Zealand before contextualising the value of their everyday work within a debate over the meaning of national security. In the second section, I consider the transnational dimension of this intelligence work, briefly highlighting routine interactions among New Zealand intelligence professionals and their foreign counterparts which tend to promote collegial amity. In the third section, I give focus to new commercial partnerships between intelligence professionals and private security companies, telecommunications providers and so-called firms of national significance, justified, for the most part, under the auspices of cybersecurity. I conclude by signalling implications for academics producing scholarship on New Zealand intelligence work, which ought to be of interest to those advancing an emerging research agenda of new transdisciplinary approaches to intelligence. This is not only because paying attention to transversal practices offers a way to challenge the received wisdom and test conventional thinking on the purposes and effects of New Zealand intelligence work but also because it prompts academics to reflect on their own positionality. As Basaran et al. point out, transversal lines ‘cut across conventional planes of scholarship, both theoretical and empirical’ (2017: 1). They explain further that: The notion of transversal lines … seeks to identify procedures for thinking about continuities and change in ways that do not ultimately rely upon claims about essentialist or transcendental causalities, or simplify everything into a form of ‘order.’ It demands instead that we think about process, change and flows through a continuous reflection on the assumptions enabling claims to knowledge, and provoke discussion with established traditions of political sociology, political theory, anthropology, geography, criminology and various strands of the humanities in order to enhance our understanding of the multiple facets and circulations of power and authority (ibid.: 1–2).

New Zealand’s Intelligence and Security Agencies The NZSIS and the GCSB, which specialise in human intelligence and signals intelligence, respectively, are the only New Zealand public service organisations specifically established to collect, produce and disseminate intelligence. Founded in 1956, the NZSIS operated under an Order-inCouncil until parliamentarians passed the (now-repealed) New Zealand Security Intelligence Service Act 1969 (Domestic and External Security Secretariat 2000). The GCSB was established in 1977. Like the NZSIS, the GCSB operated under an Order-in-Council until parliamentarians passed

Transnationalism, Commercialism, Diplomacy 137 the (also now-repealed) Government Communications Security Act 2003. Parliamentarians repealed both these Acts, which were replaced by, first, the Government Communications Security Bureau Amendment Act (2013) and, secondly, the Intelligence and Security Act (2017). Section 7 of the Intelligence and Security Act 2017 re-designated the NZSIS and the GCSB as New Zealand’s only intelligence and security agencies. These agencies now share common functions. Both agencies still collect, analyse and disseminate intelligence while providing protective security services, advice and assistance.3 A third function, concerning information assurance and cybersecurity activities, relates only to the GCSB. Both agencies have two new functions: cooperate with other public authorities to facilitate their functions, and cooperate with other entities to react to an imminent threat to life. The imminent threat-to-life provisions allow the agencies to use powers or share capabilities that ‘the agency is not, or could not be, authorised to exercise or share in the performance of its other functions’ (S.14(2)(d)) (see Rogers 2018; and for the development of these agencies and their powers, see also Gillespie and Breen 2021). The NZSIS and the GCSB are the main organisations fostering a cadre of intelligence professionals in New Zealand. This cadre has been shaped by organisational legacies. The NZSIS has its origins in the Special Branch of the New Zealand Police and the GCSB has roots dating back to the military in the late 1930s (Domestic and External Security Secretariat 2000). Previous leaders of the NZSIS and the GCSB not only reflect these organisational origins but also carry with them professional cultures and attitudes that may have prepared the way for closer working relationships between intelligence professionals and security practitioners.4 Intelligence professionals not only provided support to military operations deployed to conflict zones in Afghanistan and Iraq but are also allowed to share sophisticated surveillance technologies and expertise with the Police and the New Zealand Defence Force (NZDF), the only New Zealand agencies authorised to use lethal force. Here, then, New Zealand’s intelligence work involves much more than the provision of certain outputs and services; it now constitutes an essential part of the government’s constabulary and military efforts, as the sharing of sophisticated technologies and associated practices becomes a force enabler and multiplier for New Zealand’s domestic and international use of armed force. This is not to say, of course, that intelligence professionals and security practitioners do not contend over important matters, such as assessments of security challenges and the resources required to meet them. But rather, the evolving cadre of New Zealand intelligence professionals is shaped by their ongoing encounters with those security practitioners authorised to use deadly force in domestic or international settings. This cadre of intelligence professionals has grown considerably during the War on Terror, from about 335 staff members in 2000 (Domestic and External Security Secretariat 2000) to about 800 staff in 2019/2020 (GCSB 2020; NZSIS 2020). These intelligence professionals take their expertise with

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them when they accept positions in specialist units or groups within various government departments that collect, analyse and produce intelligence as an input for their new organisation’s internal use. Such organisations include the Department of Internal Affairs, Immigration New Zealand within the Ministry for Business, Employment and Innovation, New Zealand Customs Service, Ministry for Primary Industries, and the Department of Corrections, among others (DPMC 2016a, 2016b). Some of those departments employing intelligence professionals are responsible for administering and enforcing compliance with regimes that regulate the flow of goods and services, currency and people across New Zealand’s border, or that regulate the commercial extraction of natural resources with New Zealand’s Exclusive Economic Zone. The ‘security dimensions’ of these regulatory regimes are often emphasised by those who enforce them, presumably as a means of enhancing their status within the public service and to attract a greater share of the available resources during the War on Terror. While the type of work performed by New Zealand intelligence professionals is discernible, the reasons why they are commissioned to perform this work are somewhat opaque. According to its founding act of legislation, the purpose of the NZSIS was, first, to help keep New Zealand society secure, independent and democratic, and, second, to contribute to New Zealand’s efforts to maintain international security. According to its founding legislation, the GCSB’s primary objective was to contribute to New Zealand’s national security by, first, providing the New Zealand Government with the foreign intelligence it needed to protect and advance its own international relations, or New Zealand’s defence, security or international or economic well-being; second, providing foreign intelligence in order for the New Zealand Government to meet its international obligations and commitments; and third, providing advice, assistance and protection to state sector organisations and departments of State and other instruments of the Executive in order to protect and enhance the security of their communications, information systems, and computer systems or to protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons. New Zealand Prime Ministers have justified the existence of these agencies by foregrounding their contribution to national security, particularly in the context of the Cold War (Wharton 2012) and, more recently, the War on Terror (Rogers 2018). Annual Reports submitted to parliament in the long aftermath of the Cold War signal a broadening of organisational focus from traditional security challenges, such as international terrorism (see for instance, NZSIS 2002) and support to military operations (GCSB 2004), to non-traditional security challenges, such as ‘detecting people smuggling, combating organised crime, safeguarding national borders and protecting natural resources against illegal exploitation’ (NZSIS 2012: 5). Ever since 2001, there has been a sustained focus on domestic and international terrorism (NZSIS 2019; GCSB 2019). These Annual Reports also signal

Transnationalism, Commercialism, Diplomacy 139 intelligence professionals’ ‘contribution to New Zealand trade and economy’ (GCSB 2011: 2–3) as well as ‘[b]uilding a safer and more prosperous New Zealand’ (GCSB 2012: 22). In their review of the NZSIS and the GCSB, Sir Michael Cullen and Dame Patsy Reddy recommended repealing four acts of legislation and introducing a single act covering both agencies and, within that act, enshrining a definition of national security. The reviewers recommended that the term ‘national security’ mean protecting New Zealand’s status as a free and democratic society, its economy and international relations from an array of unlawful acts or foreign interference. Their definition also covered the protection of life, safety or quality of life of the New Zealand population, the integrity of New Zealand’s vital information or infrastructure, and international security from threats or potential threats as well as the protection of New Zealanders overseas from imminent threats. It extended, too, to protect foreign populations from ideologically, religiously, or politically motivated unlawful acts committed by a New Zealander (Cullen and Reddy 2016). While security bureaucrats at the DPMC were quick to agree that a single act of legislation for New Zealand’s intelligence and security agencies was preferable to the existing quartet, they opposed the inclusion of a definition of national security in law. These senior officials argued that the proposed definition ‘restricted to protecting as opposed to advancing New Zealand’s interest, including its economic and international security.’ They also claimed there existed: a lack of clarity around the scope of the definition (meaning it would not be clear what types of activities would be covered and what would not); and the number of thresholds and tests in the reviewers’ definition would be difficult to apply in practice and would give rise to uncertainty in particular circumstances about whether something fell within the definition; and concerns that an attempt to define national security would interact with other legislation and conceptions of national security across government. (DPMC 2016b, paragraph 58) Heeding this advice, parliamentarians broadened the intelligence and security agencies’ remit beyond national security when they passed Section 9 of the Intelligence and Security Act 2017, which states the principal objectives of the NZSIS and the GCSB are ‘to contribute to (a) the protection of New Zealand’s national security; (b) the international relations and well-being of New Zealand; and (c) the economic well-being of New Zealand.’ Without defining any of these key terms, the new Act nevertheless presents national security as something distinct from New Zealand’s international relations and well-being, and from New Zealand’s economic well-being, including its trading relations and commercial exploitation of natural resources. In so

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doing, it dissolves the hitherto strong connection between intelligencegathering activities and the pursuit of national security. This reframing of objectives by parliamentarians is more than what Huysmans (2014) might describe as the unbounding of security as it radically expands the operating environment for the NZSIS and the GCSB, which is now limited only by the elasticity of these vaguely worded objectives. Moreover, securitisation becomes unnecessary as intelligence work is no longer justified by situations of emergency and states of exception needed to respond to existential threats to the political community. For the parliamentarians and security bureaucrats that dominate this field, the work of intelligence professionals has been normalised and is now part of everyday labour (for a similar point but in a different context, see Neal 2019). Security bureaucrats within the DPMC opposed a definition of national security enshrined in law, preferring instead to maintain their own definition of national security in policy, which Cabinet approved. Making its first public appearance in 2011, but now found in various public documents (see for instance, DPMC 2016a, 2016b), that definition is, as follows: National security is the condition which permits the citizens of a state to go about their daily business confidently free from fear and able to make the most of opportunities to advance their way of life. It encompasses the preparedness, protection and preservation of people, and of property and information, both tangible and intangible. (DPMC 2011: 3) The objects to be protected here are citizens as well as people, property and information; the sought-after ends, however, concern the preservation of a certain way of life. What is not explicitly stated, but what is implicitly understood by intelligence professionals, is that the capability to perform intelligence work, including support to its foreign partners, also requires protection as the essential means of maintaining this permissive condition in the face of multitudinous threats. Omitted here, too, is an acknowledgement of any negative consequences flowing from this ‘way of life,’ which include increasing levels of inequality within New Zealand society and harms to the environment. These senior officials have also adopted an ‘all-hazards’ approach to identifying security risks, which means ‘that all risks to national security, whether internal or external, human or natural, are included within the ambit of the national security system’ (DPMC 2011: 5). The full spectrum of risks identified here includes natural disasters, such as severe weather, floods, earthquakes, volcanic eruptions, and tsunamis, as well as man-made acts of political violence ranging from international armed conflict to cyberattacks on data and infrastructure. Since the risks posed to the condition of national security come from almost anywhere, intelligence professionals cannot limit their attention to a longstanding fear of some foreign menace

Transnationalism, Commercialism, Diplomacy 141 appearing suddenly over the horizon. They must now instead take aim at New Zealand’s population if they are to protect their fellow citizens and their shared way of life. This broadening of the focus of intelligence work to meet the expansive understanding of national security serves obvious bureaucratic interests. There are, of course, no appreciable limits when it comes to the sources of harm that can potentially threaten a condition permitting citizens to conduct their daily affairs without fear. Security bureaucrats within DPMC have now established themselves as primus inter pares over intelligence professionals, not least because they are responsible for coordinating the whole-ofgovernment responses to a dizzyingly broad array of national security issues. That their expansive understanding of national security seems at odds with their earlier advice opposing a proposed legal definition – which, in their words, lacked ‘clarity around the scope of the definition (meaning it would not be clear what types of activities would be covered and what would not)’ (DPMC 2016b: 12) – is striking, but seldom mentioned. It is significant that several former diplomats have taken up important positions within the DPMC, which nowadays plays an important role in coordinating and leading New Zealand’s intelligence work. Since its establishment in 1990, three of the six chief executives have been former diplomats.5 None of these former diplomats have any experience as an intelligence professional or any expertise as a security practitioner. It is significant, too, that the professional backgrounds of those chosen to lead the intelligence and security agencies have shifted away from defence towards diplomacy. The appointment of Richard Woods as Director of Security in 1999 ended the succession of NZSIS leaders with military backgrounds. Prior to his appointment with the NZSIS Woods had worked as a diplomat, serving in Paris, Moscow, Athens, and Tehran. Simon Murdoch, a former secretary of foreign affairs and trade, was twice appointed Acting Director of the GCSB between 2010 and 2011. Ian Fletcher, appointed as GCSB Director in early 2012, had been a New Zealand diplomat and Rebecca Kitteridge, the current Director of Security, also spend working within New Zealand’s Ministry for Foreign Affairs and Trade. This does not suggest, of course, that some deep-state conspiracy involves former diplomats holding New Zealand’s intelligence and security agencies hostage, but rather, questions the extent to which their professional experiences as New Zealand diplomats may have shaped a common view of the world that uncritically accepts the leadership exercised by the US Government, as the face of the world’s most powerful state. This is important because the desire for closer diplomatic relations with the United States fosters a professional culture that informs everyday common sense, or what Pierre Bourdieu might have described as habitus – a set of principles and disposition that guide behaviour and inform an understanding of how the rules of the game are played (Merand and Forget 2013). New Zealand’s intelligence contribution to the US-led War on

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Terror – which involved the unlawful use of armed force in international affairs, state-sanctioned assassinations, extraordinary rendition, and torture (Bigo and Tsoukala 2008; Guild et al. 2018; Sanders 2018) – has helped shape the prevailing attitudes at home towards Islamic radicalisation, which tended to minimise the danger associated with far-right nationalism (Battersby 2020). Furthermore, the circulation of these racial attitudes and religious prejudices likely encouraged some New Zealand intelligence professionals to ignore warnings from the local Islamic community, understanding them merely as sources of information on potential suspects, and not as human beings who, fearful of their own safety, are worthy of protection for their own sake (Young and Caine 2020). The attack on two mosques in Christchurch on 15 March 2019 by Brenton Tarrant, an Australian with extreme right views, tragically demonstrated the high cost of this myopic security gaze. Having introduced the two main organisations that train and sustain New Zealand’s intelligence professionals, and contextualised the value of their everyday work within the ongoing debate over the meaning of national security, I now use the concept of transversal practice and turn my attention to the often-neglected transnational dimension of New Zealand intelligence work, which foregrounds the importance of foreign agencies to the development and performance of New Zealand’s intelligence capabilities.

Transnationalism While organisational legacies continue to shape the intelligence profession within New Zealand, these organisations are, perhaps, more importantly, byproducts of New Zealand’s international relations (Parker 1979; Ball et al. 2011). The UKUSA Agreement remains the cornerstone of the Five-Eyes partnership. The Agreement was not publicly acknowledged by the GCSB until recently, even though the NSA and the UK’s Government Communication Headquarters (GCHQ) had occasionally referred to it in public. The UKUSA Agreement, and the Five-Eyes partnerships it enables, is considered by parliamentarians, security bureaucrats and intelligence professionals to be one of New Zealand’s essential security assets. The value of this partnership is now routinely expressed by reference to New Zealand’s ongoing access to large volumes of foreign intelligence produced by its partners. Cullen and Reddy, two consultants commissioned by parliamentarians, explain that New Zealand ‘gains considerably more from its international partnerships than we provide in return. For every intelligence report NZSIS provides to a foreign partner, it receives 170 international reports. Similarly, for every report GCSB makes available to its partners, it received access to 99 in return’ (2016: 45). The value of the Five-Eyes partnership can also be expressed by referring to the sophisticated surveillance technologies to which New Zealand obtains access. Such technologies require significant research-and-development investment, leading security bureaucrats to declare that an autonomous, independent intelligence capability would be

Transnationalism, Commercialism, Diplomacy 143 prohibitively expensive for New Zealand. Two consultants commissioned by senior officials at the DPMC concluded that ‘[c]reating a wholly self-reliant [New Zealand intelligence community] would be prohibitively expensive. New Zealand, though its partnerships, can today draw on much greater and more valuable support, skill, technology and intelligence than would otherwise be available to it’ (Bushnell and Wilson 2014: 5). Such enthusiasm largely ignores a working-level reality where intelligence collected and analysed in light of US national interests can only ever be of marginal use to New Zealand policymakers. Regardless of the volume of this partner-provided foreign intelligence, New Zealand does not yet have in place the processes needed to evaluate the value of that material to its key stakeholders (Bushnell and Wilson 2014; Whibley 2014). The secrecy surrounding the intelligence agencies’ organisational models partially shields those agencies from pressures to articulate a value proposition to the New Zealand public who ultimately fund them and under whose name they operate (Rogers 2015). Didier Bigo has demonstrated how the procedures that ensure the secrecy of intelligence ‘is not the strict opposite of exchange of information, but the result of the collaboration of bureaucracies allowing the restriction to a certain ‘circle’ of people with authority to maintain the others in ignorance…’ (2019: 379). In other words, shared secrecy creates conditions for widespread ignorance on intelligence matters, meaning New Zealand’s transnational intelligence partnerships are poorly understood by the New Zealand public. In these circumstances, it is difficult to ascertain if the case for New Zealand’s ongoing commitment to the Five-Eyes partnership rests on advocacy that exaggerates benefits while minimising costs. Bigo has also examined the rise of what he describes as ‘transnational guilds’ that ‘perform activities, construct their professional identities across borders, and have, after many encounters and trainings, almost similar disposition despite their difference basic socialisations’ (2016: 411). Bigo’s observations are germane to New Zealand intelligence work, as Edward Snowden’s revelations show by casting light on the nature and extent of the GCSB’s transnational intelligence partnerships. According to Snowden, the GCSB regularly sends staff to its Australian counterpart for periods up to three years. The two agencies work closely in areas of mutual interest, including the Solomon Islands and Fiji (as cited in Hager and Gallagher 2015). NSA provides GCSB with ‘raw traffic, processing and reporting on targets of mutual interest, in addition to technical advice and equipment loan’ and will ‘continue to encourage GSCB’s efforts towards technical interoperability’ (as cited in Hager and Gallagher 2015). GCSB is, it seems, involved with other intelligence-sharing arrangements, one of which is called SIGINT Seniors Pacific (SSPAC) and includes each of the Five Eyes partners as well as France, India, South Korea, Singapore, and Thailand. Another is called SIGINT Seniors Europe (SSEUR) and includes each member of the Five-Eyes partnership as well as Belgium, Denmark, France, Germany, Italy, Netherlands, Norway, Spain and Sweden (as cited in Hager and

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Gallagher 2015; see also Larsson, this volume). As Bigo and Bonelli (2019) point out, the countries represented in these agreements often include former colonial and neo-colonial powers of the Global North, who still believe they have important roles to play in contemporary world affairs and create transnational spaces built on the remains of alliances forged during the Second World War. Perhaps more telling, however, are the reasons behind the GCSB’s targeting of Bangladeshi communications infrastructure providers as part of its counter-terrorist efforts focused on the Bangladesh Rapid Action Battalion (RAB). According to a classified 2009 GCSB Report, ‘RAB has been an active target group for the GCSB in the past and this information could well be of high interest for future operations if the domestic security situation in Bangladesh were to deteriorate’ (as cited in Hager and Gallagher 2015). It is difficult to discern a meaningful connection between the RAB, which is tasked with combating serious crime and terrorism, and threats to New Zealand’s national security. An NSA Information Paper explains that the ‘GCSB has been the lead for the Intelligence Community on the Bangladesh counter-terrorism (CT) target since 2004,’ before elaborating that GCSB’s Bangladesh CT reporting provided unique intelligence leads that have enabled successful CT operations by Bangladesh State Intelligence Service, CIA, and India over the past year. GCSB reporting on CT targets in Bangladesh was one of the key SIGINT sources [text redacted] reporting to the U.S. Intelligence Community. (cited in Hager and Gallagher 2015) The GCSB has, therefore, targeted individuals within Bangladesh not because the RAB poses a risk to New Zealand’s national security, but because such targeting helps the GCSB provide foreign intelligence to meet New Zealand’s international obligations and commitments. Yet, at the time when the GCSB’s targeting of RAB was made public in 2015, Acting GCSB Director, Una Jargose, assured the New Zealand public through her statement to the parliamentary Intelligence and Security Committee that the GCSB only ever conducted intelligence-gathering operations that contributed to New Zealand’s national security. Characterising these intelligence operations as a response to a threat to New Zealand’s national security requires a fairly elastic concept of national security, especially when the intelligence collected does not appear to have been passed to New Zealand’s security practitioners for action. If this targeting of Bangladeshi infrastructure and individuals indirectly contributes to New Zealand’s national security by providing ‘foreign intelligence to meet international obligations and commitments of the Government of New Zealand,’ then Jagose left that unsaid (Rogers 2017b). This is an obvious example of the GCSB’s operational activities being used as a diplomatic instrument to curry favour with the United States. These routine interactions are evidence of the

Transnationalism, Commercialism, Diplomacy 145 transversal practices of New Zealand intelligence professionals and their foreign counterparts that cut across state-to-state boundaries to promote collegial amity with those partners ahead of New Zealand’s national security interests, thereby revealing the transnational character of New Zealand’s intelligence work. Another more high-profile example of the transversal practices of New Zealand intelligence work being undertaken as a means of strengthening the bonds of that collegial amity is found in the Dotcom affair. Mr Kim Dotcom, a German-Finnish Internet entrepreneur and founder of the Mega-upload file-sharing website, was the subject of a search warrant on 20 January 2012 when his home in Coatesville, just north of Auckland, was searched by the New Zealand police. Extraordinary resources were used to execute this warrant, including the deployment of two helicopters and 76 armed law enforcement officers, some of who were members of the elite counter-terrorist Special Tactics Group. Dotcom was arrested later that day and his not inconsiderable assets were seized under the terms of a Mutual Legal Assistance Treaty between the United States and New Zealand. As I have written elsewhere, it seems unlikely that intelligence professionals decided to support the New Zealand police’s extradition of Dotcom because he constituted an imminent threat to New Zealand’s national security. Rather, more likely GCSB staff provided intelligence support because they appreciated the value of assisting the US Government when it seeks to use its power as a means of advancing the financial interests of Hollywood executives anywhere in the world, particularly when the New Zealand Government was busy promoting New Zealand as a filming site for Hollywood blockbusters (Rogers 2015).

Commercialism Just as the concept of transversal practices highlights the everyday work of intelligence professionals that cut across state-to-state boundaries, it also illuminates partnerships between New Zealand intelligence professionals and various commercial enterprises that cut across the divide separating the public sector from the market, including the telecommunication industry which was deregulated in the late 1980s as part of radical economic restructuring and neoliberal reform now referred to as ‘Rogernomics’.6 Intelligence professionals were empowered under now-repealed legislation to cooperate with organisations beyond the public sector, though none had the power to compel non-public entities to cooperate with them.7 Neither the NZSIS nor the GCSB has fully disclosed the extent of its earlier work with the private sector, possibly because those relationships were akin to running an agent, rather than managed under a formal cooperation agreement between agencies and commercial enterprises. Even though it remains difficult to determine the extent to which New Zealand’s intelligence professionals engage with commercial operators, there are now at least four ways in which such public–private partnerships can lawfully occur.

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First, intelligence professionals can purchase specific services from commercial security providers and specialist consultants. This includes not only guards protecting buildings and other sensitive areas (Dynon 2019) but also consultants with surveillance, investigation, and analysis expertise. Sometimes contractors are former intelligence professionals or have professional experience in security work more generally. Thompson and Clark Investigation (NZ), Ltd., is an example of a private investigation and corporate intelligence company which, established by former police officers, contracts private investigators and analysts with professional experience within New Zealand’s intelligence and security agencies. This public–private partnership model resembles the kinds of arrangements managed by the US Department for Homeland Security and the Federal Bureau of Investigation; it is burgeoning business in the United States as Petersen and Tjalve (2018) estimate there are approximately 150 such arrangements in place. As an enquiry into Thompson and Clark, and other businesses like it, recently found, important legal and ethical considerations arise when government agencies form commercial relationships with private companies (Martin and Mount 2018). Of special concern here was the inability of some intelligence professionals to maintain appropriate standards of impartiality and objectivity in their dealings with private security consultants and, where intelligence professionals undertook secondary employment as private security consultants, obvious conflicts of interest appeared relating to their privileged access to private information. Second, Part 5 of the Intelligence and Security Act 2017 empowers intelligence professionals to access personal information held by some commercial enterprises and private businesses. They can access customer and subscriber details, bank account numbers, credit card numbers, IP addresses, call association data, device-related information, and mobile data usage held by telecommunications network operators, as well as statement, account and transaction information held by financial service providers. These duties are enforceable too: business operators have 30 days to comply or else they commit an offence punishable by a term of imprisonment no longer than one year or a fine not exceeding $40,000. This means that intelligence professionals can now access private information even though this was not the purpose for which that information was collected and remains stored. Thirdly, in accordance with the Telecommunications (Interception Capability and Security) Act (TISCA) 2013, telecommunications providers have become collaborators in intelligence work. Under Part 2 of TISCA, network operators must ensure that surveillance agencies (a term that includes both intelligence and security agencies as well as law enforcement agencies) can access any public communications network that the operator owns, controls, or operates and every telecommunication service that operator provides in New Zealand. TISCA compels those network operators to cooperate with the GCSB in situations where risks to network security exist and provide for breach notices to be issued if minor breaches are detected, and for enforcement notices if serious breaches are detected. The

Transnationalism, Commercialism, Diplomacy 147 latter can attract Court-imposed penalties up to NZ$500,000 as well as additional penalties of NZ$50,000 for each day a contravention continues. Empowered by this Act, the GCSB can shape the communication and information environment of every person in New Zealand, rendering that environment amenable to its intrusion, monitoring and surveillance. Fourth, New Zealand intelligence professionals can now engage with certain commercial enterprises, which are deemed firms of national significance, as objects of protection under project CORTEX. Established as a cybersecurity program shielding certain organisations from advanced and persistent cyberattacks usually launched by foreign states or state-like groups, CORTEX protects New Zealand’s ‘… key economic generators, niche exporters [and] research institutions…’ (GCSB 2015: 2). The monitoring of these organisations’ communications and transfer of electronic information is mostly performed by sensors, and other technical devices, provided by the GCSB and deployed on those organisations’ own systems before any serious malicious cyber activity is detected and reported to GCSB analysts for examination and, if required, investigation. However, the CORTEX program establishes a regime designed, equipped, supported and overseen by the GCSB that undertakes ongoing, widespread and systemic monitoring of New Zealanders’ electronic information transfers and communication when those New Zealanders communicate with an undisclosed number of undisclosed organisations. Most New Zealanders remain unaware of this surveillance as the onus of responsibility to inform them of this monitoring falls on the protected organisations. When New Zealanders are informed that they are being monitored digitally, they are only told that ‘their communications could be accessed for cybersecurity reasons [but are] not told specifically that it [is for the government-run CORTEX program]’ (Patterson 2016). Any information gathered through these information assistance and cybersecurity activities can be used for the ulterior purposes of intelligence collection and analysis if certain conditions are met. Understood in this light, firms of national significance protected by the CORTEX program are not merely beneficiaries of the GCSB’s information assurance and cybersecurity activities, but also operate as its communication-monitoring agents, further extending the GCSB’s surveillance capability. The concept of transversal practices shows that partnerships between intelligence professionals and commercial operators extend the reach of intelligence work to cover much of New Zealand’s population by cutting across the divide between the public sector and the market, encroaching on economic life. This is not to claim that New Zealand’s intelligence professionals conduct mass surveillance on their own citizens, but rather, to acknowledge that contemporary intelligence work involves the widespread and systemic monitoring of New Zealanders’ private communications under the auspices of cybersecurity. This is, of course, in line with the NSA’s changing surveillance practices, an awareness of which prompted Snowden to reveal the US Government’s collection of its own citizens’ communications and electronic information.

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Conclusion In this chapter, I used the concept of transversal practice to illuminate the transnational character of New Zealand’s intelligence work, highlighting routine interactions among New Zealand intelligence professionals and their foreign counterparts. I also used this concept to cast light on the recently formed partnerships between intelligence professionals and commercial enterprises operating within New Zealand’s economy. Challenging received wisdom on the purposes and effects of New Zealand intelligence work vis-àvis the ongoing search for national security, I argued that these everyday practices, which cut across established categories found in contemporary world affairs, demonstrated a desire for closer diplomatic relations with the US Government, shared by many intelligence professionals, security bureaucrats and parliamentarians, that drives New Zealand intelligence work. That is, I contend, the seldom-remarked upon politics informing New Zealand intelligence work. The transnational and commercial dimensions of their everyday work empower intelligence professionals in their contestations with parliamentarians and security bureaucrats. But what does all of this mean for academics, particularly as the Royal Commission of Inquiry into the Christchurch Mosque Attacks on 15 March 2019 recommended the government establish a fund for academics with an interest in counter-terrorism research? Although intelligence professionals and security bureaucrats are set to become increasingly important stakeholders in New Zealand universities, their engagement with academics poses certain risks that might not be fully recognised by those in universities who believe they are playing a constructive role as good citizens in New Zealand’s search for security (see for instance, Hoverd 2017; Hoverd 2019). These academics—or what C. Wright Mills would describe as ‘new academic entrepreneurs’ (1959: 98)—might feel as though their professional standing and public status is enhanced by their proximity to bureaucratic power or by obtaining new funding for their research. More than boosting academics’ self-esteem, this proximity to bureaucratic power might also be seen by some students as a pathway towards a fast-tracked career with the intelligence profession (Rogers 2017a). The current situation, in which academics researching New Zealand intelligence work uncritically accept the notion of an intelligence community and tend to reproduce the fiction that intelligence work is undertaken for the purposes of New Zealand’s national security, will likely become entrenched if academic research becomes dependent on intelligence professionals providing funds and access to otherwise closed archives. When academics are contracted by intelligence professionals or security bureaucrats to conduct research on specific topics, research that critically examines intelligence work, particularly where any complicity between those professionals and the security challenges they face receives attention, will be unwelcome and seen by some as akin to airing dirty laundry. The quality of research might suffer too, especially when it only offers a

Transnationalism, Commercialism, Diplomacy 149 pious rendition of official views (Rogers 2017a). The intellectual independence sustaining academic freedom (which the Education and Training Act 2020 defines as the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions) will be further eroded. When intelligence work transgresses the bounds of academic freedom to compromise an academic’s intellectual independence, the well-being of democracy is at stake because intelligence work is generally endorsed at the expense of serious critique. Without the independent production of knowledge on intelligence work, dissent from official policy is more easily silenced. That is why non-conventional approaches which eschew problemsolving paradigms, especially those inspired by international political sociology, help to better understand the politics of intelligence work in New Zealand and elsewhere, including the ongoing risk that academic research is yet another area in which intelligence professionals look set to transverse and, eventually, instrumentalise for their own purposes. Acts of Legislation • • •

•

•

• •

Intelligence and Security Act 2017, https://www.legislation.govt.nz/act/ public/2017/0010/latest/DLM6920823.html Education and Training Act 2020, https://www.legislation.govt.nz/act/ public/2020/0038/latest/LMS170676.html Telecommunications (Interception Capability and Security) Act 2013, https://www.legislation.govt.nz/act/public/2013/0091/latest/DLM5177923. html Government Communications Security Act 2003 (repealed 28 September 2017), https://www.legislation.govt.nz/act/public/2003/0009/ latest/DLM187178.html New Zealand Security Intelligence Service Act 1969 (repealed 28 September 2017), https://www.legislation.govt.nz/act/public/1969/0024/ latest/DLM391606.html United Kingdom and United States of America Agreement 1956, https://www.nsa.gov/news-features/declassified-documents/ukusa/ Government Communications Security Bureau Amendment Act 2013, https://www.legislation.govt.nz/act/public/2013/0057/latest/DLM5177706.html

Notes 1 I acknowledge here the constructive feedback I received from colleagues at the EWIS 2020 Workshop on Intelligence in Contemporary Times: Towards a Transversal Research Agenda, and, in particular, Didier Bigo for his suggestions on how to frame questions concerning New Zealand’s intelligence work. I also thank Sebastian and Hager for their challenging questions and insightful comments on the draft version of this chapter.

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2 See also the Introduction chapter in this volume. 3 Under now-repealed law, the NZSIS’s functions were to collect, analyse, assess, and communicate security intelligence, conduct vetting inquiries into individuals requiring security clearances, and provide advice and recommendations on various security matters including protective measures. The GCSB’s functions were to gather foreign intelligence, decipher, decode and translate foreign communications, examine and analyse foreign communications and foreign intelligence, and provide foreign intelligence reports as well as to provide advice and assistance to protect the official information produced, sent, received, or held by the New Zealand Government. 4 The first four men to lead the NZSIS – Sir William Gilbert (1956–1976), Judge Paul Molineaux CMG (1976–1983), Lindsey Smith CMG CBE (1983–1991), and Don McIver CMG OBE (1991–199) – had each served in the New Zealand Army, as had Dr Warren Tucker, who was NZSIS Director between 2006 and 2014). The first four men to lead the GCSB – Colin Hanson (1977–1988), Ray Parker (1988–1999), Dr Warren Tucker (1999–2006), and Sir Bruce Ferguson KNZM, OBE, AFC (2007–2010) – each had military backgrounds prior to taking up the post of GCSB Director, as had Sir Jerry Mateparae who served briefly in that role between February and June 2011 before becoming Governor-General of New Zealand. 5 Simon Murdoch (1991–1998), Maarten Wevers (2004–2012), and Dr Brook Barrington (2019–current). The current Deputy Chief Executive National Security, Tony Lynch, is another former diplomat. 6 This term refers to Sir Roger Douglas, the Finance Minister who advocated for such policy during the fourth Labour Government (1984–1990). See Easton (1989) and Kelsey (1999). 7 Under S.4D(2) of the New Zealand Security Intelligence Service Act 1969, the Service could ‘request any person or organisation to give specified assistance to an authorised person for the purpose of giving effect to a warrant.’ Under S.8 of the Government Communications Security Bureau Act 2003, the Bureau could cooperate with public authorities or other entities in New Zealand to gather foreign intelligence or to provide advice and assistance to protect official information.

References Arnold, T., and Palmer, G. 2020. Report of the Government Inquiry into Operation Burnham and related matters. https://operationburnham.inquiry.govt.nz/inquiry‐report/ Ball, D., Lord, C., and Thatcher, M. 2011. Invaluable Service: The Secret History of New Zealand’s Signals Intelligence During Two World Wars. Waimauku: Resource Books. Basaran, T., Bigo, D., Guittet, E. P., and Walker, R. B. J., eds. 2017. International Political Sociology: Transversal Lines. London and New York: Routledge. Battersby, J. 2020. ‘Security Sector Practitioner Perceptions of the Terror Threat Environment before the Christchurch Attacks’. Kotuitui: New Zealand Journal of Social Sciences Online 15 (2): 295. Battersby, J., and Ball, R. 2019. ‘Christchurch in the Context of New Zealand Terrorism and Right Wing Extremism’. Journal of Policing, Intelligence and Counter Terrorism 14 (3): 191. Battersby, J., Ball, R., and Nelson, N. 2020. ‘New Zealand’s Counter-Terrorism Strategy: A Critical Assessment’. National Security Journal 2 (1), 10.36878/nsj202 00201.05.

Transnationalism, Commercialism, Diplomacy 151 Beatie, S., and Dangerfield, G. 2018. Follow-up Review for the New Zealand Intelligence Community. https://www.nzic.govt.nz/assets/assets/SSC43‐PIF‐NZIC‐31jul.pdf Bigo, D. 2016. ‘Sociology of Transnational Guilds’. International Political Sociology 10: 398. Bigo, D. 2019. ‘Shared Secrecy in a Digital Age and a Transnational World’. Intelligence and National Security 34 (3): 379. Bigo, D., and Bonelli, L. 2019. ‘Digital Data and the Transnational Intelligence Space’. In D. Bigo, Engin Isin, and Evelyn Ruppert, eds. Data Politics: Worlds, Subjects, Rights. London and New York: Routledge. Bigo, D., and Tsoukala, A. 2008. Terror, Insecurity and Liberty: Illiberal Practices of Liberal Regimes after 9/11. London and New York: Routledge. Brunatti, A. D. 2013. The Architecture of Community: Intelligence Community Management in Australia, Canada and New Zealand. Public Policy and Administration 28: 119. Buchanan, P. G. 2018. ‘Foreign Policy Realignment, Issue Linkage and Institutional Lag: The Case of the New Zealand Intelligence Community’. In R. Patman, I. Iati, and B. Kiglics, eds. New Zealand and the World: Past, Present and Future. Singapore: World Scientific Publishing, p. 373. Buckingham, L., and Alali, N. 2020. ‘Extreme Parallels: A Corpus-Driven Analysis of ISIS and Far-Right Discourse’. Kotuitui: New Zealand Journal of Social Sciences Online 15 (2): 310. Bushnell, P., and Wilson, G. 2014. Review of the Agencies in the Core New Zealand Intelligence Community. https://www.publicservice.govt.nz/assets/Legacy/resources/PIF‐ Review‐NZIC‐Jul14.pdf C.A.S.E. Collective. 2006. ‘Critical Approaches to Security in Europe: A Networked Manifesto’. Security Dialogue 37 (4): 443. Combined Threat Assessment Group. 2020. ‘Assessing Terrorism Threats to New Zealand: The Role of the Combined Threat Assessment Group’. National Security Journal 2 (2), 10.36878/nsj20200202.08 Cox, R. W. 1981. ‘Social Forces, States and World Orders: Beyond International Relations Theory’. Millennium: Journal of International Studies 10 (2): 126. Crothers, C., and O’Brien, T. 2020. ‘The Contexts of the Christchurch Terror Attacks: Social Science Perspectives’. Kotuitui: New Zealand Journal of Social Sciences Online 15 (2): 247. Cullen, M., and Reddy, P. 2016. Intelligence and Security in a Free Society: Report of the First Independent Review of Intelligence and Security in New Zealand. https://www. parliament.nz/resource/en‐NZ/51DBHOH_PAP68536_1/64eeb7436d6fd817fb382a200 5988c74dabd21fe Department of the Prime Minister and Cabinet (DPMC). 2011. New Zealand’s National Security System. Department of the Prime Minister and Cabinet (DPMC). 2016a. National Security System Handbook. https://dpmc.govt.nz/sites/default/files/2017‐03/dpmc‐nss‐hand book‐aug‐2016.pdf Department of the Prime Minister and Cabinet (DPMC). 2016b. Paper Four: Institutional Reform of the Agencies, Appointment of Judicial Commissioners and General Administrative Matters. Available at: https://dpmc.govt.nz/sites/default/files/ 2017-03/CABINET-PAPER-4-Govt-response-to-the-IRIS-Institutional-reform-ofthe-agencies-appointment-of-judicial-commissioners-and-general-admin.pdf

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Domestic and External Security Secretariat. 2000. Securing Our Nation’s Safety: How New Zealand Manages Its Security and Intelligence Agencies. Wellington: Department of the Prime Minister and Cabinet. Dynon, N. 2019. ‘Securing Public Places: New Zealand’s Private Security Sector as a National Security Enabler’. National Security Journal 1 (1): 75. Easton, B., ed. 1989 The Making of Rogernomics. Auckland: Auckland University Press. Ellis, G., and Muller, D. 2020. ‘The Proximity Filter: The Effect of Distance on Media Coverage of the Christchurch Mosque Attacks’. Kotuitui: New Zealand Journal of Social Sciences Online 15 (2): 332–348. 10.1080/1177083X.2019.1705358 Fisher, D. 2015a. Leaked papers reveal NZ plan to spy on China for US. New Zealand Herald. https://www.nzherald.co.nz/nz/leaked‐papers‐reveal‐nz‐plan‐to‐ spy‐on‐china‐for‐us/K73SRPBMU2M4W4Z4T7XATFSVKI/ Fisher, D. 2015b. ‘Snowden revelations/PM John Key tight-lipped on why spying claims are ‘wrong’’. New Zealand Herald. https://www.nzherald.co.nz/nz/ snowden‐revelations‐pm‐john‐key‐tight‐lipped‐on‐why‐spying‐claims‐are‐wrong/ QL3PHUKIBHCRJSNWIGSTUCNEAA/ Gee, A., and Patman, R. 2021. ‘Small State or Minor Power? New Zealand’s Five Eyes Membership, Intelligence Reforms, and Wellington’s Response to China’s Growing Pacific Role’. Intelligence and National Security 36 (1): 34. Government Communications Security Bureau (GCSB). 2004. Annual Report for the Year Ended 30 June 2004. https://www.gcsb.govt.nz/assets/GCSB‐Annual‐Reports/ GCSB‐Annual‐Report‐2004.pdf Government Communications Security Bureau (GCSB). 2011. Annual Report for the Year Ended 30 June 2011. https://www.gcsb.govt.nz/assets/GCSB‐Annual‐Reports/ GCSB‐Annual‐Report‐2011.pdf Government Communications Security Bureau (GCSB). 2012. Annual Report for the Year Ended 30 June 2012. https://www.gcsb.govt.nz/assets/GCSB‐Annual‐Reports/ GCSB‐Annual‐Report‐2012.pdf Government Communications Security Bureau (GCSB). 2015. CORTEX Frequently Asked Questions. https://www.gcsb.govt.nz/assets/GCSB‐Annual‐Reports/GCSB‐ Annual‐Report‐2015.pdf Government Communications Security Bureau (GCSB). 2019. Annual Report for the Year Ended 30 June 2019. https://www.gcsb.govt.nz/assets/GCSB‐Annual‐Reports/ GCSB‐Annual‐Report‐2019.pdf Government Communications Security Bureau (GCSB). 2020. Annual Report for the Year Ended 30 June 2020. https://www.gcsb.govt.nz/assets/GCSB‐Annual‐Reports/ 2020‐GCSB‐Annual‐Report.pdf Gillespie, A., and Breen, C. 2021. ‘The Security Intelligence Agencies in New Zealand: Evolution, Challenges and Progress’. Intelligence and National Security 36 (5): 676–695. 10.1080/02684527.2021.1901409 Greaves, L., Rasheed, A., D’Souza, S., Shackleton, N., Oldfield, L., Sibley, C., et al. 2020. ‘Comparative Study of Attitudes to Religious Groups in New Zealand Reveals Muslim-Specific Prejudice’. Kotuitui: New Zealand Journal of Social Sciences Online 15 (2): 260. Guild, E., Bigo, D., and Gibney, M. eds. 2018. Extraordinary Rendition: Addressing the Challenges of Accountability. London and New York: Routledge.

Transnationalism, Commercialism, Diplomacy 153 Gwyn, C. 2018. Complaints Arising from Reports of Government Communications Security Bureau Intelligence Activity in Relation to the South Pacific, 2009–2015. Wellington: Office of the Inspector-General of Intelligence and Security. Gwyn, C. 2019. Inquiry into Possible New Zealand and Security Agencies’ Engagement with the CIA Detention and Interrogation Programme 2001–2009. Wellington: Office of Inspector-General of Intelligence and Security. Hager, N. 1996. Secret Power: New Zealand’s Role in the International Spy Network. Nelson: Craig Potton. Hager, N. 2011. Other People’s Wars: New Zealand in Afghanistan, Iraq and the War on Terror. Nelson: Craig Potton. Hager, N., and Gallagher, R. 2015. ‘Secret Documents Shine Light on GCSB Spying in Bangladesh’. New Zealand Herald. https://www.nzherald.co.nz/nz/ secret‐documents‐shine‐light‐on‐gcsb‐spying‐in‐bangladesh/3AHURW53ZITA TWLLRVJIZHA5CI/ Hampton, A. 2019, 20 February. Opening Statement to the Intelligence and Security Committee. https://www.gcsb.govt.nz/news/opening‐statement‐to‐the‐intelligence‐ and‐secuirty‐committee/ Hensley, G. 2013. Friendly Fie: Nuclear Politics and the Collapse of ANZUS, 1984–1987. Auckland: Auckland University Press. Herman, M. 1997. ‘Antipodean Dilemmas’. Intelligence and National Security 12 (4): 215. Hoverd, W. 2017. Differentiating between New Zealand’s two security studies research agendas. In W. Hoverd, N. Nelson, and C. Bradley, eds. New Zealand National Security: Challenges, Trends and Issues. Auckland: Massey University Press. p. 289. Hoverd, W. 2019. ‘The Changing New Zealand National Security Environment: New Threats, New Structures, and New Research’. National Security Journal 1 (1): 17. Huysmans, J. 2014. Security Unbound: Enacting Democratic Limits. London and New York: Routledge. Ip, J. 2016. ‘The Making of New Zealand’s Foreign Fighter Legislation: Timely Response or Undue Haste?’ Public Law Review 27 (3): 181. Ip, J. 2021. ‘Law’s response to New Zealand’s ‘darkest of days’’. Common Law World Review 50 (1): 21–37. 10.1177/1473779521989340 Kelsey, J. 1999. Reclaiming the Future: New Zealand and the Global Economy. Wellington: Bridget Williams Books. Kitteridge, R. 2019. Opening Statement to the Intelligence and Security Committee. https://www.nzsis.govt.nz/news/speech‐opening‐statement‐to‐the‐intelligence‐and‐security‐committee/ Kitteridge, R. 2013. Review of Compliance at the Government Communications Security Bureau. https://www.gcsb.govt.nz/assets/GCSB‐Compliance‐Review/ Review‐of‐ Compliance.pdf Kuehn, K. M. 2016. The Post-Snowden Era: Mass Surveillance and Privacy in New Zealand. Wellington: Bridget Williams Books. Kuehn, K. M. 2017. ‘Framing Mass Surveillance: Analysing New Zealand’s Media Coverage of the Early Snowden files’. Journalism 19: 402. Laracy, M. 2020. Report of Inquiry into the Role of the GCSB and the NZSIS in Relation to Certain Specific Events in Afghanistan. Wellington: Office of the Inspector-General of Intelligence and Security.

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McCrow-Young, A. 2017. ‘Visibility, Power and Citizenship intervention: The Five Eyes and New Zealand’s Southern Cross Cable’. Westminster Papers in Communication and Culture 12 (3): 37. Martin, D., and Mount, S. 2018. Inquiry into the Use of External Security Consultants by Government Agencies. https://www.publicservice.govt.nz/assets/Legacy/resources/ Report‐of‐the‐inquiry‐into‐the‐use‐of‐external‐security‐consultants‐by‐government‐agencies.pdf Merand, F., and Forget, A. 2013. ‘Strategy’. In R. Adler-Nissen, ed. Bourdieu in International Relations: Rethinking key concepts in IR. New York: Routledge, p. 93. Mills. C. W. 1959. The Sociological Imagination. Oxford: Oxford University Press. Murdoch, S. 2009. Report to the State Services Commissioner: Intelligence Agencies Review. https://www.publicservice.govt.nz/assets/Legacy/resources/intelligence‐ agencies‐review.pdf Neal, A. W. 2019. Security as Politics: Beyond the State of Exception. Edinburgh: Edinburgh University Press. New Zealand Security Intelligence Service (NZSIS). 2002. Annual Report for the Year Ended 30 June 2002. https://www.nzsis.govt.nz/assets/media/nzsis‐ar02.pdf New Zealand Security Intelligence Service (NZSIS). 2010. Annual Report for the Year Ended 30 June 2010. https://www.nzsis.govt.nz/assets/media/nzsis‐ar10.pdf New Zealand Security Intelligence Service (NZSIS). 2012. Annual Report for the Year Ended 30 June 2012. https://www.nzsis.govt.nz/assets/media/nzsis‐ar12.pdf New Zealand Security Intelligence Service (NZSIS). 2019. Annual Report for the Year Ended 30 June 2019. https://www.nzsis.govt.nz/assets/media/NZSIS‐Annual‐ Report‐2019.pdf New Zealand Security Intelligence Service (NZSIS). 2020. Annual Report for the Year Ended 30 June 2020. https://www.nzsis.govt.nz/assets/media/2020‐NZSIS‐Annual‐ Report.pdf Palmer, D., and Warren, I. J. 2013. ‘Global Policing and the Case of Kim Dotcom’. IJCJ&SD 2 (3): 105. Patman, R. G., and Southgate, L. 2016. ‘National Security and Surveillance: The Public Impact of the GCSB Amendment Bill and the Snowden Revelations in New Zealand’. Intelligence and National Security 31: 871. Parker, M. 1979. The SIS. Palmerston North: Dunmore Press. Patterson, J. 2016. GCSB Links to NSA Unsurprising—New Spy Boss. Radio New Zealand. https://www.rnz.co.nz/news/political/304613/gcsb‐links‐to‐nsa‐unsurprising‐ new‐spy‐boss Petersen, K. L., and Tjalve, V. S. 2018. ‘Intelligence Expertise in the Age of Information Sharing: Public–Private “Collection” and Its Challenges to Democratic Control and Accountability.’ Intelligence and National Security 33 (1): 21–35. Pfluke, C. 2019. ‘A History of the Five Eyes Alliance: Possibility for Reform and Additions’. Comparative Strategy 38(4): 302. Price, H. 1979. ‘Discussion: Another View of the New Zealand Security Intelligence Service’. Political Science 31: 65. Rahman, K. 2020. ‘News Media and the Muslim Identity after the Christchurch Mosque Massacres’. Kotuitui: New Zealand Journal of Social Sciences Online 15 (2): 360. Redmond, V. 2014. ‘I Spy with My Not So Little Eye: A Comparison of Surveillance Law in the United States and New Zealand’. Fordham Int’l LJ 37: 733.

Transnationalism, Commercialism, Diplomacy 155 Richelson, J. T., and Ball, D. 1985. The Ties That Bind: Intelligence Cooperation between the UKUSA Countries — the United Kingdom, the United States of America, Canada, Australia and New Zealand. Sydney: Allen & Unwin. Rogers, D. 2015. ‘Extraditing Kim Dotcom: A Case for Reforming New Zealand’s Intelligence Community?’ Kōtuitui: New Zealand Journal of Social Sciences Online 10: 46. Rogers, D. 2017a. ‘New Zealand Security Intellectuals: Critics or Courtesans?’. In W. Hoverd, N. Nelson, and C. Bradley, eds. New Zealand National Security: Challenges, Trends and Issues. Auckland: Massey University Press, p. 308. Rogers, D. 2017b. Snowden and GCSB: Illuminating Neoliberal Governmentality? In A. Colarik, J. Jang-Jaccard, and A. Mathrani, eds. Cyber Security and Policy: A Substantive Dialogue. Auckland: Massey University Press, p. 217. Rogers, D. 2018. ‘Intelligence and Security Act 2017: A Preliminary Critique’. New Zealand Law Review 2017 (4): 657. Rupar, V. 2020. ‘Journalists as First Responders’. Kotuitui: New Zealand Journal of Social Sciences Online 15 (2): 349. Sanders, R. 2018. Plausible Legality: Legal Culture and Political Imperative in the Global War on Terror. Oxford: Oxford University Press. Shapiro, M. J. 1988. The Politics of Representation: Writing Practices in Biography, Photography and Political Analysis. Madison, WI: University of Wisconsin Press. Smith, A. L. 2018. ‘Informing the National Interest: The Role of Intelligence in New Zealand’s Independent Foreign Policy’. In R. Patman, I. Iati, and B. Kiglics, eds.New Zealand and the World: Past, Present and Future. Singapore: World Scientific Publishing, p. 343. Vandenberg, H., and Hoverd, W. 2020. ‘The Inconsistent Usage of the Terms “Extremism” and “Terrorism” Around the Christchurch Mosque attacks’. National Security Journal 2 (1), 10.36878/nsj20200201.03 Vaughn, B. R. 2012. The United States and New Zealand: Perspectives on a Pacific Partnership. https://www.fulbright.org.nz/wp‐content/uploads/2012/08/axford2012_ vaughn.pdf Weller, G. R. 2001. ‘Change and Development in the New Zealand Security and Intelligence Services’. The Journal of Conflict Studies 21 (1): 1. Wharton, M. 2012. The Development of Security Intelligence in New Zealand, 19451957. MA thesis. New Zealand, Massey University. Whibley, J. 2014. ‘One Community, Many Agencies: Administrative Developments in New Zealand’s Intelligence Services’. Intelligence and National Security 29: 122. Winkelmann, H. 2013. Judgment of Justice Helen Winkelmann: Dotcom V AttorneyGeneral of New Zealand, return of evidence (accessed 3 March 2014). Wintringham, M., and Jones, J. 2009. A National Security and Intelligence Framework for New Zealand. Young, C., and Caine, J. 2020. Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019. https:// christchurchattack.royalcommission.nz/the‐report/

8

The Techno-Legal Boundaries of Intelligence: NSA and FRA’s Collaborations in Transatlantic Mass Surveillance Sebastian Larsson

Introduction Although certain surveillance and intelligence methods – specifically, the secret collection of communication signals via technical rather than human means – were ‘traditionally used by military and foreign intelligence services to prevent military actions endangering national security’, recent revelations have shown how many intelligence agencies have in fact collected personal data as well as Internet and telephone traffic between individuals at a far larger scale and on a routine basis (European Union Agency for Fundamental Rights 2017a: 15). Their activities have been justified by claims that threats to society are no longer simply ‘national’ in nature but associated with terrorist groups and criminal networks. This has, in turn, reconfigured the role of conventional security and intelligence actors in such a way that they now increasingly operate pre-emptively and target individual citizens, both at home and abroad. Viewed from another angle, it can be said that the ‘performances of intelligence actors are … dependent and based on data belonging to individuals’ (Bigo and Bonelli 2019: 106). This chapter is broadly interested in this transforming, expanding, and increasingly intrusive role of intelligence actors, including the implications of their practices and their ability and authority to intercept personal data and make it into new kinds of ‘intelligence tools’ (ibid.). More specifically, this chapter is interested in US intelligence actors and their cooperation with foreign partners. As shown by whistleblower Edward Snowden in 2013, at the forefront of the transformation and expansion of intelligence services’ capabilities have been the United States’ National Security Agency (NSA) and their partners in the so-called ‘Five Eyes network’ (see also Rogers and the introduction chapter, this volume).1 Among other things, Snowden’s leaked documents showed that intelligence actors’ digital mass surveillance conducted in the name of counter-terrorism had become a fundamentally transnational activity and that some of NSA’s key partners came also from regions far beyond the Five Eyes countries. In fact, the Eyes were never limited to Five, but the intelligence alliance has since the mid-1900s involved a number of ‘third-party’ countries such as France, DOI: 10.4324/9781003205463-10

Techno-Legal Boundaries of Intelligence 157 Germany, and Spain, among whom secret information has been routinely shared. Indeed, in contrast to common assumptions in Intelligence Studies (IS) scholarship that intelligence collection and circulation is a primarily national matter organised around national security interests and protected by secrecy laws, information exchange across borders has always been a key dimension of intelligence work, both historically and presently (Bigo 2019: 382). And in the current era of transboundary online communication, these data exchanges have only increased. A number of additional partners have now joined or intensified their participation in this Five Eyes ‘Plus’ network, usually because they, as Bigo and Bonelli (2019: 102) put it, ‘have come to play a major role in the geopolitics of Internet cables’. Sweden, it turns out, is one of those countries. Sweden, or more specifically the Swedish government’s signals intelligence agency FRA, possesses a technologically advanced infrastructure for conducting digital surveillance and bulk data collection. As I will discuss later in the chapter, a law adopted in the early 2000s formalised the agency’s already ongoing activities of wiretapping telephone calls, Internet messages, emails, and other forms of digital communications that cross the Swedish border in fibreoptic cables (Eriksson and Lagerkvist 2016: 85). In addition, the Snowden files showed that FRA had been extensively involved not only in sharing various data with the NSA but also in conducting offensive hacking operations in the European digital environment on behalf of their US partner. Therefore, the aim of this chapter is, first, to outline the legal and practical configuration of the signals intelligence practice in Sweden and describe which kinds of operations FRA have been tasked to do, and which kind of data they have been able to collect in recent years. Second, the chapter will discuss FRA’s transatlantic collaborations with the NSA and provide an indication as to how and why the Swedish intelligence agency has become such an influential actor in US-initiated mass surveillance and hacking operations. In sum, the chapter asks, how do Sweden conduct signals intelligence collection, what characterises the relationship between NSA and FRA in the field of transatlantic intelligence cooperation, and how does this partnership problematise our understanding of a Five Eyes alliance? Analytically, this chapter is inspired by the sociology of Pierre Bourdieu and draws empirically, on the one hand, on the existing signals intelligence legislation in Sweden as well as previous legal research concerning the limits of this framework. On the other, it draws on the Snowden files themselves,2 focusing specifically on the set of NSA documents that were disseminated to and covered by Swedish public broadcasting media in the fall of 2013. The chapter does not attempt to provide an exhaustive account of the problem at hand but rather represents more of a preliminary mapping of certain positions and position-takings by some of the key actors in the field of transnational intelligence. As I will discuss more, however, in analyses of contemporary state-led intelligence and surveillance, the study object tends

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to be concealed and rather difficult to access, and ‘official discourse’ will hence say little about the actual practices. It is therefore justified, even necessary, as a first step to turn to ‘unofficial’ material, such as ‘unauthorised’ disclosures and journalistic findings, in order to open up lines of enquiry and prepare for further empirical research. This corresponds well with a Bourdieusian approach, which refuses to take received wisdoms and universal claims, including state authority, for granted, and instead seeks to reconstruct analytical objects based on what can be observed about the actors and practices involved. Swedish intelligence practices are only partially covered in previous research. Gunilla Eriksson has conducted important research on the constitution of Swedish military intelligence. Much in line with the analytical aims of this collective volume, in fact, she probes into the everyday socioprofessional settings of the Swedish Military Intelligence and Security Service (MUST) and investigates how certain explicit and implicit assumptions, paradigms, norms, hierarchies, and routines shape and condition the production of a ‘specific intelligence knowledge’ that may or may not correspond with reality (Eriksson 2016: 2; 2018). Her study is however limited to the MUST organisation – which is essentially a branch of the Swedish Armed Forces – and does not include an analysis of intelligence production and circulation in the more ‘outward-looking’ signals intelligence agency FRA. This gap is partially addressed by legal scholar Mark Klamberg, who has published several crucial in-depth and comparative accounts of the Swedish signals intelligence law (2009, 2010, 2012). This chapter draws heavily from Klamberg’s work but nonetheless complements it, since it was conducted in the pre-Snowden era and is thus unable to capture some of the key connections between NSA and FRA as well as the evidence on the latter’s involvement in US-initiated hacking operations. In conventional IS scholarship and leading IS journals, research on Sweden and Scandinavia has been awkwardly quiet about these countries’ involvement in transnational signals intelligence cooperation and mass surveillance. Even recent works developed in the post-9/11 period continue to focus predominantly on historical cases of Swedish intelligence during the Cold War (see for instance Lillbacka 2010; 2015; Tunander 2013; Wulff 2013; Jacobs 2020). The little work that exists in IS that deploys more of an alternative or ‘critical’ view, such as Geoffrey Weller’s article on political scrutiny and control of Scandinavia’s intelligence services, is now markedly dated (Weller 2000). The chapter proceeds in three sections. The first outlines the legal framework of the signals intelligence practice in Sweden, focusing particularly on how FRA have been able to conduct extensive data collection through their so-called ‘auxiliary operations’. Here, I show how the FRA carefully treaded, even exceeded, legal boundaries at the time by wiretapping traffic data in bulk and routinely sharing it with the NSA several years before the controversial ‘FRA law’ was drafted. The second section extends the discussion on

Techno-Legal Boundaries of Intelligence 159 Sweden’s role in transatlantic signals intelligence by drawing on new evidence in the Snowden files concerning the FRA and NSA relationship, including NSA’s sharing of certain digital surveillance tools and FRA’s sharing of data from their cable collection on ‘Russian targets’. Here, I also show that FRA not only participated in but even partially facilitated and took the lead in some of NSA’s digital spying and hacking activities in projects such as ‘Quantum’ and ‘Winterlight’ – operations even the British intelligence services were hesitant to partake in. This contributes to previous research that similarly problematises the United States and United Kingdom’s so-called ‘special relationship’; for example, whereas Ben Jaffel’s work on Anglo-European intelligence relations contends that ‘Britain is closer to Europe than the literature may otherwise indicate’ (Ben Jaffel 2020: 3), this chapter shows that the United States and Sweden are far closer and more interdependent than previous research indicates. Third and finally, before concluding the chapter, I develop the argument that Sweden’s in-depth involvement in transatlantic intelligence cooperation in fact has little to do with high-political dynamics, the secret agendas of mysterious alliances like the Five Eyes, or even conventional ideas about ‘secrecy’. Rather, FRA’s close proximity to the NSA in an emerging transnational guild of intelligence has far more to do with the Swedish agency’s specific professional ‘craft’ and their ability to strategically wield a technological know-how pertaining to covert data collection and computer hacking.

The Signals Intelligence Practice in Sweden and Its Transnational Dimensions Exchanges of sensitive information between Sweden and intelligence services abroad is an old affair. In 1954, the Swedish government and its agency tasked to conduct signals and communications intelligence for national security purposes – namely, the National Defence Radio Establishment (Försvarets Radioanstalt, FRA) – unofficially joined the Five Eyes partnership as one of the so-called ‘third parties’ of the UKUSA agreement (Rensfeldt 2013). It is widely held that FRA was inducted as a Five Eyes partner because, despite the Swedish government’s outward policy stance of ‘neutrality’ (or ‘peacetime non-alignment’), FRA’s intelligence collection during the Cold War focused to a large extent on the Soviet Union and the other members of the Warsaw Pact (ibid.). They had also, a year earlier, started implementing for its time technologically advanced automated and computerised methods into their decryption practices, which were of interest to foreign services (Wallin 2018: 15, 18). Beyond this, fairly little is known about FRA’s operations during the mid to late 1900s, particularly when it comes to their collaborations with foreign intelligence services. It was not until the Snowden revelations in 2013 that more information started to emerge about Sweden’s role in transatlantic intelligence cooperation, and particularly FRA’s intensified intelligence

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gathering and sharing activities in the early 2000s. Among the documents released by Edward Snowden that became covered by the Swedish public broadcasting media, one of them states that in 2004, after 50 years in effect, the part of the UKUSA agreement that regulated Sweden’s involvement had been replaced by two bilateral agreements between the Swedish government and the United States’ NSA and the United Kingdom’s Government Communications Headquarters (GCHQ), respectively. These agreements at once deepened and intensified the already existing partnerships between these agencies, and formalised ongoing collaborations and exchanges of both SIGINT/COMINT (signals/communications intelligence) and so-called ELINT (covert intelligence gathered by electronic means). Crucially, the agreements also enabled the NSA to collaborate directly with FRA when wiretapping cables running through European territory, without requiring GCHQ’s ‘pre-coordination’ which had previously been the case (National Security Agency 2013a; Rensfeldt 2013). I will return to discussing these bilateral relations, including their implications, in the next section. First, however, it is necessary to establish how the intelligence practice in Sweden was configured at the time. To what extent were intelligence gathering, processing, and sharing activities recognised and regulated at the beginning of the 2000s? Notably, the US–Swedish and UK–Swedish bilateral agreements from 2004 were signed several years before the practice became regulated in Swedish law. In 2008, the Swedish government presented the ‘FRA law’ to parliament (formally, the Law on Signals Reconnaissance in Defence Intelligence Operations; henceforth, the ‘signals intelligence law’) (Government of Sweden 2008). This law – including the legal text as well as the preparatory work and the two preceding government bills from the year before (Government of Sweden 2007b; 2007a) – was deemed controversial, and became surrounded by intense debate not only because it would come to formalise and even expand the FRA’s mandate to conduct signals intelligence gathering both domestically and abroad, but also since it, at least to some, represented somewhat of a rude awakening concerning the far-reaching intelligence practices that the Swedish state had apparently been involved in for many years. In June 2008, the signals intelligence law was passed by parliament, formalising the FRA’s ability to monitor and collect signals intelligence not only over the airways but also in every fibreoptic cable running through and inside the country. Hence, FRA had now acquired legal (in addition to practical) capacity to intercept digital communications crossing Swedish borders, including any information on foreign citizens and governments. As noted by legal scholar Mark Klamberg, this latter aspect was enabled by two key moves by the lawmakers. First, it was achieved through a crucial reformulation and expansion of the objective of signals intelligence: from previously targeting ‘external military threats’ to now targeting ‘external threats’, broadly defined (Klamberg 2009: 522; see also European Union Agency for Fundamental Rights 2017a: 23). Second, it was enabled by a new

Techno-Legal Boundaries of Intelligence 161 legal obligation pertaining to the role of private Internet and telecommunications companies. According to the law, all Swedish communication service providers (CSPs) were now required to transfer all traffic and content moving through Swedish cables to so-called ‘interaction points’. At these digital interaction points, cable communication signals could then be collected by FRA analysts. As Internet traffic and telecommunication signals in the cables follow automated routes, they may therefore include Swedish senders or receivers as well as foreign digital communication that simply passes through Swedish territory, thereby making it impossible to distinguish beforehand whether the signals are domestic or international in nature.3 They are simply ‘data’, and all of it must be transferred – without prior sorting or categorisation, without user knowledge or consent – by the CSPs to the interaction points and made available for collection by the FRA (Klamberg 2010: 118). The Swedish signals intelligence law – much like the one in France, yet unlike the one in e.g., New Zealand (see Rogers, this volume) – does not make a reference to ‘national security’ when justifying or stating the central purpose behind this kind of expansive domestic and international signals intelligence collection. This is viewed as too narrow of a category. Rather, the law outlines various ‘threats’ and open-ended ‘scenarios’ relating to ‘defence operations’, which effectively serve as FRA’s ‘catalogue of objectives’: Sweden … does not use the term ‘national security’, but rather lists a series of circumstances permitting it to gather signals intelligence, some of which the law individually identifies as threats to the security of national interests: external military threats, international peacekeeping and humanitarian initiatives, international terrorism or other serious transnational crime, proliferation of weapons of mass destruction, serious external threats to the infrastructure of society, conflicts abroad, foreign intelligence activities against Swedish interests, or a foreign power’s actions or intentions of vital importance to Swedish foreign security or defence policy. (European Union Agency for Fundamental Rights 2017a: 26 [empahsis added]; Government of Sweden 2008) In order for the FRA to actually pick up and sort through the data transferred to interaction points, the agency first needs to make a formal request on behalf of the government office and/or Swedish Armed Forces with reference to any of the above threats or scenarios relating to ‘defence operations’ (Klamberg 2010: 117). This request is submitted to the Swedish Defence Intelligence Court (Försvarsunderrättelsedomstolen,4 FUD), who must issue an approval before collection and filtering of data can commence. Here, however, a crucial clarification needs to be made regarding the practical definitions of different kinds of ‘operations’ as well as different kinds of ‘data’ in the Swedish signals intelligence apparatus. Here, the work

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of Mark Klamberg has been key for clarifying the legal nuances that in various ways regulate as well as open up Swedish wiretapping activities. FRA in fact conducts two forms of operations that respectively aim at collecting and searching through two forms of data from the digital interaction points. On the one hand, FRA conducts signals intelligence gathering for defence operations, as mentioned above. This form of signals intelligence gathering is rather strictly regulated, requires court permission, and must be conducted with reference to FRA’s ‘catalogue’ of threats. This form of intelligence gathering mainly concerns the narrow collection of content data. Content data pertains directly to external military or terrorist threats and make up only ‘a small fraction’ of all digital communications in the cables and is therefore ‘examined closely’ (Klamberg 2010: 117). On the other hand, in a lesser-known branch of its organisation, FRA conducts intelligence gathering in the name of so-called ‘auxiliary operations’. These operations require no court permission, and moreover, do not need to be justified with reference to the ‘catalogue’ of military, terrorist, criminal, or other forms of ‘external’ threats. Rather, the signals intelligence law permits ‘auxiliary’ data collection for much wider purposes: ‘1) monitoring changes in the signal environment, the technical development and signal protection, and 2) continuously develop the technique and methodology which is needed in order to carry out operations according to the law’ (ibid.: 120 [emphasis added]). Auxiliary operations mainly concern the collection of not content data, but traffic data. This kind of data makes up ‘a significant part’ of all digital communications, is collected broadly in bulk, yet is ‘examined in a more shallow way’ (ibid.: 117). Why are these auxiliary operations conducted, beyond the purposes of ‘monitoring changes’ in the digital environment and ‘developing techniques’ for data collection? The law also states that auxiliary operations are in place ‘to chart communication paths that may be of interest when collecting information relevant to the defence intelligence operations’ (ibid.: 118). In other words, auxiliary collection of traffic data is not only a vaguely defined activity but also serves as a form of enabler and preparatory action for the more targeted collection of content data with reference to specific threats. Again, in the words of Klamberg, FRA’s auxiliary operations … could be likened with a map or a telephone book that FRA uses to establish communication patterns, identify people’s social networks, and to find the kind of information that the agency would like to examine more closely. (Klamberg 2009: 524–525 [my translation]) Put differently, auxiliary data collection from the CSP-fed interaction points concerns not what is being communicated online, but how and between whom. FRA does not initially target individual messages, but rather, as a

Techno-Legal Boundaries of Intelligence 163 first step, target the relations between individuals in the form of their traffic and interactions online and over the phone. In doing so, they construct a chart of socio-digital connections, patterns, and networks, before collecting specific content data only as a second step. Again, this kind of comprehensive ‘auxiliary’ activity requires no court permission from the FUD but can be conducted at any time. Traffic data – as evident in the name – is data on the move, and in order to catch it, FRA must operate broadly. Consequently, they have been given a similarly broad mandate to not only collect traffic data in bulk but also to process and examine as well as store such information in their database named ‘Titan’. The auxiliary operations unit at FRA does not need to establish beforehand that the collected traffic data running through Swedish cables are connected to specific threats to Swedish national security, nor does it need to take into consideration whether the acquired telephone or IP addresses belong to Swedish or foreign citizens (ibid.: 528–529). Rather, again, its main concern is to paint the ‘large picture’ by analysing all communication patterns and digital connections in Sweden and beyond. Here, bulk collection and processing of traffic data become the method with which to identify ‘suspicious’ online behaviours and communication patterns, to distinguish in the large amounts of traffic signals who is connected with who, and to indicate why. Or as phrased in the preparatory documents of the signals intelligence law, the processing of traffic data would ‘seek to bring order to the apparent chaos in the collected material’ (cited in Klamberg 2009: 530 [my translation]). In summation, it seems that Swedish signals intelligence follows a peculiar two-step process by which FRA’s auxiliary operations serve as an indispensable sorting tool which prepares and enables the government to then order targeted monitoring of individuals in the name of defence operations. Or put differently, before court regulated forms of ‘listening in’ on particular individuals can commence in the form of content data collection, a largely unregulated and pre-emptive practice of ‘monitoring everyone all the time’ takes place in the form of comprehensive traffic data collection. To cite Klamberg again, there also seems to be … a vessel of communication between the [defence and auxiliary operations’] units, where information originally collected for one purpose, e.g., to monitor changes in the signal environment, may be used for a different purpose … I view it as a coherent system rather than two parallel and isolated processes. (ibid. 2009: 536 [my translation]) Previous research on the legal framework around the Swedish signals intelligence practice illustrates how law, in the words of Pierre Bourdieu, is fundamentally about the capacity of public spokespersons to formalise their symbolic violence, to give ‘an action or a discourse the form which is

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recognized as suitable, legitimate, approved’ (Bourdieu 1990: 85), even in cases, such as here, when the action in question had been ongoing for years and the law retroactively legitimated it. Klamberg, in particular, also manages to show how small definitional nuances and variations in legal writings can potentially regulate, open up, and sanction a sensitive activity in different ways. However, analyses of the legal framework may struggle to show how something has actually been done in practice, especially if activities have been taking place ex juris and covertly, or with limited democratic oversight.5 This becomes particularly clear if we return to the question of the FRA’s transatlantic connections. With FRA’s so-called ‘auxiliary operations’ in mind, and especially their broad mandate to not only collect but also process and store traffic data, we may want to ask to what extent FRA has also shared such data with foreign governments and intelligence services such as the NSA. Here, previous research can only note that at least according to law, FRA is indeed permitted to, via its auxiliary operations branch, ‘establish and maintain cooperation in signals reconnaissance with other countries and international organisations’ (ibid.). Klamberg rightly points out that international exchanges of traffic data for e.g. counter-terrorism purposes would be ‘remarkable’, given the fact that it would ‘involve large amounts of communications between law-abiding citizens’ (ibid.: 536). These worries prove founded as we will see in the next section, where I will draw in more detail on the Snowden files released to Swedish public media to show that not only were transnational data exchanges between Sweden and foreign partners emerging in the 2000s and 2010s as a seemingly routine practice but also that FRA participated in offensive hacking operations on behalf of the NSA during the same years.

FRA and NSA’s Cooperation Read Through the Snowden Files In 2011, three years after the Swedish signals intelligence law was passed, the FRA was given permission to cooperate and share data with the Security Services (Säkerhetspolisen, SÄPO), thereby cementing and further formalising their role as an intelligence service dealing not merely with military issues, but broadly with all kinds of ‘external threats’, including notions of transboundary terrorism and organised crime. Since then, FRA has supported SÄPO’s counter-terrorism work by ‘reporting on developments in international terrorism in general and potential connections to Sweden in particular’. This has included reporting continuously on ‘factors affecting the emergence and development of terrorism in certain parts of the world’ as well as Swedish connections to terrorist ‘recruitment, travelling patterns, and financing’ (National Defence Radio Establishment 2021 [my translations]). FRA have in addition cooperated with SÄPO and MUST in producing Sweden’s annual ‘terrorist threat level’ reports published by the National Centre for Terrorist Threat Assessment (NCT) (Swedish Security Services 2021).

Techno-Legal Boundaries of Intelligence 165 SÄPO was not the only actor FRA collaborated and shared signals intelligence with at the time, however, as evidence was about to emerge that they had also been rather extensively involved in NSA’s transnational mass surveillance practices for some time. In June 2013, the first media reports on whistleblower Edward Snowden’s disclosures about NSA’s spying activities were published. Hugh Eakin, writing for The New York Review of Books, notes that Over the following weeks and months, Snowden’s revelations about the NSA’s global surveillance efforts, and in particular its bulk data collection program, called PRISM, set off a protracted debate in the United States and ultimately prompted Congress to implement new restrictions on the NSA in 2015. Similar scrutiny was brought to bear on Britain’s GCHQ and its own program called TEMPORA, which aimed to tap directly into transatlantic fiber optic cables to intercept what The Guardian described as ‘vast quantities of global email messages, Facebook posts, internet histories and calls’, which it was sharing with the NSA. (Eakin 2017) Eakin goes on to argue that the NSA and GCHQ programmes were falsely portrayed in the media as ‘dangerous aberrations’ of two ‘overreaching’ Western allies, rather than part of a carefully planned and systematised practice. Moreover, he argues, to the extent that other European countries were at all mentioned in the media, ‘it was as victims of British and American spying’ and not as countries whose government spokespersons were silently aware of or even complicit in their practices (ibid.). The parts of the Snowden revelations released to the Swedish public broadcasters Sveriges Television convey a message that is rather different from these assumptions. One of the disclosed NSA documents, a top-secret ‘information paper’ entitled ‘NSA Intelligence Relationship with Sweden’, dated April 18th the same year, manages to, with relatively few words, say a lot about the NSA–FRA work relationship. First, it mentions that in addition to signing the above-mentioned bilateral agreement with the United States in 2004, FRA had also intensified its data exchange with the NSA in 2011 by giving them access to a ‘unique cable collection’ including information on ‘high-priority Russian targets such as leadership, internal politics, and energy’ (National Security Agency 2013a). The document does not, however, state exactly which kind of signals this collection consists of – that is, whether it was content data, traffic data, a combination, or something else – but as noted in the previous section, the intelligence gathered through FRA’s auxiliary operations, which seems typically to consist of traffic data on communication patterns, seems to have been shared routinely with foreign services at the time. Second, the report commends the recent expansion of FRA’s mandate which enabled them to work directly with SÄPO. Third, and perhaps most tellingly,

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the document praises FRA for being ‘an extremely competent, technically innovative, and trusted’ partner to the NSA which ‘continues to grow’. It particularly highlights FRA’s ‘proficien[cy] in collecting a wide variety of communications’ at ‘numerous collection sites’ (ibid.). Regarding the latter, Eakin writes that although Sweden’s technological capabilities in signals intelligence have been hardly recognised in the international press – or for that matter in Intelligence Studies or adjacent scholarly fields – this had in fact been discussed by Snowden himself: ‘In videotaped testimony to the European Parliament in March 2014, Snowden said, “As it pertains to the issue of mass surveillance, the difference between … the NSA and [the Swedish] FRA is not one of technology, but rather funding and manpower”’ (Eakin 2017). In 2013, NSA’s employed an estimated 35–55,000 people compared to FRA’s 700 and had a budget roughly 80 times larger than the Swedish agency (Groll 2013; Government of Sweden 2013). Technologically, however, FRA analysts were clearly trusted by the NSA to be competent enough. The Snowden files released to Swedish media show that FRA was given access to a tool called Xkeyscore in 2013. Xkeyscore is one of the NSA’s ‘most powerful search tools in its enormous databases of wiretapped material’ (Rensfeldt 2013) and is referred to elsewhere as ‘the Google of wiretapping’ (Holmström 2013). In the NSA’s ‘Unofficial XKeyscore User Guide’ released by The Intercept in 2015, it can be noted that the tool enables single queries and multi-searches (including metadata) in NSA’s vast collections of emails, phone numbers, IP addresses, social media posts, chat logs, documents, spreadsheets, and more, in languages such as English, Arabic, and Chinese (National Security Agency 2007). Here, analysts can ‘perform queries using “strong selectors” such as e-mail addresses, but also using “soft selectors”, such as keywords’ against the various bodies of texts in the NSA databases (Bigo 2019: 386). Bigo also notes that XKeyscore predominantly sorts through ‘raw and unselected communications traffic’ (ibid.), in other words, precisely the kind of data that had for years been collected, processed, and shared by the FRA’s auxiliary operations unit. The tool had been implemented and tested by the FRA since January of 2013, at which time NSA also deployed a counterterrorism analyst to Stockholm to oversee the work. In fact, Xkeyscore is a search programme that became shared by the NSA with a number of key intelligence allies in the post-9/11 period: it has also been used by the GCHQ, the Australian Signals Directorate (ASD), Canada’s Communications Security Establishment (CSE), the New Zealand Government Communications Security Bureau (GCSB), Japan’s Defense Intelligence Headquarters (DIH), and the German Bundesnachrichtendienst (BND) (ibid.). Among the Snowden files relating to Sweden, there is another internal report on a ‘strategic planning conference’ held in the United States with an invited FRA delegation between the 24th and 26th of April 2013. The conference report states that the implementation of the Xkeyscore search tool at FRA was in fact motivated by a larger collaborative project, called ‘Quantum’ (National Security Agency 2013c). Quantum had been initiated

Techno-Legal Boundaries of Intelligence 167 by NSA director Keith Alexander and involved both FRA and the British GCHQ. FRA’s involvement in the Quantum project was deemed by the Swedish media as one of the most controversial aspects of the transatlantic intelligence partnership. This is because Quantum involved offensive hacking operations in which the signals of individual computers and smartphones were rerouted through specially designed ‘links’ to false attack servers where ‘shots’ were made against the user’s computer or smartphone, allowing spyware to be installed on the device (Rensfeldt 2013). This spyware then ‘marked’ specific pieces of wanted data on the device, so that they would become immediately visible and collectable in the vast amount of information that runs through the cables monitored by intelligence services (Holmström 2013). It is unclear which kinds of data were ‘marked’ in such operations, but it can be expected that they relate to individual terrorist targets or other national security threats. The above-mentioned conference report also makes multiple mentions of a specific operation within the Quantum project, named ‘Winterlight’. During operation Winterlight, Swedish FRA secretly hacked 100 digital devices on behalf of the NSA and managed to install the malware on five computers. This led the five ‘marked’ computers to be rerouted to British Quantum servers, without the users’ knowledge or consent (ibid.). It is again unclear which kind of data operation Winterlight aimed to mark and collect, but it is concluded during the 2013 NSA–FRA strategic planning conference that the operation ‘validated the “proof of concept” that was originally trying to be accomplished’ (National Security Agency 2013c); in other words, the hacking technique utilised by FRA proved successful and was likely to be used again in the future. Sweden and FRA are, in fact, no strangers to developing and using intrusive hacking tools. At the end of the 1990s, FRA established a department whose job was to test the security and integrity of Swedish agencies’ computer and server systems. This was done by conducting so-called ‘red team’ exercises which essentially meant that they ‘hacked’ their own IT systems in order to find flaws and vulnerabilities. FRA note in one of their own publications that their technical and professional knowledge about ‘information security coupled with signals intelligence about foreign attackers and their methods’ gave them ‘unique insights’ in this area from early on (Wallin 2018: 24). Moreover, as Eriksson and Lagerkvist (2016: 87) discuss, the Armed Forces and the Swedish Defence Research Agency (FOI) both have IT units with similar ‘capacity and expertise for testing cybersecurity vulnerability’, and these have been ‘known to conduct computer attacks (hacking, denial-of-service attacks, etc.) and commence tests on a regular basis’. The fact that FRA as well as other Swedish security and defence agencies seem to regularly conduct penetration tests, Eriksson and Lagerkvist conclude, ‘indicates that even if there is not yet an operative cyber-offensive system or cyberwarfare strategy, there is know-how (ibid. [emphasis added])’. In addition to know-how, Sweden’s stance on cybersecurity in fact became more or less explicitly ‘offensively oriented’ a

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few years after the Snowden disclosures when defence minister Peter Hultqvist indicated that, in light of recent technological developments in the cybersecurity domain, ‘if you are serious in thinking about the future, you have to keep up and in some way develop our capabilities. And when you speak of capabilities, it means defensive as well as offensive ones’ (cited in ibid.). The 2013 conference report contains several passages where Sweden’s signals intelligence capabilities are, again, stressed as crucial for NSA’s operations. For instance, it states that in future hacking operations, NSA would prefer to lead the computer and smartphone signals ‘marked’ by FRA’s malware directly to NSA’s databases, instead of first going through GCHQ’s databases, as was the case during Winterlight. In another NSA document picked up by Swedish media (which is untitled but seems to be related to the strategic planning conference), it is even stated that ‘NSA’s goal all along has been to transition [the Quantum] effort to a bilat [sic] with the Swedish partner’. This was motivated by the fact that the GCHQ were apparently ‘doubtful about continuing in the project because of restrictions in British legislation’ (Rensfeldt 2013). To Eakin (2017), this suggests that the NSA were trying to increasingly circumvent the GCHQ at the time and that they had even come to consider Sweden ‘a more reliable surveillance ally than Great Britain’. This illustrates the concrete impact of domestic legislation on transatlantic intelligence relations and exchanges. Restrictions in UK law in combination with FRA’s broadened leeway in recent years, and their seemingly clear willingness to cooperate and share data with foreign services, has arguably contributed to a partial shift in the United State’s and United Kingdom’s so-called ‘special relationship’ and disturbed the parts of this historical relationship that pertain to the issue of intelligence cooperation (see also Ben Jaffel 2020: 2–3; cf. Reynolds 1985; Scarlett 2020). The conference report also offers some more details regarding the extent to which data sharing has taken place between NSA and FRA: NSA state that they ‘would like to continue to collaborate on FRA’s cable access program, which has resulted in unique SIGINT reporting on a variety of high-priority SIGINT topics (123 reports thus far this fiscal year)’ (National Security Agency 2013c). Here, it remains unclear to what extent this exchange is proportional, i.e., if FRA and the Swedish government receive a similar number of reports in return. It is also unclear what kind of data these reports draw on, but it can be assumed that it is information associated with FRA’s cable collection on Russia since the NSA also write that they want to [t]hank Sweden for its continued work on the Russian target, and underscore the primary role that FRA plays as a leading partner to work the Russian target, including Russian leadership, energy, and counterintelligence. FRA’s cable access has resulted in unique SIGINT reporting on all of these areas. (National Security Agency 2013c)

Techno-Legal Boundaries of Intelligence 169 Indeed, British journalist Duncan Campbell (cited in Eriksson and Lagerkvist 2016: 85) as well as Bigo and Bonelli (2019: 116) all note that FRA’s cable collection appears to be unique to the United States since it includes Russian traffic data that passes through both the terrestrial and submarine cables within Swedish territory. In addition to providing NSA with Russian traffic data, the conference report also states that ‘NSA/CSS’ Counter-terrorism (CT) analysts and FRA continue to cooperate and collaborate on CT threat-related activities in Europe’. More specifically, through ‘several analyst-to-analyst meetings’, FRA has helped the NSA’s European Cryptologic Centre (ECC) at the US military base in Darmstadt, Germany, ‘with high-priority CT Swedish language traffic that ECC is currently unable to fully analyze’ (National Security Agency 2013c; see also Rensfeldt 2013). Here, however, there might be more to the NSA–FRA counter-terrorism collaboration in Europe than mere matters of translation. As Eakin (2017) notes, when Germany and France a few months after Snowden’s disclosures ‘pressed the EU to hold talks with US officials to learn more about NSA spying in Europe, Sweden joined the United Kingdom in vetoing the move’, demonstrating how Sweden seems to serve as a key partner for not only technically facilitating but also politically supporting NSA’s surveillance activities in the European digital environment. To conclude, NSA and FRA’s collaboration in signals intelligence and digital surveillance since around 2004 and onwards is a rather unique case. With their intelligence gathering and sharing activities in the early 2000s, it seems that the FRA was treading, or even routinely exceeding, the boundaries of what was legally possible in Sweden, as shown in the previous section. Even when their wiretapping activities became partially inscribed in law in 2008, FRA continued to push their offensive hacking activities in the early 2010s to limits even the British GCHQ were hesitant to move beyond. In fact, the findings in the Snowden files relating to projects like Quantum illustrate how FRA, with their long experience of conducting secret data collection and hacking, in collaboration with the NSA and their enormous manpower and funding, were concerned less with the boundaries of what was legally possible, and rather constrained by what was technologically possible in the area of signals intelligence. Hence, not necessarily legal, ethical, or even national security aspects, but material capabilities and technological know-how seemed to be the central factors as to why FRA and their analysts became positioned in such close proximity with the NSA. The following section will develop this argument.

A Transatlantic Guild Organised Around Techno-legal Capabilities? The last two sections have demonstrated why analyses of intelligence practices and their implications require narratives beyond those of state

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spokespersons. Basing an investigation into the recent activities of intelligence services like the FRA or NSA exclusively on the ‘official truths’ produced and released by the state will say little about their actual practices, or even invisibilise them with regards to ‘secrecy’ (see also Bigo, this volume). When intelligence services may develop ways to gather, process, store, and share various forms of personal data covertly, and surveil citizens without their consent or without the need to produce an ‘official’ explanation, it becomes especially relevant to turn to ‘unofficial’ narratives – to ‘unauthorised disclosures’ or journalistic findings – in order to initiate a social scientific enquiry into their everyday work. Even in cases where intelligence services are regulated by a more or less explicit legal framework, surrounding them with an ‘approved’ and ‘legitimate’ discourse, these frameworks need to be carefully investigated for nuances and openings and, as best as possible, put in relation to what is being done in practice. To restate a point made at the start of this chapter, this becomes particularly the case if we attempt to analyse the transnational information sharing between intelligence services. Far from suggestions that such collaborative activities would be unusual or exceptional, an investigation going beyond ‘official’ explanations – even if such ‘alternative’ material is fragmentary and fails to paint the full picture – may show how transnational intelligence sharing is in fact a routine practice. Particularly the many bureaucratic and everyday professional connections linking together foreign services with the NSA’s expansive counter-terrorism and national security operations in recent years show that, among these actors, ‘transnational logics and allegiances are stronger than purely national ones’ (Bigo and Bonelli 2019: 110). To develop this point in the context of the Swedish–US intelligence partnership, we may exemplify by once again turning to the annual strategic planning conferences between the NSA and FRA (National Security Agency 2013c). In the conference agenda, the list of participants shows that the meetings did not involve any elected representatives of the public, such as members of parliament or representatives from the government. Not even spokespersons from the ministries of defence and justice, who are the services’ de facto agenda setters and accountable superiors, were present. Rather, the list of participants included high-level civil servants, bureaucrats, and analysts at varying levels and branches of the intelligence apparatus. Present in the Swedish delegation were, for instance, not only the FRA director (Ingvar Åkesson) and deputy director (Christina Malm) but also a technical director, SIGINT director, special liaison officer, a foreign relations officer, and a strategic advisor from the agency’s above-mentioned auxiliary operations unit. Present among the US hosts were not only the NSA director (Keith Alexander) and foreign affairs director (James Cusick) but also a number of anonymised bureaucrats and analysts from various branches of the NSA such as the signals intelligence directorate, the cyber operations, ‘special projects’, and Russia offices, the counter-terrorism production and commercial

Techno-Legal Boundaries of Intelligence 171 solutions centres, the department for ‘computer technologies exploitation applications’, the NATO advisory committee, and the SIGINT Seniors Europe group (National Security Agency 2013b). Based on this list of individuals, and what appears to be their main areas of expertise and/or responsibility, it becomes quite clear that the meetings focused primarily on the development and exchange of professional knowledge and skills, on practical arrangements and strategic issues, and on presentations and assessments of the various technical solutions involved in their collaboration. In other words, the conference seemed to involve very little high-political or diplomatic discourse and dialogue around security or foreign policy issues, and far more of a specialised technical discourse and concrete discussions relating to their actual everyday intelligence work. This particular socio-professional context corresponds quite well with how Didier Bigo describes the formation of ‘transnational guilds’ of specialised bureaucrats: ‘once [they] are engaged heavily in the exchange of information and regular meetings, [bureaucrats] … have a strong autonomy and are far from being subordinate to the field of the professionals of politics, notably, as the latter often have fewer transnational links’ (Bigo 2016: 408). Indeed, when bureaucratic agents from different intelligence services meet, they do so with a very specialised knowledge and professional disposition, or what Bourdieu (e.g., 1985) calls a habitus. This more or less shared habitus is what connects the agents. It is per definition social, not national, and may therefore follow whatever spatial trajectories and transnational connections the social agents generate through their everyday interactions. Thus, despite coming from different parts of the world and serving under different government ministries, intelligence analysts’ and bureaucrats’ national disposition may, in practice, become subordinated to the professional disposition organising them into these transnational guilds. Their professional disposition can be broken down into more specific components as well. The relations in guilds of professionals are usually formed or shaped around what the agents, in a rather specific sense, actually do in their daily life. Their educational and professional backgrounds, their technical skills, their competencies related to certain computer systems, their practical understandings of an organisation – in short, their ‘artisanal craft’ – is what weaves together a guild-specific social fabric. Their craft, not their obedience to a national culture, is primarily what may create so-called ‘solidarities at a distance’ among different intelligence analysts and bureaucrats (Bigo 2016: 398). When they meet at ‘strategic planning conferences’ and similar, what draws them together can for instance be the mundane routines and procedures for producing and sharing data: As intelligence data are constituted by the types of questions that are raised and methods of reasoning that are used, data exchanges are actually more routine between services that belong to different countries but that share the same visions, know-how and practices concerning

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This wider argument, including its connections to the FRA–NSA case discussed above, problematises not only the typical national security frameworks in IS scholarship but also some of the earlier sociological work on secrecy, such as Georg Simmel’s seminal piece on ‘secret societies’ (Simmel 1906). Simmel believed that secrecy was a social means with certain peculiar ‘charms’ and ‘values’ that could be applied as a form of commodity so as to create a ‘strongly accentuated exclusion of all not within the circle of secrecy’ (1906: 464). As such, secrecy has both an external meaning, ‘as relationship of him [sic] who has the secret to him who does not have it’, and an internal meaning in how it at the same time ‘determines the reciprocal relations of those who possess the secret in common’ (ibid.: 469). Internally, these reciprocal relations would be characterised by interdependencies based not on professional craft, but on the mutual guarantee that without the protection of the secret, their accentuated feeling of exclusivity would be lost; or as put by Simmel, the specific socialisation within the society of secrets ‘affords to each of these individuals a psychological recourse for strengthening him against temptations to divulge the secret’ (ibid.: 477). However, drawing on the insights in this chapter, we may argue on the contrary that secrecy, or secrets in a more commodified sense, play a far lesser role in the organisation and delimitation of certain social spaces, circles, or guilds. First, it can be argued that restricted social spaces are not ‘strongly accentuated’, never based entirely on an active or conscious inclusion of some and exclusion of others according to a strict definition of what is the ‘secret’. Rather, secrets are always partially disclosed and to some extent shared since, in the words of Bigo (2019: 381), ‘a secret forgotten by everyone is not anymore a secret’. Hence, secret societies are not so much strictly socialised spaces, as Simmel seems to suggest, but far more of a spectrum and a ‘politics’, a continuum between those who know a little and those who know more, and a contingent relationship by which insiders and outsiders are always on the move. For instance, the list of invited participants to the NSA and FRA’s annual planning conferences – who then get to know a little but not everything about their organisations’ joint surveillance and hacking operations – may shift from year to year depending on current needs or priorities. Second, it can be argued, on the same basis, that the particular form of knowledge involved in the organisation and delimitation of transnational intelligence guilds is of a mundane rather than exceptional and ‘secretive’ character. At the heart of the NSA and FRA collaboration is, again, a shared professional disposition and technical know-how regarding a very specific form of intelligence work; namely, how to collect communications data in bulks, how to process, store, and share such Internet and telephone

Techno-Legal Boundaries of Intelligence 173 traffic, and how to hack specific devices in order to install a malware on them for content analysis at a later stage. For this rather specialised need, NSA turned not to their usual Five Eyes allies such as the British GCHQ, but to a small signals intelligence agency in Sweden. To the FRA, covertly collecting traffic data and conducting intrusive hacking operations had become a mundane and everyday practice in recent decades, something already part of their daily activities, making them a seemingly ideal partner in NSA’s Quantum and Winterlight projects. To the NSA, FRA possessed a unique combination of know-how based on technological capital (computer skills and the appropriate ICT infrastructure), material capital (direct access to fibreoptic cables in geopolitically valued locations), and socio-legal capital (an awareness of the opportunism and flexibility in the Swedish legislation regarding notions such as ‘data’ and ‘operations’). This combination of capitals had emerged as more valuable to the NSA at the time than the historical and geopolitical capital brought into play by the GCHQ and other actors in the Five Eyes network. Following Bourdieu, this illustrates how the given value and function of a particular kind of capital (valued resource) shifts over time depending on what is at stake among the actors in the field, and how this in turn has the potential to transform the entire configuration of the (intelligence) field as such.

Conclusion This chapter has explored FRA’s shifting role in the early 2000s from a seemingly small and conventional signals intelligence agency to a key player at the forefront of NSA-initiated mass surveillance and hacking programmes in the name of the ‘war on terrorism’. It has done so by discussing, first, FRA’s ability to conduct bulk data collection and intelligence sharing at the very boundaries, or even beyond the boundaries, for what was legally possible in Sweden at the time. Second, via a reading of the Snowden files, it has discussed FRA’s apparent willingness to participate in NSA’s intrusive surveillance practices and digital spying campaigns such as Quantum, and how these challenged not only legal limits but also what was technologically possible in the area of signals intelligence. In doing so, the chapter concludes that the case of the NSA and FRA bilateral collaboration is a unique one in how it manages to destabilise the doxic understanding of a ‘special relationship’ between the United States and the United Kingdom as well as common perceptions about a Five Eyes alliance. Not only were the GCHQ hesitant to partake in operations where FRA led the charge but it also became clear that Sweden had emerged as a key ally in this alliance not due to their political standing, but more due to their material capabilities and professional know-how. The strategic position of fibreoptic cables containing signals related to the ‘Russian target’ certainly played a key role in the expansion of the US–Swedish bilateral intelligence collaboration, but of

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equal importance, if not more, were FRA’s technological skills and computer equipment, their long history of conducting data collection and secret hacking on a routine basis, and their ability to understand and work around domestic signals intelligence legislation. Again, the Five Eyes alliance is no longer limited to a group of five, but ‘includes more than a dozen intelligence agencies or sub-units from countries such as France, Germany, Spain, and Sweden, which have all put in place infrastructures for the interception of data’ (Bigo and Bonelli 2019: 111). This has prompted some to talk of a ‘Five Eyes Plus’ or a ‘Fourteen Eyes’ network. Simply adding ‘eyes’ to the original Five is rather pointless, however. As a Bourdieusian approach helps us see, the actual social space in question is made up not of actors defined firstly by national borders and secret allegiances, but more accurately, by a variety of professionals who become connected and disconnected with each other based on their practical interests and know-how. This is why FRA – who are tech-savvy but nevertheless comparatively small in staffing and budgetary resources, and who serve under a government whose outward stance is still one of relative international ‘neutrality’ – emerged as a prominent actor in the network associated with SIGINT Seniors Europe and the Five Eyes ‘Plus’. Connecting these findings and arguments to the notion of transnational professional guilds of intelligence bureaucrats, this chapter hence illustrates what Bigo perceives as a ‘reconfiguration of loyalties worldwide, disaggregating the state as we have known it during the 19th century with the primacy of nationalist frames and the normative acceptance that elected politicians are in charge of the state’ (Bigo 2016: 412). This chapter also demonstrates the potential benefits of the approach set out in this collective volume. By departing from the perspective of actor relations and their practices, rather than received wisdoms about secret services and their secret networks, we may reconstruct the object of transnational intelligence cooperation and information exchanges and add much needed empirical nuance to the larger question concerning the increasingly expanding and intrusive roles of intelligence actors. Finally, as it pertains to the broader public in Sweden and their relative awareness and acceptance of the government agency’s signals intelligence practice, the NSA–FRA case becomes even more puzzling. When the Swedish media reports on the Snowden files were published, unveiling FRA’s extensive involvement in transatlantic hacking and mass surveillance practices for at least a decade, the response was muted. As Eakin (2017) notes, ‘[u]nlike in the US, no parliamentary hearings were held’ in Sweden. According to Klamberg, this is because parliamentarians, then as well as now, tend to ‘remain in the dark about many aspects of the FRA program’ (cited in ibid.). Another reason may be the Swedish public’s general docility towards security and defence authorities, in addition to their inclination to trust the words of their government. Hence, the way forward may be to

Techno-Legal Boundaries of Intelligence 175 increase awareness and improve oversight mechanisms in the intelligence area, so that the (mis)conduct of Swedish authorities and the FRA in particular is made clearer. Here, an important first step is the government’s recently published public investigation report on the current regulation of ‘FRA’s international cooperation’ (SOU 2020), which may (or may not) result in updated legislature. In any case, more academic research on the intersections of modern intelligence and democratic oversight, in Sweden and beyond, is badly needed.

Notes 1 See also the Introduction chapter in this volume. 2 Among the NSA files leaked to journalists in 2013, the documents that included information on Sweden and the FRA agency were shared with the Swedish public broadcasting company Sveriges Television and covered by their TV programme ‘Uppdrag Granskning’ who focus on investigative journalism and in-depth news stories. The programme published an online summary of their findings in English: https://www.svt.se/nyheter/granskning/ug/read-the-snowden-documents-from-thensa [retrieved 21-05-25]. In addition, a supposedly ‘complete collection’ of all Snowden documents have also been gathered in a digital database called ‘The Snowden Surveillance Archive’, run by the organisation called the Canadian Journalists for Free Expression: https://www.cjfe.org/snowden [retrieved 21-05-25]. 3 Klamberg (2010: 118) explains this logic further: ‘In the view of how modern telecommunication works, it is impossible at the transfer stage to sort out domestic communication that cross the border. It is an automated process how communication is routed. The person who communicates cannot decide which medium or combination thereof will be used at a given point of time. It is not even certain that the shortest geographical way will be used. Communications which appear to be purely domestic can therefore take a detour through other countries. The route used is determined by pure economic considerations such as price and capacity’. 4 Established in 2009, the Swedish Defence Intelligence Court authorises the data collection after an application from the FRA but prior to the commencement of collection activities. As explained in an EU Fundamental Rights Agency report (2017b, 96), FUD ‘can have four to nine members: two or three ordinary judges (the chair and vice chair; there can be a second vice chair), and two to six lay members. The panel that hears a case and grants authorisations must be composed of at least the chair and two lay members (and not more than three lay members). The government appoints all members’ (see also Government of Sweden 2009, and http://www.undom.se [retrieved 21-05-25]). 5 Intelligence oversight duties are divided between different public institutions in Sweden. The primary oversight actor is the State Inspection of Defence Intelligence Operations (Statens Inspektion för Försvarsunderrättelseverksamheten, SIUN). SIUN monitors the FRA’s overall conduct, including reviews of the processing of personal data that CSPs are obliged to hand over at the interaction points, and that data collection complies with the permits issued by FUD. Some oversight is also provided by the Chancellor of Justice (Justitiekanslern, JK), the Swedish Authority for Privacy Protection (Integritetsskyddsmyndigheten, IMY), as well as two standing parliamentary committees on Justice and Defence, respectively (European Union Agency for Fundamental Rights 2017a: 32–33, 38, 46; 2017b: 79; see also SOU 2020).

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References Ben Jaffel, Hager. 2020. ‘Britain’s European Connection in Counter-Terrorism Intelligence Cooperation: Everyday Practices of Police Liaison Officers’. Intelligence and National Security 35 (7): 1007–1025. Online. Bigo, Didier. 2016. ‘Sociology of Transnational Guilds’. International Political Sociology 10 (4): 398–416. 10.1093/ips/olw022 Bigo, Didier. 2019. ‘Shared Secrecy in a Digital Age and a Transnational World’. Intelligence and National Security 34 (3): 379–395. Bigo, Didier, and Laurent Bonelli. 2019. ‘Digital Data and the Transnational Intelligence Space’. In Didier Bigo, Engin Isin, and Evelyn, Ruppert. (Eds.). Data Politics: Worlds, Subjects, Rights. London: Routledge. Bourdieu, Pierre. 1985. ‘The Genesis of the Concepts of Habitus and of Field’. Sociocriticism 2 (2): 11–24. Bourdieu, Pierre. 1990. In Other Words: Essays Toward a Reflexive Sociology. Translated by Matthew Adamson, 1st edition. Stanford, CA: Stanford University Press. Eakin, Hugh. 2017. ‘The Swedish Kings of Cyberwar’. The New York Review of Books. Available at: https://www.nybooks.com/articles/2017/01/19/the-swedish-kings-ofcyberwar/ Eriksson, Gunilla. 2016. Swedish Military Intelligence: Producing Knowledge. Edinburgh: Edinburgh University Press. Eriksson, Gunilla. 2018. ‘A Theoretical Reframing of the Intelligence–Policy Relation’. Intelligence and National Security 33 (4): 553–561. 10.1080/02684527.2 018.1452558 Eriksson, Johan, and Johan Lagerkvist. 2016. ‘Cyber Security in Sweden and China: Going on the Attack?’ In Karsten Friis, and Ringsmose Jens (Eds.). Conflict in Cyber Space: Theoretical, Strategic and Legal Perspectives, London: Routledge, pp. 83–94. European Union Agency for Fundamental Rights. 2017a. Surveillance by Intelligence Services: Fundamental Rights Safeguards and Remedies in the EU – Volume 1: Member States’ Legal Frameworks. Vienna: European Union Agency for Fundamental Rights. European Union Agency for Fundamental Rights. 2017b. Surveillance by Intelligence Services: Fundamental Rights Safeguards and Remedies in the EU – Volume 2: Field Perspectives and Legal Update. Vienna: European Union Agency for Fundamental Rights. Government of Sweden. 2007a. ‘Proposition (2006/07:46) Personuppgiftsbehandling Hos Försvarsmakten Och Försvarets Radioanstalt [Processing of Personal Data by the Armed Forces and the National Defence Radio Establishment]’. Government of Sweden. Government of Sweden. 2007b. ‘Proposition (2006/07:63) En Anpassad Försvarsunderrättelseverksamhet [An Adapted Defence Intelligence Operation]’. Government of Sweden. Government of Sweden. 2008. ‘Lag (2008:717) Om Signalspaning i Försvarsunderrättelseverksamhet [Law on Signals Intelligence in Defence Intelligence Operations]’. Government of Sweden. Available at: https://www.riksdagen.se/sv/dokument-lagar/ dokument/svensk-forfattningssamling/lag-2008717-om-signalspaning-i_sfs-2008-717

Techno-Legal Boundaries of Intelligence 177 Government of Sweden. 2009. ‘SFS 2009:968 Förordning Med Instruktion För Försvarsunderrättelsedomstolen [Ordinance Letter with Instructions to the Defence Intellligence Court]’. Government of Sweden. Government of Sweden. 2013. ‘Budgetpropositionen För 2013: Kap. 6 Försvar Och Samhällets Krisberedskap [Budget Proposition 2013: Ch. 6 Defence and Crisis Management]’. Government of Sweden. Groll, Elias. 2013. ‘By the Numbers: The NSA’s Super-Secret Spy Program, PRISM’. Foreign Policy 2013. Available at: https://foreignpolicy.com/2013/06/07/ by‐the‐numbers‐the‐nsas‐super‐secret‐spy‐program‐prism/ Holmström, Mikael. 2013. ‘Intimt Samarbete Mellan FRA Och NSA’. Svenska Dagbladet: 2013. Available at: https://www.svd.se/intimt-samarbete-mellan-fraoch-nsa Jacobs, Bart. 2020. ‘Maximator: European Signals Intelligence Cooperation, from a Dutch Perspective’. Intelligence and National Security 35 (5): 659–668. 10.1080/02 684527.2020.1743538 Klamberg, Mark. 2009. ‘FRA:s signalspaning ur ett rättsligt perspektiv’. Svensk Juristtidning (4): 519–541. Klamberg, Mark. 2010. ‘FRA and the European Convention on Human Rights: A Paradigm Shift in Swedish Electronic Surveillance Law’. In Dag Wiese Schartaum. (Ed.). Overvåking i En Rettstat. Nordic Yearbook of Law and Information Technology. Bergen: Fagforlaget, pp. 96–134. Klamberg, Mark. 2012. ‘The Chilling Effect of Counter-Terrorism Measures: A Comparative Analysis of Electronic Surveillance Laws in Europe and the USA’. In Josep Casadevall, Egbert Myjer, Michael O’Boyle, and Anna Austin. (Eds.). Freedom of Expression: Essays in Honour of Nicolas Bratza. Oisterwijk: Wolf Legal Publishers. Lillbacka, Ralf. 2010. ‘A Swedish Ebbinghaus Illusion? Submarine Intrusions in Swedish Territorial Waters and Possible Soviet Deception’. Intelligence and National Security 25 (5): 656–681. 10.1080/02684527.2010.537122 Lillbacka, Ralf. 2015. ‘A Critical Assessment of Alleged Evidence of Western Submarine Intrusions in Swedish Territorial Waters’. Intelligence and National Security 30 (4): 508–537. 10.1080/02684527.2013.875384 National Defence Radio Establishment. 2021. ‘Internationell Terrorism’. Försvarets Radioanstalt (FRA). 2021. Available at: https://fra.se/underrattelser/internationell terrorism.4.60b3f8fa16488d849a546f.html National Security Agency. 2007. ‘The Unofficial XKEYSCORE User Guide’. United States National Security Agency. National Security Agency. 2013a. ‘NSA Intelligence Relationship with Sweden’. [Information paper]. United States National Security Agency/Central Security Service. National Security Agency. 2013b. ‘Strategic Planning Conference Agenda 24–26 April 2013’. United States National Security Agency/Central Security Service. National Security Agency. 2013c. ‘SWEDUSA 2013 Strategic Planning Conference (SPC)’. [Visit Précis]. United States National Security Agency. Rensfeldt, Gunnar. 2013. ‘Read the Snowden Documents From the NSA’. Sveriges Television, 2013. Available at: https://www.svt.se/nyheter/granskning/ug/read-thesnowden-documents-from-the-nsa

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Reynolds, David. 1985. ‘A “Special Relationship”? America, Britain and the International Order since the Second World War’. International Affairs 62 (1): 1–20. 10.2307/2618063 Scarlett, John. 2020. ‘US and UK Intelligence and Security Relationship: The Way Forward – Together’. RUSI (blog). Available at: https://www.rusi.org/commentary/ us-and-uk-intelligence-and-security-relationship-way-forward-–-together Simmel, Georg. 1906. ‘The Sociology of Secrecy and of Secret Societies’. The American Journal of Sociology 11 (4): 58. SOU. 2020. ‘Försvarets radioanstalts internationella samarbete - en översyn av regelverket: betänkande av Utredningen om regleringen av Försvarets radioanstalts internationella samarbete’. 2020:68. Stockholm: Government of Sweden. Swedish Security Services. 2021. ‘Nationellt Centrum För Terrorhotbedömning [National Centre for Terrorist Threat Assessment]’. SÄPO. 2021. Available at: https://www. sakerhetspolisen.se/kontraterrorism/nationellt-centrum-for-terrorhotbedomning.html Tunander, Ola. 2013. ‘Subs and PSYOPs: The 1982 Swedish Submarine Intrusions’. Intelligence and National Security 28 (2): 252–281. 10.1080/02684527.2012.699294 Wallin, Fredrik. 2018. ‘A Brief History of the FRA’. National Defence Radio Establishment. Weller, Geoffrey R. 2000. ‘Political Scrutiny and Control of Scandinavia’s Security and Intelligence Services’. International Journal of Intelligence and CounterIntelligence 13 (2): 171–192. 10.1080/08850600050129709 Wulff, Petter. 2013. ‘The Impact of a High-Tech Spy’. Intelligence and National Security 28 (2): 159–180. 10.1080/02684527.2012.699295

Part III

Conceptual Reconsiderations of Intelligence

9

Regulating the Internet in Times of Mass Surveillance: A Universal Global Space with Universal Human Rights? Alvina Hoffmann

Information and telecommunication technologies cannot be the new battlefield between States. Time is ripe to create the conditions to prevent cyberspace from being used as a weapon of war, through espionage, sabotage, and attacks against systems and infrastructure of other countries (Dilma Rousseff, former Brazilian president, addressing the UN General Assembly on 24 September 2013).

Introduction After Edward Snowden’s disclosures of extensive global surveillance practices by several government intelligence agencies in early June 2013,1 Rousseff addressed the UN General Assembly a few months later. Her statement condemned the practices of a global espionage network, pointing out how Brazilian citizens, economic and corporate data as well as diplomatic missions and even the President’s office were targets. At the same time, Rousseff established Brazil as the frontrunner in creating ‘a civilian multilateral framework for the governance and use of the Internet and to ensure the effective protection of data that travels through the web’ (UN General Assembly 2013a). One of the most fundamental suggestions in her address is the principle of net neutrality which should be ‘guided only by technical and ethical criteria, rendering it inadmissible to restrict it for political, commercial, religious or any other purposes’ (ibid.). Domestically, Brazil put forward an innovative legislation which might have important repercussions internationally due to its universal approach to the Internet and human rights. This includes the Marco Civil, or a digital bill of rights, which proposes a powerful alternative geopolitical imaginary for digital spaces, which I will analyse in more depth in the second part of this chapter. The international stakes of this Internet legislation became clear very rapidly as Rousseff mobilised the stage of the UN and important geopolitical alliances. Following her speech, Brazil and Germany drafted a UN resolution in November 2013 entitled ‘The Right to Privacy in the Digital Age’, calling upon all member states to protect human rights offline and online DOI: 10.4324/9781003205463-12

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(UN General Assembly 2013b). The aim of this resolution was to expand the existing international human rights regime, pushing against security logics which demand sacrifices from human rights protection frameworks. As Guild (2014) showed, the wording of the resolution ties the right to privacy to the right to freedom of expression. Insisting on the language of international human rights law cuts across the territorialising force of state rule which seeks to contain the reach of human rights law within their own boundaries. This is no different in the digital age, as Chander and Le outline in their piece ‘Data Nationalism’ in which they map various governments’ practices constraining ‘the free flow of information across borders’ (2015: 679). Such territorialising practices map digital spaces onto state territories and limit the protection of Internet users which becomes a condition of their citizenship and the domestic laws of their states. In light of this, a global reach of the human right to privacy of each Internet user can become a powerful alternative imaginary with potentially profound transformations of the citizen, territory, and state relationship. As Rousseff has pointed out in 2013, this neglected question of human rights on the Internet is particularly urgent in times of mass surveillance. Yet, what is so particular about digital spaces? Since its inception, the Internet has been inhabited by multiple forces and actors with diverging stakes and interests, whether of military nature, the defence of state territoriality, or by counter-revolutionary, democratic, human rights or freedom-driven social forces. Rosenzweig (1998) provides a fruitful review of the early histories and socio-political struggles between diverse protagonists in the making of the Internet. In rooting the rise of the Internet in the 1960s, he contrasts imaginaries of openness espoused by counterculture forces and those of closedness of ‘Cold Warriors’, shaping the early Internet as either a space of democracy and heterogeneity, or centralisation for the purposes of military command. These dialectic dynamics have taken various forms over time in specific socio-political contexts, led on by ever new voices. This chapter builds on this understanding of the Internet as a social space of struggle between voices which fight for its freedom and independence and those who seek to increase geopolitical control over cyberspace. I will focus on the socio-legal frontline of this struggle, by centring the transnational effects of national legislations and practices. Various socio-legal forces involved in drafting and enacting these legislations have a stake in this struggle over imposing particular legal imaginaries on the Internet. I use the notion of imaginary as a set of legal concepts, practices and mental categories that shape the way social actors ‘apply’ legal reasoning and analogies to make visible the space of the Internet. These efforts have moulded a figure of the Internet user and codified their central rights upon entrance into this political space where they might encounter intelligence services directly or indirectly as their data are collected. Why should scholars in Intelligence Studies (IS) be interested in this sociolegal approach that uses human rights, legal practices, and struggles as an

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entry point into illuminating dynamics of intelligence gathering practices? In fact, mass surveillance as practiced and justified by national intelligence agencies are of central interest to IS. As Gill and Pythian note, the Snowden revelations, above all, ‘raised the question of trust’ in state governments and whether they could in fact provide assurances against indiscriminate mass surveillance (2018: 35). Relatedly, the authors highlight the existence of public–private networks of bulk collection and the notion of secrecy at the heart in such intelligence operations. To them, ‘intelligence contests of the 21st century will […] be fought in […] cyberspace’ (ibid.: 35). Their further analysis focuses on state legislation issued in response to these revelations. However, Internet users as potential targets of these practices have been neglected both in this analysis and in socio-legal studies (see Bigo et al. 2013). In proposing to take seriously Internet users as actors important to intelligence practices, I build on Ben Jaffel et al. (2020) who have reconceptualised intelligence as a social phenomenon that stretches out of the immediate core of intelligence agencies and the policymakers supposedly served by it. Dominant theoretical frameworks in IS reproduce a bounded social space in which intelligence takes place, failing to see how diverse empirical sites and actors are shaped by it and shape it in return. Paying attention to intelligence services’ mass surveillance practices and regimes of justification opens up a set of questions which implicates legal actors and practices, such as courts, legislations, and Internet users themselves. Who is able to regulate digital spaces and ensure fundamental rights are respected and upheld? How is the struggle for human rights reconfigured in digital spaces which are colonised by intelligence agencies? And what is the effect on the traditional conflation of territoriality, citizenship, and the state? By exploring a central empirical problem of IS from a thus far neglected perspective, I contribute to explorations in this volume centred on ‘our everyday encounters with intelligence’, bringing to bear alternative theoretical and empirical lenses which shed light on the problem of intelligence by focusing on national legal imaginaries and the transnational transformations they engender. This focus on states themselves might seem like an unexpected move, as previous work has highlighted the role of regional courts and international organisations, authorised to speak on behalf of international law, in pushing for a universal application of human rights on the Internet across state territories (see Guild 2019). This chapter shows how states themselves can be part of this transformation of the citizenship and territoriality conflation, in particular in light of transnational practices of intelligence gathering which do not seem to be inhibited by state boundaries. I will reflect on the reconfiguration of this relationship by analysing, in the following section, three examples of national legislations (the US, Brazil, and Italy), and in the section after that, their transnational effects on human rights on the Internet.

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National Legislations with Transnational Effects? Examples from the United States, Brazil, and Italy This section provides a socio-legal analysis of the transnational effects of three national legislations which have imposed various degrees of regulations on the Internet, empowering certain actors and their rights over others. The case of the US Telecommunications Act highlights how US private actors have become powerful forces in shaping cyberspace on a global scale. The Marco Civil bill in Brazil is an important effort to centre the rights of all Internet users regardless of citizenship. Finally, and relatedly, Italy and its entwinement with EU law will retrace the transnational connections of legal imaginaries which centre on human rights for Internet users. Cyberspace, as this analysis shows, cannot be reduced to a geopolitical space of contest between intelligence agencies, but is the site of important legal contestations over regimes of legal justification of mass surveillance and the making of universal human rights for all Internet users. United States Jurisdiction and Case Law, or How the Internet Became What It Is Today Any analysis of US jurisdiction with regards to the Internet begins with the 1996 US Telecommunications Act which majorly restructured the US telecommunication sector with important international ramifications. The Act envisioned ‘a network of interconnected networks that are composed of complementary components and generally provide both competing and complementary services’ (Economides 1999: 457). The goal was to encourage maximum possible competition and facilitating entry into economic markets. The law initiated legal changes which affected ‘regulation of broadcasting, both radio and television, as well as cable and telephony. Less extensive alterations occur[ed] in satellite and spectrum regulation and in the [Federal Communications Commission’s] own processes’ (Krattenmaker 1996: 3). While the law encompasses a variety of issues, I will focus on its effects on the early Internet. Of particular importance is the addition of a variety of censorship regulations in Title V, entitled ‘Communications Decency Act of 1996’ (CDA). The act aimed at regulating indecent material posted online and possibly shared with minors, while providing protections for providers and users of an interactive computer service in Section 230, an amendment which would become central in shaping the development of the Internet in its current form. As Constance Johnson (1995) noted, prior to the Act, US courts struggled to find a definition of cyberspace and what constitutes ‘online services’. She juxtaposes two examples concerning two early online services where two courts applied existing law in two opposing ways: While one court ruled that Prodigy Services Co. constituted a publisher and ‘therefore can be held responsible for an allegedly libellous statement posted by a subscribed’,

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another court ruled that the online service H&R Block Inc’s CompuServe is merely ‘a passive conduit of information like a library and therefore can’t be held liable’ (ibid.). One user published a defamatory statement against Statton Oakmont’s president on Prodigy’s bulletin board, which led to the lawsuit against Prodigy. In order to support the claim that Prodigy was indeed to be seen as a publisher, Stratton Oakmont presented evidence to the court that showed ‘considerable control over the content of material posted on its service’, which drew on Prodigy’s self-marketisation ‘as a responsible service, [… promoting] family values, [… and exercising] editorial control over bulletin board postings’ (Sheridan 1997: 156). Another central piece of evidence was the content guideline which ‘directed users to refrain from posting messages that were insulting to other Prodigy members’ (ibid.: 157). In response, Prodigy argued that it was not feasible to screen over 60,000 messages per day before they were posted. The court, however, considered Prodigy a publisher and its board leaders as editors. The outcome of this case led Republican Representative Chris Cox (California) and Democratic Representative Ron Wyden (Oregon) to cosponsor legislation, the aforementioned amendment Section 230 of the CDA that would prevent online services from being liable for the material posted, but not from violations of criminal or copyright law (Johnson 1995). The law entitled ‘Protection for private blocking and screening of offensive material’, highlights the crucial role the Internet has played in providing educational and informational resources to US citizens. Sub-section C contains the crucial wording: 1

2

Treatment of Publisher or Speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provider by another information content provider. Civil Liability No provider or user of an interactive computer service shall be held liable on account of A

B

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether such material is constitutionally protected; or any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) (U.S. Code §230).

The anti-decency sections of the CDA, due to their massive censorship potential and violations of the First Amendment, were struck down in a Supreme Court ruling in Reno v. ACLU in 1997 (Klonick 2018). In addition,

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the Supreme Court defined the Internet ‘as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion’ (ACLU v. Reno, 1996). In applying the standards of the CDA – protecting minors from indecent material – it would ‘necessarily reduce the speech available for adults on the medium’ (ibid.). Section 230 was further enshrined and more expansively applied in the Fourth Circuit ruling Zeran v. America Online, Inc. The Court ruled that ‘the section precluded not only strict liability for publishers but also intermediary liability for distributors such as website operators’ (Klonick 2018: 1606). The case was concerned with messages which were posted on the America Online bulletin board in the name of the plaintiff Zeran, offering ‘for sale T-shirts that treated in a most insensitive way the explosion at the Murrah Federal Building in Oklahoma City’ (Sheridan 1997: 162). Despite deleting the messages, they reappeared, and even a local radio station read them out and ‘encouraged listeners to call Zeran and express their displeasure’ (ibid.: 163). Following this, Zeran sued the radio station in early 1996 and AOL in April 1996 for negligence, holding that AOL should be held liable ‘for the distribution of material which they knew or should have known was of a defamatory character’ (ibid.). The Court ruled that AOL, as an interactive computer service and qualifying as a publisher, was immunised from defamation liability under Section 230. For the district court, the key question was to understand ‘the true nature of so-called distributor liability and its relationship to publisher liability’ (Zeran v. America Online, Inc. 1997). To the court, distributor liability constitutes a ‘type of liability for publishing defamatory material’ [my emphasis] (ibid.). The ruling referred to the Prodigy judgement and pointed out how Congress granted immunity to interactive computer services in order to prevent them from refraining ‘from editing or blocking content’ as a result of this judgement. To Klonick, this has been ‘a seminal decision in Internet law not only because it gave broad immunity to online intermediaries but also because of its analysis of the purposes of §230’ (2018: 1607). The central problem that remains for both scholars and the courts, however, is how ‘to strike a balance between ‘users’ First Amendment right to speech [… and] intermediaries’ right to curate platforms’ (ibid.: 1613). Against overly generous readings of §230 and the resulting immunity for companies, scholars such as Danielle Keats Citron and Mary Anne Franks point to the dangers of a lack of protection especially with regards to online hate speech, harassment, bullying, and revenge porn. Citron argues in favour of ‘cyber civil rights’ and both her and Franks advocate in favour of a narrower reading of § 230 (ibid.: 1614). Thus, while US legislation on the early Internet upheld free speech norms, private companies and providers of online services became enshrined as its most powerful actors claiming these rights for themselves under a freemarket logic. In fact, Klonick notes how ‘American free speech norms and

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concerns over censorship became instilled in the speech policies of […] companies’ such as Facebook, YouTube or Twitter (ibid.: 1625). She recites the example of the video ‘Innocence of Muslims’ which was posted on all three platforms in 2012. The video showed Muslims burning Egyptian Christians, before depicting the Prophet Muhammad in a derogatory matter (ibid.: 1624). When violence broke out in Libya and Turkey, YouTube chose to restrict access to it in those countries while keeping the video on its platform. Facebook, too, chose to keep the video on its website as ‘no violative statements against Muslims’ were found. Section 230 has of course played an important role in granting the platforms immunity, but nonetheless some logics of content moderating can be found. At the same time, we note the global reach of these US-based companies which, protected by domestic law, helped shape the Internet through these intertwined freemarket and free-speech logics. According to Christopher Zara, it is through Section 230 that ‘the federal government established the regulatory certainty that has allowed today’s biggest Internet companies to flourish’ (Zara 2017). The human right to free speech, when exercised on US-based online services, is inextricably linked to a paradox which allows free speech only to the extent that it benefits private companies operating on the Internet as a free market. In sum, domestic legislation in the context of the United States has had a powerful transnational effect in shaping the Internet as we know it today, by anchoring its development in the First Amendment and free speech in particular. Far from conceptions of fundamental rights exercised by Internet users themselves, this has resulted in unprecedented protections of private companies and their strategic alliances with government agencies and intelligence services such as the NSA or GCHQ who rely on infrastructures and data collection by private providers (Bauman et al. 2014: 123). A socio-legal analysis of the social conditions of these alliances offers us both a better understanding of public-private partnerships in mass surveillance regimes and the in-built paradoxes in the mobilisation of fundamental rights as a backbone for these practices. Brazil, as I will show, has taken a different way. Brazil’s Internet Bill of Rights: Setting the Stage for Internet Users’ Rights On 23 April 2014, an Internet Bill of Rights came into effect in Brazil (the Marco Civil da Internet). The Bill uses the language of rights and duties in order to define clear principles and guarantees for Internet use in Brazil. I will briefly review the law before broadening my analysis to its sociopolitical and socio-legal context and implications. The law states from the start that the foundations for Internet governance … are based on the respect for freedom of expression and I recognition of the global scale of the network;

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II human rights, individual development, and the exercise of civic awareness through digital media; III pluralism and diversity; IV openness and collaboration; V free enterprise, free competition, and consumer protection; and VI the social purposes of the network (cited in Souza et al. 2017: 8–9). We can discern that Internet governance principles should not be subject to national legislation, but of global reach, closely intertwined with the language of human rights. In addition to respect for human rights principles, the Bill is committed to network neutrality and data protection. The Internet is defined as ‘a system formed by a set of logical protocols, structured on a worldwide scale for unrestricted public use, enabling data communication between terminals through different networks’ (ibid.: 10). The Bill further links Internet access as an essential prerequisite for individuals to exercise their citizenship rights and duties, through the right to privacy and private life, as well as confidentiality of communications amongst others. The content of such private communication may only be exposed or examined under a judicial order. Net neutrality is enshrined as a central principle and defined in Article 9 as: ‘The agent in charge of transmission, switching, and routing must give all data packets equal treatment, regardless of content, origin and destination, service, terminal, or applications’ (ibid.: 14). As the law further states, it applies to operations such as data collection, storage, retention or processing on Brazilian territory, and ‘to the content of communications if at least one of the terminals is located in Brazil’ (ibid.: 16). It further applies ‘to activities conducted by foreign-based legal entities, if they offer services to the Brazilian public or at least one of the members of the legal entities’ economic group has an establishment in Brazil’ (ibid.). Should these rules not be observed, sanctions will be applied as outlined in Article 12, ranging from warnings, fines, temporary suspensions, to prohibition of activities. The law also deals with liability questions and in Article 18 states that ‘Internet connection providers do not have civil liability for damages resulting from content produced by third parties’ (ibid.: 21). As Article 19 states this is to ensure freedom of expression and prevent online censorship. Liability may only apply after a specific judicial order and if ‘the provider fails to take action to make the content identified as offensive unavailable on its service by the stipulated deadline’ (ibid.). If the Internet application provider is able to identify and contact the user who is responsible for the type of content under Article 19, ‘the provider must notify the user for the reasons for removing the content and other information related to its removal, with sufficient detail […]’ (ibid.: 22). What is the broader socio-political and socio-legal context that gave rise to this Bill? To answer this question, I follow this volume’s commitment to study the practices and strategies of central social actors which helps

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illuminate the force of this Bill. One central actor has been Ronaldo Lemos, an academic, lawyer, and specialist on intellectual property, technology, and culture. He is the director of the Institute for Technology & Society of Rio de Janeiro and a professor at Rio de Janeiro State University. Lemos has been working in law firms on various projects with the government around the Internet, a free software programme, digital culture policy, and similar fields. He was one of the central figures around the Bill. As he explains, the Snowden revelations played an immense role in accelerating the process of drafting and passing the Bill as a ‘comprehensive and feasible’ response (2017). The Bill, however, was not the result of a coordinated government response to these revelations but has been long in the making through various civil society groups, based on open dialogue and collaborative effort during an 18-month consultation process in a multistakeholder process. Brazil is the first country to enact such a Bill of rights, following the 25th anniversary of the World Wide Web and ‘[its founder] Sir Tim Berners-Lee’s call for a Magna Charta for the Internet’ (ibid.: 42). This multistakeholder approach has also been enshrined as central in the law and represents the Brazilian position internationally on the issue of Internet governance, as opposed to positions that centre the state government’s role (ibid.: 43). According to Lemos, the Bill also improves ‘current practices of data retention in Brazil’ which had not been defined by law but were based on agreements between law enforcement authorities and service providers. The Bill of rights now makes these practices more transparent. Overall, the entire process took seven years. The context was a ‘draconian cybercrime bill’ that was supposed to be passed in 2007 and the public outcry against it, which would have meant ‘four years in jail for anyone “jailbreaking” a mobile phone, and four years in jail for anyone transferring songs from an iPod back into their computers’ (ibid.: 45). Not only ‘would it have turned millions of Internet users into criminals’ but also stifled innovation and technological progress on the Internet (ibid.). Lemos himself argued in favour of a civil rights framework for Internet governance in Brazil rather than criminal law, and this is how the Internet Bill of Rights term entered the public imagination. The Bill has been central in inspiring other governments to follow suit, pointing to the transnational effects and connections of national legislations on the Internet beyond the singularity of one case. For example, Article 5 of the Brazilian Federal Constitution lists ‘Habeas Data’ as a new judicial remedy (ibid.: 83). This remedy is listed in addition to the protection of privacy as a personality right, information privacy, the Brazilian Consumer Code, and so on. As Viola notes, the Internet Bill of Rights in defining the rights to privacy and data protection as two separate rights follows Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (ibid.: 85). What is more, the Italian government has been in close contact with ‘the Internet Bill of Rights rapporteur, the Brazilian Internet Steering Committee […] as well as the Institute for Technology & Society of Rio de Janeiro (ITS Rio)’ (ibid.: 49).

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This led to its own declaration on Internet Rights in 2015 which will be explored in the next section. Another central actor was Sérgio Branco, a law professor specialising in civil and intellectual law and formerly Attorney in Chief at the National Institute of Technology. He is also one of the co-founders of the ITS Rio. As he notes, the actual passing of the vote was postponed over 20 times due to various questions concerning economic interests, net neutrality and intermediary liability. The Bill was finally signed on 23 April 2014 during the Net-Munidal conference in Sao Paulo which brought together multiple global stakeholders. Scholars Francesca Musiani and Julia Pohle described the conference as ‘perhaps the most prominent and ambitious call in Internet governance history to break the dominance of United States control on Internet infrastructure and to move to the internationalisation and the globalisation of Internet governance to the next level’ (2014: 2). Both scholars point out the multistakeholder model as central in challenging hegemonic discourses and practices in Internet governance centred on governments and governmental policymaking organised around major corporations. The basic approach is to multiply the voices which can speak and be heard in shaping the Internet. This approach, however, is not a radical departure from government-centric governance but, as the two authors point out, a compromise in itself. Other forms of Internet governance could be based on self-regulation ‘by an entirely independent technical and academic community’, building on cyberlibertarian ideas of the Internet, or a neo-liberal vision which is based on total privatisation (favoured by the United States as seen above) (ibid.: 4). Furthermore, the approach does not resolve issues of representation on a global scale, since the overrepresentation of actors from Western developed countries persists, as the authors argue. They also critique the way in which the multistakeholder approach has previously been interpreted and codified at the UN level. How was the multistakeholder statement constructed and what are its capacities, especially in light of the dominance of US legislation and private companies on the Internet? It encompasses over 180 contributions from stakeholders all around the globe. With its non-binding character, it is more of an aspirational declaration but closely related to the Marco Civil as well as its practical approach which has been emulated since in various fora. In setting out its Internet governance principles, it is committed to human rights and the Universal Declaration of Human Rights which ‘should underpin Internet governance principles’, ensuring that people’s rights offline are protected online (2014: 4). In terms of intermediary liability, the statement espouses limitations that ensure ‘economic growth, innovation, creativity and free flow of information’, which would be based on cooperation between all stakeholders in order to deter illegal activity (ibid.: 5). The Internet itself is defined as a ‘globally coherent, interconnected, stable, unfragmented, scalable and accessible network-of-networks’ and as ‘a universal global resource’ (ibid.). In insisting on this imaginary of the Internet

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as one global space through the voices of numerous international stakeholders, these strategies, as led by a Brazilian coalition around the internationalisation of Internet rights, seek to enable possible challenges to US domination over cyberspace. The Brazilian case illustrates an innovative approach to regulating the Internet that centres on human rights for Internet users, challenging the primacy of private companies and a free market logic as espoused by the United States. It seeks to impose sanctions on mass surveillance, which is explicitly addressed as foreign-based legal entities and data collection practices. Finally, in insisting on one global Internet as a universal resource, it pushes towards a transnational understanding and application of its principles through alliances with key stakeholders and other governments. One of them is the case of Italy, entwined with EU law, which I will review in the following. As we will see, a key difference is that the role of intermediaries, which was clearly problematised in the Brazilian Bill in light of intrusive mass surveillance, was no longer closely engaged within the Italian Declaration. Italy’s Declaration of Internet Rights: Enshrining Rights Across Scales More than a year after Brazil’s Bill came to effect, Italy issued a Declaration of Internet Rights in July 2015, explicitly building on existing EU law and international law as universal reference points. The Declaration emerged out of a year-long process and aimed at contributing towards international debates around Internet governance, however, without the intention of being legally enshrined. In the Italian Declaration, the Internet is defined as a ‘global resource [… which] must satisfy the criterion of universality’ (Chamber of Deputies (Italy), 2015: 1). Furthermore, the EU Charter of Fundamental Rights and its article 8 on the protection of personal data serves as a central point of reference for this declaration, as the EU is seen as the ‘world region with the greatest constitutional protection of personal data’ (ibid.). Moreover, the Internet is closely linked to individual and collective processes of political mobilisation for participation in democratic life. As the preamble concludes, the ambition is orientated towards ‘a constitutional foundation for supranational principles and rights’ (ibid.). Article 1 defines fundamental rights as codified in the Universal Declaration of Human Rights, the EU Charter of Fundamental Rights, national constitutions and other international declarations which should all apply on the Internet. Article 4 enshrines the principle of net neutrality, while article 5 stipulates that ‘everyone has the right to access data that concern them’ and that ‘data maybe be collected and processed only with the informed consent of the data subject or on the basis of another legitimate motivation enshrined in law’ (ibid.: 4). The consent must be given via a specific authorisation. Thus, the law adds a somewhat stronger degree of protection of

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personal data while still reserving the right of the courts to authorise data retention. A similar exception based on judicial authorisation is formulated in Article 7 which stipulates the inviolability of electronic systems, devices, and domiciles. I want to focus specifically on the figure of the ‘data subject’ which takes centre stage in this declaration through a set of rights developed from existing EU case law. Article 9 enshrines the right to one’s identity, which ‘regards the free construction of personality and cannot take place without the intervention and the knowledge of the data subject’ (ibid.: 5). This particularly applies to the use of algorithms and probabilistic techniques, giving the data subject the ‘right to oppose the construction and dissemination of profiles regarding him or her’ (ibid.: 5). Article 10 protects anonymity, while restrictions on its exercise can be imposed if it is in the major public interest or necessary, proportional and grounded in law. The right to anonymity is not mentioned in the Brazilian Bill. The right to be forgotten, which concerns ‘the right to obtain the removal from search engines of references to information […] that no longer have public relevance’ is developed in article 11 (ibid.). Article 14 is worth highlighting as it underlines the principles and structure of Internet governance as a whole and ensures that every person has the right to national and international recognition of their rights. Furthermore, it is stated that ‘the Internet requires rules consistent with its universal, supranational scope’ (ibid.: 8). Finally, it suggests a kind of oversight mechanism through the ‘establishment of national and international authorities [as] essential to effectively ensure observance’ of the criteria laid out in the Declaration (ibid.). Similar to the Brazilian context, the drafting of the Declaration espoused a multistakeholder approach and a five-month open online consultation which was open to the public. As Elisabetta Ferrari (2015) notes, a few innovative principles have been introduced or further confirmed such as the right to Internet access, the right to online knowledge and education and net neutrality. She notes that the right to be forgotten as enshrined in the Declaration follows the Court of Justice of the EU ruling on Google Spain, which configured it as the right to be delisted but does not advance the discussions in this ruling further. The case concerned applicant Costeja González about whom an article was published in 1998 in a Spanish newspaper regarding an attachment and garnishment action against him. As the proceedings had been concluded for many years, he argued the newspaper should remove the article (Global Freedom of Expression 2014). After Google failed to comply, a complaint was brought forward before the Spanish Data Protection Agency against the newspaper, Google Spain and Google Inc. The Agency upheld the complaint and argued ‘that because the operators of Internet search engines process personal data, they are subject to relevant privacy legislation and can be under the obligation to remove information that compromises the fundamental right to privacy’ (ibid.). After Google appealed, the National High Court of Spain involved the

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European Court of Justice with a set of questions. These concerned the applicability of EU Directives to foreign companies, whether Internet search engine practices qualified as processing personal data, whether an operator of a search engine is the ‘controller’ processing personal data and finally, whether operators of Internet search engines can be obliged to remove or erase personal information provided by third-party websites in order to protect the right to privacy and other fundamental rights The EU Directive from 24 October 1995 concerned the protection of individuals with regard to the processing of personal data and on the free movement of such data. It obliged member states to ‘protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data’ and the free flow of personal data between member states should not be restricted (1995: 8). The Court based its decision on definitions and provisions in article 2. The article defines ‘personal data’ as ‘information relating to an identified or identifiable natural person (data subject). Furthermore, it outlines processing of data as ‘any operation or set of operations which is performed upon personal data, whether by automatic means’. Finally, the controller is circumscribed as ‘the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data’ (ibid.). The central stakes for Google Spain and Inc. revolved around questions of whether Google’s activities could be labelled as ‘data processing’ and whether it should be viewed as a ‘controller’. In Paragraph 28, the court ruled that search engine practices are indeed ‘processing’ by exploring the internet automatically, constantly and systematically in search of the information which is published there, the operator of a search engine ‘collects’ such data which it subsequently ‘retrieves’, ‘records’ and ‘organises’ within the framework of its indexing programmes, ‘stores’ on its servers and, […] ‘discloses’ and ‘makes available’ to its users in the form of lists of search results. (CJEU, 2014: 10) Furthermore, in classifying Google as ‘a controller’ the Court applied a broad definition of the concept to ensure ‘effective and complete protection of data subjects’ (ibid.). Therefore, as the Court highlighted in paragraph 80, the ‘processing personal data […] by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name’ (ibid.: 17). Paragraph 81, however, balances this assessment with Internet users’ ‘legitimate interest’ ‘in having access to that information’ (ibid.). Therefore, the Court (unsatisfactorily) suggests that ‘a fair balance should be sought in particular between that [public] interest and the data subject’s fundamental rights under Articles 7

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and 8 of the Charter’ (ibid.). Nonetheless, the right of the data subject supersedes those of Internet users as a general rule, unless the data subject plays a significant part in public life so ‘that the interference with his fundamental rights is justified by the preponderant interest of the general public’ (ibid.: 20). Following this judgement, Google formed an Advisory Council on the Right to be Forgotten in order to get a deeper understanding of the balancing act that the Court spelled out between the right to privacy and the public’s interest to access information. The Council consisted of eight individuals from around the EU, ranging from academics, journalists, the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, lawyers, former politicians and representatives of foundations and civil society. For the Council, instead of referring to the right to be forgotten, the judgement is better understood as requiring Google, and other Internet service providers, ‘to remove links return in search results based on an individual’s name’ (2015: 3). They refer to this process as ‘delisting’ whereby the link is still available at the source site ‘but its accessibility to the general public is reduced because search queries against the data subject’s name will not return a link to the source publication’ (ibid.: 4). To the Council, the ruling is part of an ongoing dialogue between the CJEU and the ECtHR, including case law of national higher courts which rule on the relationship between privacy and expression rights (ibid.: 6). In sum, despite some shortcomings this judgement is seen as a major development towards enshrining ‘the right to be forgotten’ as emerging from EU jurisdiction. As Eleni Frantziou states, on one hand the broad construction of the concept of ‘control’ over personal data can now impose obligations from Articles 7 and 8 of the EU Charter of Fundamental Rights on a number of Internet operators beyond Google (2014: 762). On the other hand, the potential conflict between the right to be forgotten and rights such as freedom of expression and access to information raise a number of questions with regards to the overall protection of fundamental rights (ibid.). To Frantziou, the CJEU failed ‘to recognise the structural role of the European Convention on Human Rights (ECHR) and of the Strasbourg Court’s (ECtHR) case law in the development of fundamental rights in the EU’ (ibid.). Furthermore, a central problem of the judgement is its failure ‘to define the reach of the right to be forgotten’ which has ‘important implications for the protection of other fundamental rights’ such as freedom of expression, and also the responsibilities of Internet operators (ibid.: 767). Furthermore, Frantziou criticises the Court’s language of ‘balancing’ between the rights to privacy and public right to information, as opposed to developing a jurisdictional reasoning concerned with the development and full exercise of two valid rights (ibid.: 769). This discussion has consequences for the Italian Declaration. Ferrari (2015) points out that it does not advance any of these issues. Furthermore,

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she also criticises the Declaration’s treatment of anonymity by relying solely on technologies for anonymisation and end-users’ capacity to anonymise, while leaving aside the question of the role of intermediaries with regards to both anonymity and pseudonymity. This lack of close engagement with the role of intermediaries is what sets the Italian Declaration apart from the Brazilian Marco Civil which was clearly concerned with the issue in light of increasingly intrusive surveillance practices. Nonetheless, we should note the international legal sources that underpin the Declaration, as some of the participants who drafted it had previous experience on an international scale with Internet governance. This includes Antonio Palmieri who represented the Italian Parliament during the World Summit on the Information Society in Tunis, 2005, Stefano Trumpy who participated in the Internet Governance Forum in Athens in 2006 and Stefano Rodotá, a law professor, one of the authors of the European Charter of Fundamental Rights, former Chair of the Scientific Committee of the Agency for Fundamental Rights of the EU and the Internet Governance Forum, Italy. His life has been marked by a commitment towards human rights law, Internet rights and data protection. Briefly recalling these international biographical trajectories show how national legislation, even if not (yet) binding, can be closely interlinked with regional and international law developments for a universally accessible Internet with universal rights for all Internet users that can be claimed in cyberspace indiscriminately. What does this mean for territoriality and citizenship as primary referent points for rights?

An Internet of Human Rights: Transforming the Conflation of Territoriality, Citizenship, and the State? Up to this point, I have analysed three national legislations, their politicolegal imaginaries of the Internet with transnational effects and to what extent they have been shaping the emergence of rights of all Internet users. These developments are closely intertwined with, for example, regional court cases (see the final contribution on Internet users in Ben Jaffel et al. 2020), and ongoing reforms at the international scale, such as the UN High Commissioner for Human Rights’ project on the right to privacy in a digital age or reports by the UN special rapporteur on the right to privacy. As we saw, regulating the Internet can be motivated by different political imaginaries and legal principles, from an economic market logic which underlines the rights of private companies to an Internet user-centred logic through the language of human rights. In the Brazilian context specifically, the Snowden disclosures, showcasing just how widespread and intrusive mass surveillance practices are, have been central in shaping these legal and political imaginaries of the Internet as one universal space with universal human rights. Why are these legal fights important to bear in mind for scholars of intelligence practices and mass surveillance? When studying mass surveillance

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conducted by national intelligence agencies, the first intuition is to analyse the impact of legal cases that are explicitly framed around justifying or limiting mass surveillance, such as court cases directly involving the NSA or the UK’s 2016 Investigatory Powers Act which has been challenged at the CJEU (see Gill and Pythian 2018: 115–6). However, if we take seriously the assertion that mass surveillance is a practice that is built on alliances between various private and public actors upon which intelligence agencies rely when collecting data on the Internet, we need to cast our net wider and engage in a socio-legal analysis of intelligence practices that involves a diverse set of actors. Legal limitations through safeguards for Internet users can be enacted if we consider the practices of courts, national legislations and international covenants as entwined in a transnational field of power. A transnational field of power emerges when social links between sites, practices and actors are forged at the cross-roads of so-called international and national sites. Arguing from the perspective of human rights for all Internet users when imposing limits on what private companies can do on the Internet will affect their own room for manoeuvre and the freedoms they have enjoyed as seen in the case of the US legislation. Thus, national legislation on Internet rights and case law regarding Internet users’ fundamental rights which should apply universally are a fruitful entry-point toward studying the imposition of legal limitations on intelligence practices which can potentially affect all Internet users. In this final part, I will reflect more theoretically on the stakes in these debates by disentangling the conflation between citizenship and territoriality which universal human rights for Internet users would eventually entail. In engaging further with Guild’s ‘data citizen’ (2019) and Isin and Ruppert’s ‘digital citizen’ (2015), I want to develop how a focus on national legislation highlights how states themselves can play a role in this transformation, in addition to regional courts and international organisations. In a sense, this transformation is a logical, if slightly delayed, development that follows the transnational character of intelligence services’ mass surveillance practices which are not limited by national boundaries and jurisdiction (Bauman et al. 2014: 125). One central stake is undoing the citizen/foreigner distinction in cyberspace, thus in a sense reformulating the early libertarian imaginaries of freedom through the language of law [see e.g., Barlow’s Declaration of the Independence of Cyberspace (1996)]. But is it also necessarily the most efficient in curbing intelligence services intrusive practices? The Internet user is constituted as an international legal subject regardless of territorial imaginaries which would give rights only to citizens and turn foreigners into free game for intelligence services. The force of human rights law is thus employed to transcend state territoriality. Milanovic (2015) assesses this with reference to the privacy protections in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR),

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whose protections apply extraterritorially and thus cannot use citizenship as a basis to be claimed. The notion of extraterritorial application of the right to privacy was particularly fought over by the United States and the Five Eyes allies at the UN level. In light of this, the UN’s human rights bodies have been leading the cause to clarify that the right to privacy, enshrined both in the ICCPR and the Universal Declaration of Human Rights, indeed applies in the digital age and against intrusive mass surveillance practices. What kind of figure is the Internet user then, facing off intelligence services who collect their data routinely? Isin and Ruppert provide an insightful discussion of the digital citizen as ‘the subject of power in cyberspace’ (2015: 43). Their approach breaks down the separation between being online and offline, cyberspace and ‘real’ space. Moreover, they look at the interconnection between rights claims as codified in the legal sphere, rights claiming as performance and rights claims as part of a broader political imaginary (ibid.). In fact, what makes digital rights claims fascinating is their unbounded nature, traversing ‘national borders and legal orders in unprecedented ways’ (ibid.: 71). This idea of shifting lines and blurred jurisdiction captures the central problem that transnational surveillance poses to the protection of human rights in particular. However, Isin and Ruppert note how studying resistance to this surveillance regime needs to involve more than just the legal sphere. Their digital citizens are involved in various forms of creative activism challenging the powers of big corporations, such as whistleblowers, hackers, and so on. Their at times spectacular acts expose the powerful forces that have colonised cyberspace through geopolitical alliances and disregard for fundamental rights. A commitment to human rights, paired with political will and universal aspirations, can interrupt the logics of the geopolitical imaginary centred on state territoriality and national security, which is often invoked in court cases that seek to balance freedom with ‘legitimate’ concerns for national security. For example, a Privacy International case from 2017 at the CJEU challenged ‘the acquisition, use, retention, disclosure, storage and deletion of bulk personal datasets (BPDs) and bulk communications data (BCDs) by the UK Security and Intelligence Agencies (SIAs)’ (Privacy international, 2020). Privacy International argued that the regime was unlawful as it failed to provide adequate safeguards as identified in previous CJEU judgements. The Court held in its judgement on 6 October 2020 that mass data retention and collection practices for purposes of safeguarding national security undertaken by EU member states must comply with EU law and its privacy safeguards. At the same time, in addition to this constantly shifting balancing act between national security and freedom, the Internet user should be transformed from a data subject into a data citizen, as Guild (2019) argues. Data citizens’ rights are not granted by the state but are firmly enshrined in international law and thus overcome the limitations of state jurisdiction in

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providing adequate protection. In fact, as we have seen through various examples in this chapter, there is already a field of struggle in the making which is located exactly at this intersection of national and international law, recognising the transnational effects of legislation around the Internet and human rights, but also states’ own obligations in signed treaties such as the ICCPR or the ECHR. These are ongoing, if slow contestations and shifting boundaries, specifically when considering developments in the legal field. Nonetheless, in the study of intelligence practices and possibilities for resistance against intelligence services’ intrusions, socio-legal analyses of these legal practices and developments can shed light on the boundaries of intelligence agencies scope for action in the digital space.

Conclusion This chapter proposed a socio-legal analysis of intelligence practices and the enactment of boundaries on intelligence services’ scope for action on the Internet. I focused on three different national legislations (the United States, Brazil, and Italy with the EU) and their transnational effects in the creation of the Internet as a one universal legal, economic and political space. In the United States, the Telecommunications Act and Section 230 (1996) in particular conceded a big set of rights to private companies, while the centrality of American free speech legislation has laid the foundations for the rise and hegemony of big companies like Facebook, YouTube or twitter. The Brazilian Internet Bill of Rights has shifted this economic language and private actor-centric focus to Internet users and their rights themselves, emphasising the right to privacy and net neutrality as central principles. It also drew from privacy legislation in the EU, pointing to transnational connections between privacy protection regimes. Third, I analysed a non-binding declaration from Italy, its similar commitment to human rights and net neutrality as in Brazil and its connections with EU law and cases, such as the development of the right to be forgotten. The final part synthesised what these legal developments mean for the disentanglement of territoriality, citizenship and the state. Figures such as the ‘digital citizen’ or the ‘data citizen’ offer new conceptual toolkits to describe the emergence of a rights-bearing subject on the Internet whose protections, for example, vis-à-vis intelligence agencies do not end once they leave their state territory. This socio-legal analysis provides a different view on intelligence studies and services, helping to visualise central fights and the making of boundaries in a legal field of struggle to regulate the Internet and enshrine universal human rights for all Internet users. This sociolegal perspective opens up a new research agenda for scholars of intelligence practices who seek to uncover the role of legal fights in limiting or justifying mass surveillance. As I have shown, Internet users’ human rights offer one specific entry point into visualising these shifting frontlines and alliances.

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Note 1 See also the Introduction chapter in this volume.

References American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996). Available at: https://law.justia.com/cases/federal/district-courts/FSupp/929/824/1812782/ Barlow, John Perry. 1996. ‘A Declaration of the Independence of Cyberspace’. Electronic Frontier Foundation. Available at: https://www.eff.org/cyberspace-independence Bauman, Zygmunt, Didier Bigo, Paulo Esteves, Elspeth Guild, Vivienne Jabri, David Lyon, and R. B. J. Walker. 2014. ‘After Snowden: Rethinking the Impact of Surveillance’. International Political Sociology 8 (2): 121–144. Ben Jaffel, Hager, Alvina Hoffmann, Oliver Kearns, and Sebastian Larsson. 2020. ‘Collective Discussion: Toward Critical Approaches to Intelligence as a Social Phenomenon’. International Political Sociology 14 (3): 323–344. Bigo, Didier, Sergio, Carrera, Nicholas, Hernanz, Julien, Jeandesboz, Joanna, Parkin, Francesco, Ragazzi, and Amandine, Scherrer. 2013. ‘Mass Surveillance of Personal Data by EU Member States and its Compatibility with EU Law’. CEPS Papers in LIBERTY and SECURITY in Europe. Chamber of Deputies (Italy). 2015. ‘Declaration of Internet Rights’. Available at: https://www.camera.it/application/xmanager/projects/leg17/commissione_internet/ testo_definitivo_inglese.pdf Chander, Anupam, and Uyen P. Le. 2015. ‘Data Nationalism’. Emory Law Journal 64 (3): 677–739. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Economides, Nicholas. 1999. ‘The Telecommunications Act of 1996 and Its Impact’. Japan and the World Economy 11 (4): 455–483. Ferrari, Elisabetta. 2015. ‘Italy Issues a Declaration of Internet Rights – Now Let’s Improve It’. CGCS Media Wire. Available at: https://web.archive.org/web/ 20180708224756/http://global.asc.upenn.edu/italy-issues-a-declaration-of-internetrights-now-lets-improve-it/ Frantziou, Eleni. 2014. ‘Further Developments in the Right to be Forgotten: The European Court of Justice’s Judgment in Case C-131/12, Google Spain, SL, Google Inc v Agencia Española de Protección de Datos’. Human Rights Law Review 14: 761–777. Gill, Peter, and Mark Pythian. 2018. Intelligence in an Insecure World (3rd edition). Cambridge and Medford: Polity Press. Global Freedom of Expression. 2014. ‘Google Spain SL v. Agencia Española de Protección de Datos’. Available at: https://globalfreedomofexpression.columbia. edu/cases/google-spain-sl-v-agencia-espanola-de-proteccion-de-datos-aepd/ Google. 2015. ‘The Advisory Council to Google on the Right to be Forgotten’. Available at: https://static.googleusercontent.com/media/archive.google.com/en// advisorycouncil/advisement/advisory-report.pdf Guild, Elspeth. 2014. ‘What Does Mass Surveillance Do to Human Rights?’ Open Democracy. Available at: https://www.opendemocracy.net/can-europe-make-it/ elspeth-guild/what-does-mass-surveillance-do-to-human-rights

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Guild, Elspeth. 2019. ‘Data Rights: Claiming Privacy Rights Through International Institutions’. In Didier Bigo, Engin Isin, and Evelyn Ruppert, eds. Data Politics: Worlds, Subjects, Rights. London: Routledge. Isin, Engin, and Evelyn Ruppert. 2015. Being Digital Citizens. London and New York: Rowman & Littlefield International. Johnson, Constance. 1995. ‘On-Line: Courts Struggle with Definition of Cyberspace’. Wall Street Journal, 27 July. Judgment of 13 May 2014, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González C-131/12. Judgment of 6 October 2020, Privacy International v Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service, Secret Intelligence Service C-623/17. Klonick, Kate. 2018. ‘The New Governors: The People, Rules, and Processes Governing Online Speech’. Harvard Law Review 131: 1598–1670. Krattenmaker, Thomas G. 1996. ‘The Telecommunications Act of 1996’. Federal Communications Law Journal 49 (1): 1–49. Milanovic, Marko. 2015. ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’. Harvard International Law Journal 56 (1): 81–146. Musiani, Francesca, and Julia Pohle. 2014. ‘NETmundial: Only a Landmark Event if ‘Digital Cold War’ Rhetoric Abandoned’. Internet Policy Review 3 (1). Privacy International. 2020. ‘CJEU Bulk Challenge’. Available at: https:// privacyinternational.org/legal-action/cjeu-bulk-challenge. Rosenzweig, Roy. 1998. ‘Wizards, Bureaucrats, Warriors, and Hackers: Writing the History of the Internet’. The American Historical Review 103 (5): 1530–1552. Sheridan, David R. 1997. ‘Zeran v. AOL and the Effect of Section 230 of The Communications Decency Act Upon Liability for Defamation on the Internet’. Albany Law Review 61: 147–179. Souza, Carloes Affonso, Mario Viola, and Ronaldo Lemos, eds. 2017. Brazil’s Internet Bill of Rights: A Closer Look. Institute for Technology and Society of Rio de Janeiro. UN General Assembly. 2013a. ‘Statement by H. E. Dilma Rousseff, President of the Federative Republic of Brazil, at the opening if the general debate of the 68th session of the United Nations General Assembly’. 24 September 2013. Available at: https://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf UN General Assembly. 2013b. ‘Third Committee Approves Text Titled ‘Right to Privacy in the Digital Age’, as It Takes Action on 18 Draft Resolutions’. Meetings Coverage and Press Releases. Available at: https://www.un.org/press/en/2013/ gashc4094.doc.htm. U.S. Code Title 47 – Telecommunications. 1996. ‘§230 – ‘Protection for private blocking and screening of offensive material’. Zara, Christopher. 2017. ‘The Most Important Law in Tech Has a Problem – How “safe harbor” turned into a protector of privilege’. Wired. Available at: https://www. wired.com/2017/01/the-most-important-law-in-tech-has-a-problem/#.jd3jjzx3d Zeran v. American Online, Inc., 958 F. Supp. 1124 (E.D. Va. 1997). Available at: https://law.justia.com/cases/federal/district-courts/FSupp/958/1124/1881560/

10 After Cambridge Analytica: Rethinking Surveillance in the Age of (Com)Modification Håvard Markussen

Introduction In their influential article on the development of contemporary surveillance and intelligence titled After Snowden: Rethinking the Impact of Surveillance, Bauman et al. (2014) compellingly contend that the Snowden case1 forces us to fundamentally rethink what surveillance and intelligence might mean as social and political forces and phenomena. More specifically, they argue that the uncurtaining of intelligence services’ surveillance programmes and especially their extensive cooperation with private companies, confirm ‘long-term transformations in the politics of states […] and even concepts of subjectivity’ and signal ‘historical shifts in the locus and character of sovereign authority’ (Bauman et al. 2014, p. 122). The Snowden-leaks, they might just as well have said, changed everything, and as such, inevitably presented a colossal conceptual challenge to the academic study of surveillance and intelligence. What, for instance, does it mean to speak about the security of the nation-state when the methods for securing the liberal subject is demonstrably anti-liberal? How can we make sense of state authority and citizenship in a time when boundaries between the inside and outside of the sovereign state, and between the private and public sphere, are blurred by novel surveillance and intelligence practices? What, in short, is politics if ubiquitous surveillance and intrusive intelligence is becoming utterly normalised? This problematisation and these questions are obviously still highly relevant and in need of further probing: we are still very much in the ‘After Snowden’ era of surveillance, intelligence and (inter)national politics. This is demonstrated well in Ben Jaffel et al. (2020) (and the introductory chapter to this volume), as they explicitly locate their interventions in a post-Snowden context and view their exploration of intelligence as a social phenomenon as more or less a direct response to Snowden’s break with the ‘dominant ontology of intelligence work’ (ibid., p. 324). Nonetheless, I propose in this chapter that we are now, almost a decade after Edward Snowden first appeared on our screens to blow his whistle, not merely in the ‘After Snowden’ era. We are also, and arguably more importantly, in the ‘After Cambridge Analytica’ era, as a fresher scandal, another whistleblower and new DOI: 10.4324/9781003205463-13

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dramatic revelations have, much like the Snowden-leaks, offered to change everything and raise new colossal conceptual challenges to the study of surveillance and intelligence. The Cambridge Analytica scandal is the story of how a private company, Cambridge Analytica, was given access to the personal Facebook data of millions and millions of users, and, hired by various political campaigns used these data to predict and modify individual voter behaviour and ultimately flip election results (Illing 2018). In the spring of 2018, British broadcaster Channel 4 News screened an undercover interview with Cambridge Analytica CEO Alexander Nix, where he admitted to, or more precisely boasted over, having used data, among a series of dubious techniques including bribery and blackmail, to sway elections in more than 200 cases worldwide (Channel 4 News 2018a, 2018b). Soon after, the Guardian published a lengthy interview with the former director of research at Cambridge Analytica, Christopher Wylie, in which he blew the whistle on the company’s role in the Trump and Brexit campaigns, in particular, describing how they used Facebook data to build models ‘to exploit what we knew about them [the users] and target their inner demons’ (quoted in Cadwalladr 2018). By showing in detail how personal user data is commodified and used to predict and modify behaviour – political and otherwise – Cambridge Analytica introduced to public and political debates what has become popularly known as surveillance capitalism: a ‘novel commercial project’, a new logic of accumulation, that treats ‘every aspect of every human’s experience’ as ‘free raw material for translation into behavioural data’, and that has ‘discovered that the most-predictive behavioural data come from intervening in the state of play’ and as such uses ‘automated machine processes’ to ‘not only know our behaviour but also shape our behaviour at scale’ (Zuboff 2019, pp. 7–9). Of course, variations of surveillance capitalism have been researched expertly and extensively for a long time (e.g., Andrejevic 2013; Harcourt 2015; Han 2017) and has naturally been discussed thoroughly in surveillance studies (e.g., Murakami Wood and Ball 2013; Lyon 2019; Murakami Wood and Monahan 2019), but also mobilised to great effect in (critical) security studies and (international) political sociology (e.g., de Goede 2008; Aradau and Blanke 2016). Therefore, my aim here is not to point to practices for prediction and modification of behaviour as if that is something new. Rather, I want to mobilise work on surveillance capitalism in order to suggest that from a surveillance and intelligence perspective the introduction of what I call (com)modification practices marks a sharper departure from traditional practices, including those revealed by the Snowden-leaks and addressed by Bauman et al. (2014), than what it is often given credit for. This is in short not only because it manifests the ever-increasing liquidity of surveillance (Lyon 2019, p. 65), but because it introduces a new logic of operation for mass surveillance and intelligence gathering, as these gravitate

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from being primarily enterprises of watching that looks for suspicious and potentially dangerous behaviour, to being enterprises of modification that looks for, and crucially creates profitable behaviour. In a way, the distinction between watching and modification is not entirely new to Intelligence Studies (IS), where it is typically marked by a difference in intelligence disciplines. On the one hand, signals intelligence (SIGINT) that captures human or electronic communication signals is associated with the practice of watching (see e.g., Lasoen 2019; Lomas and Murphy 2019, chap. 1.2; Aid 2020), while on the other, human intelligence (HUMINT), for instance with the use of embedded double agents and methods such as infiltration, honey-trapping and blackmailing, is associated with modification or even manipulation and coercion (see e.g., Sano 2015; Albanese 2017; Lomas and Murphy 2019, Chap. 1.1). Although signals intelligence gathers information based on which the state can act, human intelligence, which is of course used for collecting actionable information as well (see Wippl 2020), also seeks to actively interfere in the state of play. But, conventional IS is too often functionalist and state-centric in orientation (Ben Jaffel et al. 2020; Bigo, this volume), and as such, fails to take seriously how practices of modification differ qualitatively from practices of watching in terms of how they affect their targets and also to engage sufficiently with recent accelerations in the privatisation and commercialisation of intelligence. Moreover, what contemporary developments in surveillance practices, and especially the emergence of surveillance capitalism, show, is that SIGINT, now also in the hands of and often premised by private technology companies, is increasingly being used for modification as well. And not only that: it is being used for modification at a scale that reaches far beyond, and for purposes that differ drastically from, that of human intelligence. Surveillance and intelligence ‘After Cambridge Analytica’, then, is no mere continuation or intensification of surveillance and intelligence ‘After Snowden’, nor a perpetuation of traditional HUMINT-practices, but instead a distinct form of transversal political and social practice. Thus, post-Cambridge Analytica surveillance and intelligence also offer to alter the very conditions for political subjectivity and political governance in broader terms (see Madsen et al. 2016, p. 276). Specifically, I contend that the gravitational shift in mass surveillance practices from watching to modification inevitably changes what it means to be (un)free and aspiringly autonomous from mass surveillance in particular and from controlling, sovereign, power in general. Although the practice of watching constitutes a threat to privacy and as such the freedom to not be seen, the practice of modification constitutes a threat to agency and as such the freedom to not be influenced or actively coerced. This might seem trivial, but, as I will develop in more detail later, it is significant because privacy implies spatial freedom whereas agency implies temporal freedom, and as such, offers to rearrange the coordinates of political subjectivity.

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The next section looks at recent developments in the surveillance studies literature to elaborate on this point, before I move on to a historicalbiographical analysis of the two whistleblowers’, Edward Snowden and Christopher Wylie, memoirs. This is in order to explore further and hopefully illustrate the need to treat the post-Cambridge Analytica era of surveillance and intelligence as distinct from the post-Snowden era. In short, I find that in both cases the political subject is produced, but in different ways, through the tension between concerns for privacy and agency and as such through the tension between spatial and temporal modes of being. Whereas Snowden privileges privacy in his understanding of freedom and in large part reproduces a sovereign, spatialised subject, Wylie offers a break with such modern understandings of subjectivity as he, however mildly, suggests that the surveilled political subject is steered and hindered primarily in time.

From Watching to Modification: Surveillance Practices Transformed This section engages with the surveillance studies literature in showing how intelligence and mass surveillance are currently changing from being enterprises of watching to become, at their core, enterprises of modification. First, I discuss how mass surveillance has traditionally been understood as a practice watching and relatedly a threat to freedom as privacy, and second, how recent literature on surveillance capitalism offers a different understanding, where mass surveillance is primarily a practice of modification and thus a threat to freedom as agency. As such, the section will serve to demonstrate the need for IS and surveillance studies to take seriously the unique conceptual challenges raised by the Cambridge Analytica scandal, since it was precisely details of (com)modification-practices that it revealed. Practices of Watching and the Threat to Privacy Overwhelmingly, the critical study of mass surveillance and intelligence gathering that has advanced from the rationalist and functionalist approaches of conventional IS (see Ben Jaffel et al. 2020 for an overview) is concerned with practices and effects of watching. Here, the Foucauldian legacy looms large. Although Surveillance Studies scholars have made efforts to move past panopticism (Mathiesen 1997; Haggerty 2006) the basic assumption that surveillance is harmful because the internalisation of the surveilling gaze has disciplinary effects on individual behaviour, and in Greg Elmer’s (2012, p. 124) words performs a type of ‘subtle coercion’, is still highly influential. Especially after 9/11 and with increased force after Snowden, critical scholars have also discussed how the recent change in the practice of watching, where big data analytics and the ability to observe everyone and look for the needle in the haystack (Lyon 2014, p. 9; Richards 2020)

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produces the subject as a priori suspicious (Bauman et al. 2014, p. 122). Moreover, they have addressed how this change in the practice of watching disciplines behaviour by causing ‘chilling effects’ (Manokha 2018, p. 221), and how it, despite promises of neutrality, facilitates ethnic, religious and racial discrimination (Patel 2012). Others still, have concentrated more specifically on the introduction of the algorithmic gaze, and how computational and automated watching and identification of suspicion or potential danger produces a surveillance subject that is different from that produced by human intelligence. One good example is Aradau and Blanke (2018), who argue that the increasingly customary algorithmic production of anomaly introduces a new logic of othering and governing of the other, where ‘dots’ and ‘temporal spikes’ replace the more dynamic construction of risk and enmity, in turn causing the ‘transformation of difference into dangerous otherness’ (ibid., 20) and accordingly the normalisation of a novel, and arguably more aggressive type of discrimination. With this focus on the (changing) practice of watching, then, comes the concern for privacy; for naturally, it is through the protection of privacy rights – the subject’s capacity to remain hidden and unseen – that we can protect the subject from the violence of excessive surveillance and intelligence. Put differently, it follows naturally from the assumption that surveillance is harmful and curtails liberty because of the direct and indirect effects of watching, that freedom from surveillance is to be private; it is to not be watched. First of all, this comes through in public and political debates, where matters of surveillance and intelligence are routinely and indeed commonsensically framed as issues of privacy – consider for instance how COVID-19 contact tracing apps are intuitively represented as a potential threat to privacy (e.g., Perrigo 2020) – but also in the academic literature. Bauman et al. (2014, pp. 131–133) illustrate this well, as they, while proclaiming and clearly demonstrating that surveillance today is more than a privacy problem, consistently refer to the liberty and even human right that is under pressure as namely privacy, and as such, they too seem to take for granted and reaffirm the arguably doxic assumption that freedom in the context of surveillance and intelligence is freedom from watching, i.e., privacy. Much is at stake in reproducing this assumption, because it keeps us from seeing other ways in which surveillance makes us (un)free, and perhaps from realising the distinctiveness and full consequences of the threat that mass surveillance poses to individual freedom and autonomy today. In particular, this has to do with how the assumption ‘freedom as privacy’ constructs the political subject as a predominantly spatial being, seeing as privacy is in essence a spatial liberty, or furthers a spatial conception of freedom. For when describing privacy in the everyday and when discussing it in the public debate, we routinely refer to it as a bubble, a zone, a realm, or simply a space, and intuitively express its breach via metaphors like invasion, intrusion and violation (Bennett 2011, p. 485). Consider for instance how one op-ed recently

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likened Facebook’s new group chat service, Messenger Rooms, to a ‘window into your intimate relationship’ as if privacy is a walled and windowed physical space (Biddle 2020), while another described new location-tracking technology as ‘invasive’ and alluded to how the use of smartphones, following us everywhere and thus performing the function of ankle monitors, makes it difficult to find private spaces anywhere (The New York Times 2020). The surveillance subject, then, is free from sovereign surveilling power to the extent that it can move freely in space; it becomes, through contemporary discourses and practices of surveillance and intelligence, a spatial being. Importantly, though, as Alvina Hoffmann (in this volume) shows us, space in this context does not mean territory. Rather, by insisting on the sanctity of privacy in cyberspaces too, the struggle for privacy rights as human rights disentangles the citizen (now a data-, or digital citizen) from state and territory, effectively breaking with conventional and persistent geopolitical imaginaries based on the national security-axiom that is engrained in traditional IS as well. Creating another opening for alternative interpretations of surveillance subjectivity Bauman et al. (2014) are admittedly sensitive to the way in which the market intrudes on and to a certain extent transforms surveillance and intelligence post-Snowden. For instance, they claim that the Snowdenleaks reveal ‘a general shift to the market rather than state law as the ultimate measure of political and ethical value’. Moreover, they (p. 124) take this move towards the market to mean that surveillance and intelligence are phenomena increasingly less organised according to territorial lines seeing as they now ‘perplexingly’ take the shape of ‘relations, lines of flight, networks, integrations and disintegrations, spatiotemporal contractions and accelerations’. They also stress that this shift offers to transform the subject of surveillance from a suspicious and potentially harmful subject to a useful or valuable subject, one ‘whose communicative practices are […] understood in terms of utility, at some point in the future’ (p. 138). As such, Bauman et al. (2014) begin to address the (com)modification of behaviour as a novel operational logic of surveillance and intelligence and open up for a line of enquiry that takes seriously the increasingly commercial drive behind these phenomena and their impact on social and political life. Practices of Modification and the Threat to Agency Also taking seriously the increasingly commercial drive behind contemporary surveillance and intelligence, but with more conviction and a clearer sense of direction than Bauman et al.’s (ibid.) rather open enquiry, is the vast literature on variations of surveillance capitalism that turns its attention away from the effects of watching itself in order to concentrate on how the intelligence information gained from watching is used for prediction and modification. In security studies and related (sub)fields, scholars have typically been preoccupied with the emergence of automated surveillance

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and algorithmic governance, and how it can be used for predictive policing and pre-emptive security (see e.g., de Goede 2008; Benbouzid 2019). Advancing on this, though, scholars from outside of directly securityrelated fields have also pointed to how prediction enables the modification of behaviour; how the capacity to predict the future makes it possible to intervene in behavioural patterns and this way steer individual action towards a certain profitable outcome. Shoshana Zuboff (2019), who coined the term surveillance capitalism, explains how predictions of likely future behaviour are used as a basis for intervention in everyday behaviour, and that these ‘interventions are designed to enhance certainty by doing things’ (p. 202). They ‘nudge, tune, herd, manipulate, and modify behaviour in specific directions’ she continues, ‘by executing actions as subtle as inserting a specific phrase into your Facebook news feed, timing the appearance of a BUY button on your phone, or shutting down your car engine when an insurance payment is late’ (ibid.). Such active intervention is what Karen Yeung (2017) calls ‘hyper-nudging’: incredibly forceful pushes and pulls that due to the pervasive, networked all-knowing quality of big data analytics can effectively steer commercial behaviour. Mark Andrejevic (2013, p. 57) similarly makes the case that algorithmic predictions can be used to adjust behaviour in real-time by ‘intervening pre-emptively’ and thus modulate the future. In the same vein, but more attentive to how such modulation functions as a form of control, Byung-Chul Han (2017) argues that big tech companies govern through positive engagement and stimuli. It ‘banks on freedom’ (p. 46) he holds, and uses the subject’s very feeling of freedom, and as such, its voluntary and even enthusiastic and passionate submission as the source of its control (p. 14, 39). Symbolically governing and curtailing freedom through the Like-button (p. 15), then, mass surveillance takes the shape of ‘Friendly Big Brother’ and perfects Orwellian or even panoptic discipline by steering the future with a friendly face, replacing prohibition and repression with permission and projection (pp. 37–39): it governs through a ‘superabundance of positivity’ (p. 38), or in Baudrillard’s terms, ‘operates hyperpositively’ (quoted in Han 2015, p. 5). Bernard Harcourt similarly argues that digital technology makes us ‘slaves to […] our desires for shares, clicks, friends and likes’. If a tad dystopian, these arguments nonetheless highlight the changing character of intelligence gathering; how it is increasingly entangled with commercial mass surveillance practices and the extent to which it requires routinised, mundane, and typically voluntary and positively loaded participation. What these scholars also imply, and sometimes say outright, is that surveillance and intelligence is a threat to agency as well as, and perhaps more important than, privacy. Privacy, on this account, appears as a sort of safeguard, a right and liberty that must be secured in order for the subject to be free from modification, whereas agency, i.e., the freedom to move and act independently and autonomously, is the true victim; the freedom that the subject ultimately stands to lose if privacy is lost. Zuboff (2019) makes a

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clear case for this when she states that ‘these operations challenge our elemental right to the future tense, which is the right to act free of the influence’ (p. 195, emphasis in original), and in her argument that surveillance capitalism inevitably assaults ‘individual agency and personal autonomy’ (p. 54). Similarly, Han (2017, p. 12) concludes that the emergence of (com)modification signals ‘end of the person who possesses free will’. Through this governing through freedom, moreover, that is characteristic of neoliberalism in general (Dufour 2008, pp. 6, 155; Strand 2019, pp. 59, 69–70) and accelerated and intensified under surveillance capitalism (Han 2017; Zuboff 2019, pp. 37–41) the clear distinction between present and future time is blurred. Zuboff (2019) gestures towards this point when she writes that surveillance capitalists ‘make the future for the sake of predicting it’ (p. 203) and argues that big tech furthers an ‘ideology of inevitabilism’ hoping to make the future completely anticipatable through ubiquitous computation (p. 222). Andrejevic (2013, p. 57) states this in perhaps even clearer terms as he argues that (com)modification ‘integrates possible futures into present behaviour’. This way, we can see that the gravitational shift from watching to modification and from threats to privacy to threats to agency implies that surveillance and intelligence are increasingly hindering the subject’s movement in time as opposed to space, and as such, that it produces a political being whose action and movement is increasingly located and oriented in time. For whereas privacy is a spatial liberty, agency is distinctly temporal; it enables the subject to move freely and independently in time, and as such allows it to maintain a stake in its own future (Emirbayer and Mische 1998). As Andrejevic et al. (2020, pp. 1538–1539) write, agency is ‘informed by the past, focused on the present, and oriented towards the future’. Thus, when surveillance capitalist practices of prediction and modification move the future into the present by steering behaviour, it also threatens the subject’s very capacity to move (un)freely and (in)securely in time and accordingly puts persistent accounts of modern sovereign, autonomous subjectivity under significant pressure. This is what the Cambridge Analytica scandal alerts us to the way in which contemporary surveillance and intelligence offer to reconstitute the political subject by rearranging the coordinates of its spatiotemporal being. As demonstrated here, many have, both before and after Cambridge Analytica, explored and theorised practices of prediction and modification, and yet, the equalling of freedom from surveillance with privacy still appears to enjoy a dominant, arguably doxic, position in public, political and academic discourse. This is very clear in critical post-Snowden studies of surveillance and intelligence, but also to some extent in the surveillance capitalism-scholarship. Zuboff (2019) for instance seems just as concerned with privacy and ‘the right to sanctuary’ as with agency and the ‘right to the future tense’ (p. 54), and Han (2017, p. 11) also worries that ‘the very idea of protecting privacy is becoming obsolete’ when raising alarm over the loss of

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free will. The crux of both of their arguments, though, is undoubtedly the novelty of modification practices and the production and creation of certain and profitable futures at the expense of individual autonomy. By putting these dynamics and indeed this new form of neoliberal violence on display, the Cambridge Analytica scandal should encourage more critical engagement with practices of modification and threats to agency as distinct from practices of watching and threats to privacy, and accordingly, closer and more focused interrogations of how this shift might impact the ways in which surveillance and intelligence function as transversal, cross-cutting political and social forces. In the next section, I begin to do this by examining the difference between the surveilled, political subjectivity produced in the Snowden and Cambridge Analytica cases, and this way, illustrate the importance of seeing surveillance and intelligence today as surveillance and intelligence ‘After Cambridge Analytica’.

From Snowden to Cambridge Analytica: Surveillance Subjectivity Transformed In order to explore further how this shift in surveillance practices from watching to modification might reconstitute surveillance subjectivity, this section will look at the Snowden revelations and the Cambridge Analytica scandal in order to explore how differences in emphasis on watching/modification and privacy/agency that we can expect to be manifest between the two cases, might indicate the production of different subjectivities. I will concentrate this brief analysis on the memoirs of the two whistleblowers, Edward Snowden’s Permanent Record, and Chris Wylie’s Mindf*ck, both published in 2019. This is in order to explore how two tech-savvy and politically self-aware young men and former practitioners at the centre of the storm and hyper-conscious of the surveillance they are under, understand and situate themselves as subjects in relation to mass surveillance and/of the state. Moreover, as whistleblowers, they are both authoritative sources, and have both, because they spoke out early and with a certain gusto, enjoyed the privilege of setting the tone and agenda for the ensuing debates. The following analysis is thus also a manifestation of the multitude of actors now involved in intelligence (Ben Jaffel et al. 2020), as it shows how IT professionals, and even political consultants and cultural trend forecasters in Wylie’s case, increasingly take central positions in the field and arguably emerge as its most important figures. This way, I follow the tradition of conventional IS of studying memoirs and biographies in order to access classified of secret information (Jackson and Scott 2004, p. 145; see Reynolds 2005 for an example). Importantly, though, I view these works not as factual presentations and accurate accounts, but as works of literature. More specifically employing a historicalbiographical approach to literary criticism, I am interested in how the memoirs might reflect the life and times of their authors (Guerin et al. 2005,

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pp. 51, 56–57), but also, by combining this approach with insights from critical surveillance studies, in how they understand, represent and produce the political subject in relation to surveillance and intelligence. As such, it is not Snowden and Wylie themselves that are of interest, but rather what their autobiographical statements can teach us about the historical conditions and political effects of their utterance. Snowden, as is well known, stole and leaked classified information from the American National Security Agency (NSA) in the summer of 2013, that detailed the US government’s unlawful, and according to Snowden unconstitutional, surveillance of its own citizens. Among the many shockinducing revelations was the institutionalised cooperation between the NSA and big tech companies, who assisted the government agency in gathering data (Greenwald and MacAskill 2013). Wylie, on the other hand, came forward in the spring of 2018 to tell the story of how the private company that he had worked for, Cambridge Analytica, had illegally obtained Facebook data that it used to target messaging at persuadable voters for the Brexit- and Trump-campaigns among others, with the aim of manipulating election results by polarising and even radicalising segments of the population (Cadwalladr 2018; Cadwalladr and Graham-Harrison 2018). Edward Snowden’s Permanent Record In Permanent Record (2019), Snowden is, perhaps unsurprisingly, primarily concerned with government surveillance, and not so much with corporate surveillance. He tells the story of how he, as a practitioner in and even an architect of the government’s surveillance regime, came to realise that the practices of this regime were wrong, so much so that he deemed it necessary to take it upon himself to share his realisation with the rest of the world. Of course, his act of leaking classified information to journalists was, and still is, considered an act of treason by his government. Yet, Snowden insists that this government is acting in conflict with its constitution by executing a practice of watching that is too invasive, and that as a result, his crime is justified. This sentiment, and his seemingly unshakeable conviction that what he did was right both morally and legally, runs like a red thread through the memoir as it in large part takes the shape of a defence of his lifedefining act. It is nicely captured by the book’s opening line: ‘My Name is Edward Joseph Snowden. I used to work for the government, but now I work for the public’ (p. 1). Intriguingly, this compelling storyline not only stages Snowden’s personal drama, but also, and in spite of being a story of rebellion against the state, reaffirms the state’s position as the legitimate surveilling authority, and, as I will get back to, displays mass surveillance primarily as a practice of watching and disciplining. By grounding his rebellion against the state in strong patriotism, and his unwavering commitment to the liberties that the constitution promises, he also grounds it in the cause for saving the state

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from itself, or more precisely saving the current version of the state from its real self; the increasingly totalitarian surveillance state of today, which he likens to China (p. 171), from the freedom-loving and exceptionally liberal America of yore. This way, through his reference to the constitution (pp. 3, 228–229), but also by almost exclusively directing his criticism at the NSA and current political administrations (pp. 169, 173, 223–229, 276, 327), Snowden holds the sitting government responsible. Instead of criticising the NSA and the security regime it is a part of as such, he specifically criticises the US government at the beginning of the 21st century: the actions of this particular state at this particular time. His leap to start working for the public instead of the government, then, seems to imply the view that the government should get its act together and do the same. While concentrating on state surveillance and government accountability, moreover, Snowden expressively addresses the role of big tech in the development of mass surveillance as well. Tellingly, he does so mostly by elaborating on the way in which private corporations, often Silicon Valley giants like Facebook, Google, YouTube, and Apple, but also telecom companies such as Verizon and AT&T, assist the NSA in tracking the population (pp. 223–224). At one point, for instance, he explains how the Prism program works, giving the NSA access to personal emails, photos, video and audio chats, and browsing history that is harvested and stored by, among others, the Internet platforms mentioned above, making these ‘witting coconspirators’ to the government (p. 224). In a way, then, by emphasising that they are wittingly assisting the NSA, Snowden places blame on big tech too: they know what they are doing and should to some extent be held accountable as well. However, big tech companies remain mere ‘coconspirators’ in his view, always playing second fiddle, having been a nuisance only by virtue of helping the state ensure ‘that the world’s information, both stored and in transit was, surveillable’ (ibid.). This way, Snowden suggests that the expansion and intensification of corporate surveillance are not harmful in its own right, as if all corporate surveillance can do is make the state’s practice of watching more effective. Snowden’s preoccupation with the responsibility of the state, then, is closely connected to his conception of the surveillance threat as such, and how it constitutes subjectivity. For where the book’s opening line captures Snowden’s concern with state responsibility, its title captures his concern with the practice of watching and accordingly mass surveillance as a threat to privacy. With the title, Permanent Record, he refers to the way in which the surveilling authority, i.e., the state, can store data on its citizens and keep it permanently, and this way always hold the implicit threat of resurfacing embarrassing or incriminating behaviour from the past over the population. This limits our freedom to act in the present, Snowden holds, because the awareness that whatever we do today might come back to haunt us tomorrow makes us more cautious as we go about our everyday lives (pp. 96, 167, 197). As such, the very idea of surveillance as watching that grounds his

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argument centres on the belief that we need privacy, perhaps even anonymity, to be free; that it is only while private and un-watched that we can truly be agentic and autonomous. Moreover, Snowden makes the spatial character of this liberty explicit when he argues that privacy is a ‘space that’s off-limits to the government’; ‘an empty zone that lies beyond the reach of the state, a void into which the law is only permitted to venture with a warrant’ (pp. 207–208, emphasis my own). This way, his take on mass surveillance’s threat to privacy also incorporates, though rarely explicitly, a view of watching as disciplining: by highlighting the limiting force of the awareness of always being watched, Snowden echoes analyses of panopticism and chilling effects that we recognise from the literature. For instance, in a discussion of the perils of artificial intelligence and of bringing smart devices into the home, in this specific case a smart fridge, he expresses fear that the fridge might monitor his habits and use his ‘tendency to drink straight from the carton or not wash my hands to evaluate the probability of my being a felon’ (p. 196), while he at another point voices concern that stored data can be searched retroactively and used to ‘victimize in search of a crime’ (p. 178). More than that, however, the memoir explicitly, if briefly, addresses the problem that this same stored data is used to modify behaviour. In square surveillance capitalism-lingo, he explains how algorithms identify ‘patterns of established behavior in order to extrapolate behaviors to come’ (p. 332) and how data is ‘developed into advertising algorithms and converted into cash’ (p. 192). This way, Snowden decidedly adds the threat of modification to the threat of watching, and thus somehow confuses conventional understandings of the surveilled subject as disciplined by internalisation of the gaze; something more is at play here, he suggests and offers a small opening to understanding the subject’s freedom from surveillance in terms of agency as well as privacy, oriented in time instead of space. Even if a certain sensitivity to the temporality of being is in evidence here, Snowden’s remains a representation of the subject that to a large extent privileges a spatial conceptualisation of freedom, and so the confusion alluded to is hardly transformative. This comes through particularly well in the memoir’s consistent subordination of the concern for agency to the concern for privacy that was touched on in the previous paragraph. For Snowden, it appears, privacy always comes first and agency second, in the sense that agency is only ever at stake when privacy is compromised, and so the threat to agency is, if materialised at all, always indirect. Observe for instance how, in the discussion of corporate surveillance referenced above, he views manipulation as a threat because it might lead to social sorting and discrimination (p. 333), and because it might ‘impoverish our private existence’ (p. 192), not because it interferes with and adjusts everyday behaviour. Observe also that he has limited faith in the effectiveness of modification, calling the prediction of behaviour ‘a type of digital prophecy that’s only slightly more accurate than analog methods like palm reading’

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(p. 332). Even when explicitly lifting the concern for agency, then, Snowden sees its potential loss as a consequence of too intensive watching, and the initial loss of privacy; as a result of the reduction and management of space in which to be free. Chris Wylie’s Mindf*ck Wylie’s story, as he tells it in his memoirs entitled Mindf*ck, is rather different of course, since he was working for and blew the whistle on, not a government agency but a private company. Similar to Snowden’s story, however, Wylie’s story is also one of realising that the practices he was exercising and the architecture he had helped build, was indefensible, even to the extent that exposing it to the wider world was necessary. For Wylie, though, placing heavy emphasis on the democratic process and how its integrity and even possibility might be at risk in the current surveillance and intelligence environment, it seems like this realisation was more a discovery of how the very foundations of politics as we know it is shaking, than an awakening to the corruption and violence of a single regime. This way, he does not quite cut the shape of Snowden’s watched and disciplined citizensubject confirming the role of the state as the legitimate surveiller, but rather, emerges as a more frustrating figure. Admittedly, though, Wylie too embodies the disciplined subject of surveillance to some extent, as he moves from being an outside threat to being a public defender of the modern democratic state, and this way confirms the legitimacy of state authority as surveilling power and the assumption that the state is worth securing precisely due to its modern and democratic quality. In particular, his representation of Cambridge Analytica and Facebook as vehicles for outside, predominantly Russian, interference in the otherwise civil and well-functioning democracies of the West (pp. 5, 18, 133–136, 181), reproduces conventional geopolitical imaginaries of inside/ outside where the development of mass surveillance technology does nothing more than providing the state with new tools to apply in the same old anarchic power struggle. Moreover, when Cambridge Analytica and Facebook are represented as threats themselves, not mere vehicles, often through the renouncement of Nix, the company CEO, as a neo-colonial super villain (pp. 43, 54–55) or Steve Bannon, one of the key stakeholders and later advisor to Trump, as an architect of the culture wars (pp. 82–83), the surveillance threat is often seen as coming from a malign intruder, looking to cause harm for own political gains. At one point, for instance, Wylie describes Bannon’s ambitions as revolutionary (p. 82) and at another likens his project with an insurgency (p. 132). Relatedly, he passionately argues that Cambridge Analytica was a tool for the weaponisation of data and that the data-driven radicalisation of the American electorate was jarringly similar to military psychological operations carried out in wars abroad (pp. 40–43).

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Wylie is adamant to stress, however, that Cambridge Analytica, through the use of targeted messaging based on techniques of prediction and modification, actively manipulated the electorate, most infamously in the Brexit referendum and the 2016 US presidential election, and so eliminated the possibility of free and fair elections. This way, he holds, the big tech companies that gather, analyse and sell data like Facebook, and the consulting firms that provide services of prediction and modification of behaviour like Cambridge Analytica, are not only a threat to national security due to their size, wealth and concentration of power (p. 18), but also, and more importantly, due to their potential for subversion, degrading the very legitimacy of democratic processes and as such, putting the state’s ability to govern and secure its citizen-subjects, constitutively agentic and free, radically in question. Detailing this degradation, he emphasises the scale at which the company was able to operate in ‘moving public opinion’ (p. 95), but is, interestingly, more concerned with the micro-practices that make such large scale and massively consequential operation possible. These micro-practices, or more precisely practices of micro-targeting, Wylie explains, are based on the creation of psychological profiles of individual users, where the ‘patterns of a social media user’s likes, status updates, groups, follows, and clicks all serves as discrete clues that could accurately reveal a person’s personality profile when compiled together’ (p. 96). These profiles are in turn used to craft personalised messaging that can, and often do, influence the individual’s course of action, steadily steering their behaviour towards a profitable – political or financial or both – outcome. Thus, making every little piece of data, not only those that garner suspicion, worthy of gathering, analysis and appropriation, the practice of micro-targeting integrates intelligence in the everyday in a way that it has never been done before. Now, Wylie indicates, each surveillance subject contributes to, and is affected by, its own surveillance, through its most mundane routines: clicks and swipes. Showing how this works in practice Wylie gives the example of how in the Trump campaign Cambridge Analytica targeted people showing signs of ‘white fragility’, i.e., people who were not overtly racist but nevertheless held ‘latent prejudices’ and were worried that their position of white privilege was under threat, and showed them messaging saying things like ‘imagine an America where you can’t pronounce anyone’s name’ (p. 127) in order to incite anger towards the liberal establishment and activate suppressed racism (pp. 125–127). For Bannon, this was just effective political advertisement, helping people discover their true selves and being honest and comfortable with their deep-seated and true political views, but for Wylie, as he gradually came to realise, it was a way to ‘simulate a future society to create problems like ethnic tension or wealth disparity and watch how they play out’ (p. 103), even to such an extent that the line between ‘exploring something and actually creating it’ (p. 116) was blurred. This way, Wylie’s description of mass surveillance pivots away from seeing it primarily as a practice of watching and so as a threat to privacy.

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Emphasising how contemporary mass surveillance actively modifies behaviour, he lifts the concern for agency as well and privileges an understanding of freedom from excessive surveillance as temporally oriented. For the use of data to target messaging is, as becomes especially clear when used for purposes of radicalisation and polarisation in election campaigns, not ‘some kind of therapeutic counselling’, but rather a ‘form of psychological attack’ that targets ‘personal agency’ directly (p. 49). Different from disciplinary surveillance that targets the mind through watching and the creation of chilling effects, then, micro-targeting, and more generally (com)modification, targets known psychological proclivities and often vulnerabilities directly. Moreover, and crucially, it does so at the individual level, and so offers a different, and arguably more effective way, of governing populations. Wylie does at times, however, as is symptomatic for any elaborations on the loss of agency at the hands of mass surveillance, highlight the loss of privacy too, and indeed mixes the concern for agency with the concern for privacy. For instance, he very clearly echoes Snowden’s worry about the keeping of permanent records and the disciplining effects of watching, when writing that we ‘risk creating a society obsessive about remembering, and we may have overlooked the value of forgetting, moving on or being unknown’. Moreover, he evidently sees privacy and agency as tightly connected liberties when stating that ‘Privacy is the very essence of the power to decide who and how we want to be. Privacy is not about hiding – privacy is about human growth and agency’ (p. 235, emphasis in original). As opposed to Snowden, though, Wylie maintains his understanding of freedom from surveillance primarily as a temporally oriented liberty, even when accounting for the threat to privacy as well. For on his account, ‘privacy is about […] agency’ not the other way around, and as such, he diverts from the established account of freedom as stemming from the capacity to remain unseen and hidden from the watchful eye, and instead ventures that freedom is measured by the capacity of political subjects to remain unmodified and able ‘to make rational and independent choices on their own accord’ (p. 234). Stating this point even more clearly, Wylie argues that ‘rights to life, liberty, association, speech, vote and conscience are all underpinned with a presumption of agency, as they are outputs of that agency’ (ibid.). This way, he explicitly subordinates the concern for privacy to the concern for agency, and implicitly pivots towards a concept of the surveilled, political subject as steered more than disciplined, modified more than docile, and as such, whose conditions for (un)free political expression and action is ultimately altered.

Conclusion It seems, then, that the difference between the Snowden revelations and the Cambridge Analytica scandal and the move from the keeping of permanent records to f*cking of the mind, illustrates well the gravitational shift in

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surveillance and intelligence practices from watching to modification, and indeed, how this shift implicates a shift in the production of political subjectivities. Although both whistleblowers express concern for the increasing influence that big tech has over surveillance and intelligence, they do so in rather different ways. For where Snowden considers the influence of big tech harmful primarily because it can aid the state in its practice of watching and its assault on privacy, Wylie considers it harmful primarily because it directly exploits the human experience of freedom through behavioural modification and an assault on agency. More specifically, he addresses the emergence of practices of micro-targeting as a type of (com)modification, and thus brings to our attention new loci, practices and dynamics of intelligence gathering, especially emphasising its mundane and participatory, but also potentially manipulative and coercive, nature. This way, Wylie helps us see both how contemporary surveillance and intelligence is changing, and relatedly how the contemporary surveillance subject, and indeed the political subject as such, can and perhaps should be seen as (un)free in temporal terms instead of spatial; as agentic instead of private. Of course, the clear analytical separation between watching/modification, privacy/agency, and spatial/temporal liberty, is just that: analytical. In ‘reality’, the subject is always located and moving in both space and time, and so never purely private/spatial or agentic/temporal. This is evident both in the literature where concerns for privacy and agency is often and easily mixed, and in Snowden’s and Wylie’s memoirs, where the exact spatiotemporal location of (un)free subjectivity is rarely made explicit. However, separating them analytically as I have made the case for here, and that I argue Wylie’s break with Snowden justifies, is helpful because it allows us to appreciate and take seriously what is at stake in contemporary postCambridge Analytica developments of surveillance and intelligence practices, and in particular, engage with the rise of surveillance capitalism as a distinct transformative social phenomenon. As such, Wylie’s representation of contemporary surveillance and political subjectivity, in its echoing of surveillance capitalism-scholars, calls for the opening of a new line of enquiry for the critical study of surveillance and intelligence: one that risks staying closed if we insist on viewing contemporary surveillance and intelligence through the post-Snowden lens. Specifically, this opening appears to enable a timely sensitivity to namely the ways in which big tech companies increase their power by directly but subtly assaulting individual agency and free will. Thus, it also poses new conceptual challenges to the study of surveillance and intelligence, specifically by encouraging the close and critical examination of exactly how algorithmic and corporate assaults on individual agency might transform conditions for political expression and action, and relatedly enable novel modes of governance, violence and exclusion, but also unique forms of resistance and social and political communion.

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Note 1 See the Introduction chapter in this volume.

References Aid, M. 2020. ‘All glory is fleeting: SIGINT and the fight against international terrorism’, In C. Andrew, R. J. Aldrich, and W. K. Wark, eds. Secret Intelligence: A Reader, 2nd edn. New York: Routledge. Albanese, D. C. S. 2017. ‘“It takes a Russian to beat a Russian”: the National Union of Labour Solidarists, nationalism and human intelligence operations in the Cold War’. Intelligence and National Security 32 (6): 782–796. Andrejevic, M. 2013. Infoglut: How Too Much Information Is Changing the Way We Think and Know. New York: Routledge. Andrejevic, M., L. Dencik, and E. Treré. 2020. ‘From Pre-emption to Slowness: Assessing the Contrasting Temporalities of Data-driven Predictive Policing’. New Media and Society 22 (9): 1528–1544. 10.1177/1461444820913565 Aradau, C., and T. Blanke. 2016. ‘Politics of Prediction: Security and the Time/Space of Governmentality in the Age of Big Data’. European Journal of Social Theory 20 (3): 373–391. Aradau, C., and T. Blanke. 2018. ‘Governing Others: Anomaly and the Algorithmic Subject of Security’. European Journal of International Security 3 (1): 1–21. Benbouzid, B. 2019. ‘To Predict and to Manage. Predictive Policing in the United States’. Big Data and Society 1–13. January–June. 10.1177/2053951719861703. Bauman, Z., D. Bigo, P. Esteves, E. Guild, V. Jabri, D. Lyon, R. B. J. Walker. 2014. ‘After Snowden: Rethinking the Impact of Surveillance’. International Political Sociology 8 (2): 121–144. Ben Jaffel, H., et al. 2020. ‘Collectice Discussion: Toward Critical Approaches to Intelligence as a Social Phenomenon’. International Political Sociology 14 (3): 323–344. Bennett, C. 2011. ‘In Defence of Privacy: The Concept and the Regime’. Surveillance and Society 8 (4): 485–496. Biddle, S. 2020. ‘There’s No Telling What Data Facebook Will Collect if You Use Its Zoom Clone’. The Intercept. Available at: https://theintercept.com/2020/05/20/ facebook-messenger-rooms-video-call/ Cadwalladr, C. 2018. ‘“I made Steve Bannon’s Psychological Warfare Tool”: Meet the Data War Whistleblower’. Theguardian.com. Available at: https://www.theguardian. com/news/2018/mar/17/data-war-whistleblower-christopher-wylie-faceook-nix-bannontrump Cadwalladr, C., and E. Graham-Harrison. 2018. ‘Revealed: 50 million Facebook Profiles Harvested for Cambridge Analytica in Major Data Breach’. Theguardian.com. Available at: https://www.theguardian.com/news/2018/mar/17/ cambridge-analytica-facebook-influence-us-election Channel 4 News. 2018. ‘Cambridge Analytica: Whistleblower reveals data grab of 50 million Facebook profiles’. Channel 4 News. YouTube. Available at: https://www. youtube.com/watch?v=zb6-xz-geH4. Channel 4 News. 2018. ‘Revealed: Trump’s Election Consultants Filmed Saying They Use Bribes and Sex Workers to Entrap Politicians’. Available at: https://www. channel4.com/news/cambridge-analytica-revealed-trumps-election-consultants-filmedsaying-they-use-bribes-and-sex-workers-to-entrap-politicians-investigation

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Dufour, D.-R. 2008. The Art of Shrinking Heads. Cambridge: Polity Press. Elmer, G. 2012. ‘Panopticon-Discipline-Control’. In K. Ball, K. Haggerty, and D. Lyon, eds. Routledge Handbook of Surveillance Studies. London: Routledge, pp. 21–29. Emirbayer, M., and A. Mische. 1998. ‘What Is Agency?’ American Journal of Sociology 103 (4): 962–1023. de Goede, M. 2008. ‘The Politics of Preemption and the War on Terror in Europe’. European Journal of International Relations 14 (1): 161–185. Greenwald, G., and E. MacAskill. 2013. ‘NSA Prism Program Taps into User Data of Apple, Google and Others’. The Guardian. Available at: https://www. theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data Guerin, W. L., et al. 2005. A Handbook of Critical Approaches to Literature, 5th edition. New York: Oxford University Press. Haggerty, K. 2006. ‘Tear Down the Walls: On Demolishing the Panopticon’. In Theorizing Surveillance: The Panopticon and Beyond. New York: Routledge, pp. 23–45. Han, B.-C. 2015. The Burnout Society. Redwood City: Standford University Press. Han, B.-C. 2017. Psychopolitics: Neoliberalism and New Technologies of Power. Brooklyn: Verso. Harcourt, B. E. 2015. Exposed: Desire and Disobedience in the Digital Age. Cambridge, MA: Harvard University Press. Illing, S. 2018. ‘Cambridge Analytica, the Shady Data Firm that Might be a Key TrumpRussia link, explained’. Vox. Available at: https://www.vox.com/policy-and-politics/ 2017/10/16/15657512/cambridge-analytica-facebook-alexander-nix-christopher-wylie Jackson, P., and L. Scott. 2004. ‘The Study of Intelligence in Theory and Practice’. Intelligence and National Security 19 (2): 139–169. Lasoen, K. 2019. ‘Belgian Intelligence SIGINT Operations’. International Journal of Intelligence and Counterintelligence 32 (1): 1–29. Lomas, D. W. B., and C. J. Murphy. 2019. Intelligence and Espionage: Secrets and Spies. New York: Routledge. Lyon, D. 2014. ‘Surveillance, Snowden, and Big Data: Capacities, Consequences, Critique’. Big Data and Society 1–13. July–December. Lyon, D. 2015. Surveillance after Snowden. Cambridge: Polity Press. Lyon, D. 2019. ‘Surveillance Capitalism, Surveillance Culture and Data Politics’. In D. Bigo, E. Isin, and E. Ruppert, eds. Data Politics: Worlds, Subjects, Rights. Milton Park: Routledge. Madsen, A. K., et al. 2016. ‘Big Data: Issues for an International Political Sociology of Data Practices’. International Political Sociology 10 (3): 275–296. Manokha, I. 2018. ‘Surveillance, Panopticism, and Self-Discipline in the Digital Age’. Surveillance and Society 16 (2): 219–237. Mathiesen, T. 1997. ‘The Viewer Society: Michel Foucault’s “Panopticon” Revisited’. Theoretical Criminology 1 (2): 215–234. Murakami Wood, D., and T. Monahan. 2019. ‘Editorial: Platform Capitalism’. Surveillance and Society 17 (1/2): 1–6. Patel, T. G. 2012. ‘Surveillance, Suspicion and Stigma: Brown Bodies in a TerrorPanic Climate’. Surveillance and Society 10 (3/4): 215–234. Perrigo, B. 2020. ‘U.S. States Are Rolling Out COVID-19 Contact Tracing Apps. Months of Evidence From Europe Shows They’re No Silver Bullet’. Time. Available at: https://time.com/5898559/covid-19-contact-tracing-apps-privacy/

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Reynolds, D. 2005. ‘The Ultra Secret and Churchill’s War Memoirs’. Intelligence and National Security 20 (2): 209–224. Richards, J. 2020. ‘Needles in haystacks: Law, capability, ethics, and proportionality in Big Data intelligence-gathering’. In C., Andrew, R. J. Aldrich, and W. K. Wark, eds. Secret Intelligence: A Reader, 2nd edition. New York: Routledge, pp. 422–431. Sano, J. 2015. ‘The Changing Shape of HUMINT’. The Intelligencer 21 (3): 77–80. Snowden, E. 2019. Permanent Record. London: Macmillan. Strand, S. 2019. (Re)Inventing the Armed Forces: A Governmentality Analysis of Swedish Military Marketing and Outreach in the Era of Voluntarism. University of Gothenburg. The New York Times. 2020. ‘The Government uses “Near Perfect Surveillance” Data on Americans’. Available at: https://www.nytimes.com/2020/02/07/opinion/ dhs-cell-phone-tracking.html Wippl, J. 2020. ‘Observations on Sucessful Espionage’. In C. Andrew, R. J. Aldrich, and W. K. Wark, eds. Secret Intelligence: A Reader, 2nd edition. New York: Routledge. Wood, D. M., and K. Ball. 2013. ‘Brandscapes of Control? Surveillance, Marketing and the Co-construction of Subjectivity and Space in Neo-liberal Capitalism’. Marketing Theory 13 (1): 47–67. 10.1177/1470593112467264 Yeung, K. 2017. ‘“Hypernudge”: Big Data as a Mode of Regulation by Design’. Information Communication and Society 20 (1): 118–136. Taylor & Francis. 10.1080/13 69118X.2016.1186713 Zuboff, S. 2019. The Age of Surveillance Capitalism. London: Profile Books.

11 Violence Performed in Secret by State Agents: For an Alternative Problematisation of Intelligence Studies Didier Bigo Introduction In this chapter, I would like to address the conditions under which information and intelligence are constructed and used today by secret services, considering the effects of three interdependent dynamics reinforcing each other: transnational sharing of information by coalitions of secret services of the same kind, digitisation allowing a large-scale surveillance of foreigners and citizen suspected to be ‘a danger’, and a restructuration of the prominent organisations doing intrusive surveillance and violent actions as a public–private assemblage based in the global North but having its main lethal consequences on the South. My main question lies on how to investigate the practices of state violence performed in secret and their modalities of legitimation when the scale of their activities has changed so fast and affect so many individuals in the world. From the secret games of the Cold War between professional spies interested to evaluate the defence systems of the opposite block to now, we have seen an expansion of the groups to put under surveillance, including suspects of terrorism and crime. The number of professionals of intelligence has multiplied, and their enrolment of ‘adjuncts’ in other public organisations and private companies has pushed many other actors to act as ‘intelligence’ providers. The technologies employed have become sufficiently advanced to be considered economically ‘profitable’ and have tied contacts beyond national security. The targets are so numerous that it is difficult for anyone to believe they can live in a bubble fully protected from intrusions of ‘intelligence’ actors. In the first part, I want to show that this change of scale has not yet been fully considered by the specialists of ‘Intelligence Studies’ in their investigations of professional actors beyond the small anglophone club of secret services, despite considerable advances in interdisciplinary methods. I will briefly describe the main contributions of ‘Intelligence Studies’, already discussed by Hager Ben Jaffel and Sebastian Larsson in the introduction of this book, insisting on the ways by which this crossroad of research around secret services has evolved and crystallised for good reasons around the idea of intelligence, but has left out the questions of violence and legitimisation DOI: 10.4324/9781003205463-14

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by focusing almost exclusively on secret information. This needs in my view to be corrected and reshaped through the contributions coming from another nexus of recent research in International Political Sociology, insisting on the socio-genesis of violence historically and state transformations, on the transnational dimension of the field of intelligence and its impact on the quality of political regimes in relation to their own population and their attitude towards their allies, as well as their posture considering others as foreign citizens and not objects to be under surveillance. As we will see, if transformations are important today, they are not just the product of technical changes or of a movement of globalisation. The field of intelligence has evolved historically and has its own history in relation to the state, to the capital and to the people (Tilly 2003). The differentiation of specific ‘secret’ activities from other coercive forces has been a long process, far from some essentialist narratives naturalising their function to all states and societies. The differentiation of a social universe of civil servants working in secret has been stronger in the states who wanted to have a regional or a world influence, and who have participated in colonial projects. It has also been by far more discussed in democratic societies than authoritarian ones, as the modalities of legitimation of their existence have generated controversies and sometimes scandals asking for the suppression of a specific service. Consequently, the fragility of these modes of legitimation and of their transformations is not a problem but, on the contrary, the sign of the vitality of democracy and the importance of this subject. The idea of a universe existing forever outside of the norms and institutions regulating the world, in the name of a permanent exception and naturality of an unending war, declared or not, against enemies, traitors, adversaries, or even opponents, is not sustainable academically and democratically speaking. A certain idea of the king’s privilege as a ‘despotic right’ cannot continue, despite the efforts to justify this lineage. Until the end of the 1960s, the first realist-cynical tradition of geopolitics was tempted to consider the secret services as shadow soldiers obeying almost blindly the executive power in charge, in order to avoid the tension between accountability in democratic regimes and secrecy as the site of potential impunity, even in the case of gross violations of human rights or betrayal of the nation. However, the post-Cold War transformations of the game of spying and counter-spying have shown that it was an unrealistic legitimisation to create a full veil of ignorance around the actors enacting secret actions. It became even more clear than before that each secret service has a life of its own, with missions sometimes loosely connected with the national political scene and diplomatic life yet organised around transnational activities of different regional alliances. The ideological restriction of the role of secret services to a nationalist frame and a national security community has rendered intelligence scholarship incapable of discussing the most interesting transformations concerning the privatisation, digitisation, and transnationalisation of the

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services, as well as the expansion of their activities. Refusing to look in detail on the practices, these so-called realists have, by ignorance or facility, taken for granted the projection of a certain type of folk-theory of the insiders, insisting on their neutrality and technicity. The difficulties to enter a universe characterised by secrecy, and the will to respect it, has been crucial for this academic attitude. Fortunately, as we will see in the second part of this chapter, post-1990s intelligence scholarship is born from a somewhat more reflexive posture, both intellectually and methodologically. The historians who populated the academic field were predominant since they were in a methodological position where they could study released official secrets that had previously been restricted by secrecy laws, as long as they had access to more or less unfiltered documents and were attentive to the quality of the archives. They were crucial to give back a sense of real life of the secret agents and their organisations, their alliances and conflicts, and their partial autonomy from politicians. But the obvious cost was the delay of the releases of official secrets, from ten years in the most optimistic cases to more than 50 years in the most complex ones. To fill the ‘gap’ created by the secrecy of today’s practices, that political scientists and sociologists were not ready to engage with, we saw instead the development of semi-fictional narratives coming from media and popular culture narratives. These do not have to be neglected as unscientific. Their impact on the modalities of legitimation in relation to the public has been by far more important than any work of the social sciences. For decades, the image of James Bond has framed the idea of the glamourous dimension of everyday life in the secret services. This continues to be one of the main resources of the strategy of communication of the services concerning their role and mission, even if they have added to fiction an assemblage of truth regimes based on their interest, in universities, teaching, and memoirs of previous top state agents. In academia, organisational sociologists and political scientists have tried to construct a narrative and a synthesis by framing their research on secret services as a specific sub-discipline, different from War Studies and Security Studies, and concentrating on ‘Intelligence Studies’. Under this specific ‘label’ of Intelligence Studies, different journals have accepted works based on archives to open their columns to former practitioners turned professors, who have provided a gist of their past workplace and routines, as well as some professionals of the sociology of organisations who have tried to translate, despite the official secrets, what have been the different challenges met by the professionals to do their job. For the last thirty years, these researchers have developed a more in-depth knowledge about the routines and everyday life of the services during key moments in history, and they have set up a framework with concepts like ‘intelligence community’, ‘national security’, and ‘intelligence cycle’; a frame which has its merits, but also its deficits. Certainly, the merits come from complexifying and deepening our knowledge on secret services by trying to open the ‘black box’ of their human internal relations and the logic of their organisation and roles. It has

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allowed to answer better the very different ‘crafts’ that each service has tried to develop within the intelligence community. This was an important insight, however, intelligence research has often been done to the price of a hyperspecialisation (i.e., a description of one service in one country) and sometimes an ethical position-shifting from the necessary doubt of academic reasoning to conducting research to get a kind of Salomon judgement in the name of ‘neutrality’ – meaning that instead of looking to the truth covered by secrets, they were deciding to have a ‘balanced’ judgement based on respecting the diverse viewpoints of the services and their contenders. I will come back to this attitude. Among other deficits in intelligence scholarship signalled in the introduction of this book, I will also insist on the original framing of the practices of secret services in terms of ‘intelligence’ studies, a terminology which I consider inadequate for an analysis of the practices of different forms of violence which occur at the intersection between the field of politics, especially in democratic regime, and the field of violent use of power by dominant actors.1 By discussing more and more the modalities of secrets, and less and less the frame of violence of these ‘secret’ activities, the research has decided, quite logically, to call itself ‘intelligence studies’, especially in publications in the anglosphere (contrary to Latin-American and some continental European publications). This move, that I will detail below, has focused on geopolitics and counterterrorist public policies and has concerned firstly the signals intelligence services. It has therefore taken part in the symbolic struggles about the very justification of some of the secret services, opposing the traditional military ones and those who wanted to be considered less violent and less secret. They have presented themselves as almost a normal bureaucratic activity in a society of surveillance where the state surveillance is supposedly less intrusive and extensive than the one of private digital companies. Undoubtedly, some analysts consider that the trend of the diminution of violence by the executive powers in place, and its replacement by a politics of management based on anticipation of the future and prevention, justify putting the emphasis on intelligence only. At first sight, it is certainly possible to agree with this potential trend. Nevertheless, as we will see in the third part of this chapter, this argument of a minimisation of the use of violence cannot be overestimated. The intensity and visibility of violence may seem to decrease in open conflicts, but as soon as the changes of forms of violence are taken into consideration, as well as the size of their targets and the implications for everyone, it is clear that violence performed by secret services in less visible ways than before continues and extends, nevertheless. The main change is therefore for them to boost a reinforcement of their strategies of legitimation in order to avoid scandals and to preserve a sort of structural impunity. As we will see, these narratives of refocusing from direct to indirect violence are framed around ‘proactivity’, ‘prevention’, ‘anticipation of risk’, and ‘prediction’. Part of academia has been fascinated by these discourses but has not explored the practices. The result has been that some scholars have taken them for granted

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and believed in their efficiency, even when they had doubts about their legitimacy and contested them in the name of privacy. But the so-called balance between security and privacy has ended up naturalising the narratives of the validity of prevention and its techniques, as if they were the routines of a new technological digital society not related to the extension of certain political practices. The overall strategy has been to present themselves as clever technicians anticipating the worst-case scenario and providing solutions to escape this fate. But the long chain of consequences of their actions and the reactions they generate (intentionally or not) push on the contrary to question their legitimacy almost permanently. I will finish the chapter by suggesting that these central elements and their relations, which have not been clearly identified by the different strands of research of Intelligence Studies, can strongly benefit from the reading of key sociologists belonging to an international political relational sociology, discussing violence and legitimation against the canons of the US political science of the 1970s that are still in use in intelligence scholarship. To quote just a few names, Norbert Elias, Anthony Giddens, and Pierre Bourdieu can give us answers about the practices of secret services over time, the links they have with politics, and also their international role today. Of course, these important sociologists are not specialists of secret services and they have rarely written about the roles of these services. Nevertheless, their framing of the state and its relations to society in terms of power relations and processes, insisting on the dispositions (habitus), professional fields, and logics of interdependence among all these actors, explain far better what is at stake today in the management of secret violence of state agents and their private counterparts, and on the conditions of possibilities of a reflexive social science research. Their common insistence to analyse all forms of violence, from the most brutal to the most subtle, can act as Ariadne’s thread to reframe the understanding of the role of secret services over the world, at least in the global North. I propose therefore to develop a research programme concerning, first, a socio-analysis of historical trajectories of the different configurations between the different secret services, second, to have a reflexive stance about academic research in regard to these reconfigurations and permanent struggles for controlling why and how violence performed in secret is still possible (even if other strategies of justifications are needed), and third, to have a closer look at the secret services in the anglosphere and their relations with other liberal representative democratic regimes in order to see them as different social universes in interaction and competition, which are certainly not one ‘community’.

Violence Performed in Secret by State Authorities: The Other Face of the Social Contacts There are many ways of looking at the role of the secret services in political life. Violence performed in secret by a group of persons around the prince

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pre-dates Machiavelli. This does not mean that secret services are eternal or consubstantial to humankind in society, even if many books evoke these origins with the joke about the ‘second oldest profession of the world’ which has the function to essentialise the existence of the service and ignore its lineage with mercenaries and privateers.2 James Der Derian (1992) has explained how modern states have accepted immunity for embassies and how they have been the birthplace for institutional spying and counter-spying, in order to organise impunity for those executing the ‘orders of the prince’. From there, a profession has emerged (Horn 2011).3 Secrecy has been a ‘pact’ of silence between complicit agents using violence, but the novelty has been to immunise them from normal punishment via a regime of justification changing the very status of their actions (Warner 2014; Krulic 2010). Secret agents were acting in the name of the prince as a head of state, for something beyond his own goodwill. With the emergence of democratic conditions desacralizing the prince’s privileges, however, the people’s representatives asked for ‘reasons’, and even considered the former King of France Louis XVI to be a traitor to the nation. Nevertheless, governments, beginning with Robespierre, have tried to preserve a kind of sanctity of secrecy by transforming the notion of security from a king’s privilege into a necessity to protect the people, to protect the ‘nation’. Specialised committees of deputies or specific branches of the army were entitled to act under the direct orders of the head of state. It is not before the late 19th century that the logic of political secrecy became connected with arguments about survival and national security and that specific services, different often from the army, emerged (Gros 2012). If the official existence of some of these services was recognised during the First World War, until recently some countries, like the Netherlands, denied the existence of secret services belonging officially to the state, even against evidence of the contrary.4 So, instead of artificially creating by nominalism a natural history of spying (and performing violence in secret), we have to remember the structural differences that have existed, from mercenaries to an institutionalisation of ‘public servants’ specialised in these domains of violent action, anti-diplomacy, and surveillance of populations. Many countries over the world maintain this policy and often specialise a branch of their army to do these tasks, instead of creating institutions more dependent on civilian power and the head of state (Jones 2014). The fragility of the justification explains the strength of the dogma that, ‘by essence’, the secret services are necessary instruments for the survival of democracies in a world where they are a minority, and that any form of control of their actions is limiting their efficiency. This permanent necessity to assert the legitimacy of the services fighting against new and bigger threats against the doubt of many citizens, especially during scandals, is something which haunts the establishment and perpetuation of ‘intelligence services’. This quest for legitimacy explains the shift from spectacular violent action to surveillance and strategic information in liberal regimes. The agents and the future candidates to these functions are

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nowadays sensitive to the ethos of performing a noble task, almost immaterial and dealing mostly with accuracy and timely information in order to inform decision making. Nevertheless, death itself cannot be buried under the other goals of secret ‘intelligence’. The consequences for human beings of being the targets of secret services are not benign. Extraction of information can be done by intrusive techniques against privacy in the digital realm or by interrogations under torture of groups of people who are denounced as potential allies of clandestine organisations. These practices, justified under the necessity to prevent future acts, are not identical to the consequences of being searched by criminal justice and police, even if many recent justifications try, under the term of ‘counter-terrorism’, to convince us that secret services are performing the ‘justice’ of their countries abroad by ‘executing’ the tasks to eliminate some ‘targets’. The legitimation of the services to perform violence secretly is a normal project for an institution always in danger of being accused of doing these actions for their own purposes or against basic fundamental rights in democracies. What is more of a problem, however, is that most intelligence researchers do not question the modalities of legitimation but rather escape this question by considering the activities of secret services as ‘normal’ bureaucracy. Secrecy replaces the question of violence. The tragic dimension of the intelligence task is transformed into a ‘banal’ event, a bureaucratic routine of collecting information, elaborating intelligence information, and creating options of probable futures to influence one future in particular to advent. Intelligence Studies: Forgetting Violence? By the very name of Intelligence Studies, the core part of the objectives of secret services – which is called in other contexts, ‘murders’, ‘extra-judicial killings’, ‘extorsion’, or ‘manipulation’ – is therefore invisibilised, and the services are conceived exclusively as a bureaucratic ‘community’ of collection of information by secret means. The will of abstraction and the turn to design models for the management of a so-called ‘intelligence community’ made up of all the services (be they external-military-diplomatic or internal-police-border guards) has allowed intelligence scholars to present a ‘clean face’ of the services by focusing on their expertise concerning ‘information’ and ‘intelligence’, a face which do not consider the details of the violence covered by their secrets. Current research has the tendency to avoid the questions of the legitimation of the objectives and the justification of impunity for all those working for a state that allows the possibility to shield these actions abroad and at home (McCoy 2012). As we will see later, we cannot agree with this framing of the functioning of the secret services in everyday situations, which fails to consider their impact on politics and their choices concerning the ‘grievable’ and ‘non-grievable’ lives that they are making with their watchlists,

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statistics, and algorithms (Butler 2009). Taking intelligence seriously is about transforming the question of secrecy as a means to use violence into a question of access to information for the public and researchers. This is certainly better than to pretend that secrets are unquestionable, but it is not a sufficient step. From the 1950s to the 1980s, the most common attitude of political scientists has been to transform the de facto problem of access to documentation and detailed information into a ‘tactical advantage’ justifying their rational choice theory of the unicity of the ‘voice’ of the state and reviving the old argument of the alliances around national security and national interest. Through this preference for geopolitics, political scientists succeeded in constructing a global narrative reducing the intelligence services to national ‘instruments’ obeying the politicians in place, opening therefore the possibility that these instruments were ‘neutral’. Intelligence services were the ‘obedient soldiers of the shadow wars’ and were living with specific rules outside of criminal laws and the laws of war (Todd and Bloch 2003). They had all their own special universe unregulated by law, but not anarchical. The Cold War confrontation promoted this upscaling of the discussion in intelligence scholarship ignoring the details of the different cases, but it became less and less sustainable after the 1980s when it became obvious that spying and counter-spying was not at all the core part of their work, but that they were involved in many other activities such as subversion and counter-subversion, economic intelligence, and actions in favour of big national private companies (Demarest 1995; Grey 2015). International laws tried to regulate the questions of mercenaries, and also the activities of the secret services. The 1981 Council of Europe Convention 108 for the ‘Protection of Individuals with regard to Automatic Processing of Personal Data’ was clearly opposing this notion of the right for the services to be outside national and international laws. They may continue to exist as a derogation inside a specific frame of laws, but not as a permanent exception untouchable by law and obeying only the ‘raison d’État’ and its antidemocratic space.5 This geopolitical framing of a cynical raison d’État, ignoring on purpose the details of the lives of the agents of the services, has created a difficulty for social science to research ‘intelligence’ services. Respecting absolutely the secrecy of practices has led these authors to ignore the actual power relations between the rulers and their secret administrations, with the belief in the latter’s unfailing subordination, and unconditional sense of patriotism. It has functioned as a way to dismiss the practices of violence and manipulation and to focus on the construction of intelligence through data collection and extraction of information. Secret services became a kind of ordinary administration managing exceptional situations and obliged to be covered by secrecy for good reasons. The men in the shadows were therefore conscientious, like any other citizens, and very concerned with rules and ethics. They were ‘civil servants’, and among the most dedicated to the nation. This sanitised vision had a lot of advantages for both the analysts

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and the services themselves, but it was so well diffused that it was also ‘unattractive’ for recruitment, since the banal and the boring are often correlated in the social imaginary. Nevertheless, to show the real life of the services by opening up the archives after a ‘sanitation period’ has been a way to maintain the flame of the mission, and books by historians on secret services have been sometimes transformed into a tool of promotion for recruitment, evoking the sense of sacrifice of the shadow soldiers.

Legitimate Research? Waiting for Disclosure and the Role of Historians Taking seriously the living dimension and the organisation of the different secret services and having, in most liberal countries, the possibility to access archives, it is no surprise that historians have strongly populated the field of research on intelligence services. Clearly, historians have succeeded in doing in-depth research, and they have given more accurate pictures of the activities of these services than the popular stories of novels or memoirs by some insiders. The history of the First and Second World Wars is not the same anymore, now that we have the archives of these services. In the United States, the role of the CIA in Latin America in the 1970s is now even more well known than before, but clearly it does not help the service; rather, it justifies the strong critique they received at the time by NGO coalitions and in parliamentary enquiries, which put constraints on some of their more violent actions. Former secrets, even if considered irrelevant for the present, still attract attention, not only for the specialists but for a larger audience. Some historians of the present have not only given us a gist of the routines of the actions of services by reporting empirically on the archives to which they obtained specific limited access, but they have also shed light on some of the reasons, previously unknown to the public, explaining their actions. They have also theorised the day-to-day routines and understood better the constraints and freedoms given by secrecy, the impact on the personnel of some illegitimate actions and their associated trauma, as well as the specificities of these bureaucracies which cannot be assimilated to others. This empathy with the persons living at the time is central to understand the effects of the decisions made by the services themselves. Historians are, in this regard, far from the rational choice theory and the false neutrality presented in political science.6 In order to fill the gap between historical research and testimonies of the present day, however, it was through ‘fictional’ novels and movies that the narratives of the services’ secret violence were evoked. Hollywood movies have set up a tradition of popular culture which is still the first source of ‘information’ when people are asked about their visions of secret services (Taylor 2008; Willmetts 2019; Boyd Barrett et al. 2011). The ‘license to kill’

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narrative has ignited the imagination of millions and millions of people, and still continues to do so. The context of opposite ideologies during the Cold War has framed the actions of espionage and counterespionage between governments as the main activity of the ‘secret’ services. Hence, the aesthetisation of the Cold War professionals of violence coming from the state has followed the plots of murder stories but with a sense of heroisation and a zest of international politics. Mediatic fictions have thus given back to the actors of the services this extra ‘soul’ that the geopolitical narratives obscured by neglecting their lives and by reducing them to instruments of the state. They have given to the services a more autonomous character and even a status of ‘heroes’, free from bureaucratic rules and led only by their conscience of the ‘art’ of their task sanctioned by the recognition of their peers (and even their adversaries). They have been seen as heroes beyond normal rules, as exceptional men and women. Narratives of novels and movies have certainly evolved, and are now less caricatural, but they forged ‘legends’ of their own, often in partnership with the strategic communication of the services themselves, especially when they needed to recruit personnel for enhancing diversity (Blistène 2018). The two opposite images given by political science and popular culture, in fact, reinforce each other by their very distinction between, on the one hand, the insistence on the ordinary world of a bureaucracy of information done by intelligence professionals and, on the other hand, the exceptional world of an elite of state secrets always in action. This division of tasks has not been genuine, it has helped to maintain the fascination of secret violence, which attracts the imagination of populations and candidates, while describing a mode of legitimacy based on the sacrifice of doing an obscure job of adviser and enforcer of the prince, with no real margin of manoeuvre, where secrecy is never a mark of autonomy, but of ‘duty’.

Intelligence Studies and the Sociology of Secret Organisations The narratives of the sociology of organisations in intelligence scholarship considered therefore that the different services abroad and on the inside were de facto an ‘intelligence community’ assigned to different functions and missions that all concurred to ‘national security’.7 They did not refuse the geopolitical frame but insisted that the intelligence services had their own decision-making process and were not just obedient soldiers. They were fundamentally important for the decision-making process, and this process had to be analysed as such to show their roles and to make them different from mercenaries and black squadrons. The notion of an ‘intelligence community’ based on an intelligence cycle was describing their roles as neutral ‘experts’, as ‘masters’ of strategic information both on the inside and outside of the border. Despite being divided between mainly military and external intelligence services focused on threats from abroad, and police and internal intelligence services centred on internal ‘disturbances’ of the political order,

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they were, according to this narrative, nevertheless in ‘good intelligence’ and met regularly to exchange information. They succeeded in building ‘trust’ and a sense of duty among all the participants. The thesis of an intelligence cycle, even if more subtle than others, by its interest in the design of the circuit of information, has certainly helped to get a grip on who is doing what, and has allowed to do a ‘sequencing’ of the routines as a sort of DNA of the secret services, without breaking (or trying to uncover) secrets. This can be considered as a smart move, and the contacts between intelligence scholars and the different services have been facilitated through this approach. This nevertheless comes with the issue that they continue to believe, and perpetuate, the discourse of a ‘community’ working solely on ‘information’ and ‘producing documents for intelligence’, invisibilising the use of secret violence and manipulation. In addition, by considering that the different secret services have a similar involvement concerning the participation in the national intelligence cycle, they have reinforced the previous doxa of the national interest. The notion of intelligence cycle has therefore, in some ways, tried to cope with the paradox of speaking about secret organisations in the same way as other bureaucracies, and the focus on secrecy and not coercion has minimised the structural differences between the missions of the services. This has led scholars to accept too quickly that the military, police and SIGINTInternet services were effectively one unique field organised around the national boundaries of secrecy and that from the 2000s the struggle against terrorism has become the main mission for all of them (Hulnick 2006; Phythian 2013). These assumptions are only partially true. Many excellent monographies on some services inside the anglosphere countries exist, and they have shown how routines are organised inside a service to combat the unease and doubt about the real purposes of some tasks of surveillance asked by politicians in the name of national security and the competitions that politicians entertained between services to follow their own interests.8 We are far from the experience of trust between services that would create ‘one intelligence community’. This is also the same illusion concerning the sacred union against terrorism. If the discourse on global counter-terrorism has been widespread and has organised a large part of the literature, careful research shows on the contrary that it is not a strong vector of cooperation but rather more of a catchword to continue other activities (Donohue 2008; Bigo et al. 2011; Pomarède 2020). Even, in the rare cases where the different services accept the necessary existence of a structure of coordination, more or less centralised, often due to the pressure of the politicians, they often refuse that these coordination structures have any hierarchical role. The coordination structures, as well as the different oversight organisations, do not succeed in effectively creating a form of subordination of the services. They all depend too much on the ‘good will’ of the latter who want absolute control over the dissemination of their ‘results’. The paradox is therefore a reversed hierarchy and a weakness of the upper

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structures of coordination, even when they include some politicians inside their meetings to give them more symbolic power, like in the United Kingdom. This is not to say that coordination and oversight structures are irrelevant, but they are put in a situation in terms of power, personnel, and budgets where they cannot be effective in terms of action. Coordination structures often reinforce the competition around the hierarchy of priorities, and if they frame a general language which constrains intelligence actors, they are not controllers and do not ‘fusion’ the intelligence at all. Coordination structures are like tokens by which the symbol of a community exists, and they can be presented to the services as a proof of their neutral expertise, and to the politicians as proof that they are always in charge. In practice, the distribution of alliances is more ideological and partisan than it is accepted in the literature. Politicians and some services often act together against other politicians and services, even if they are in the same government. The history and pre-existence of a collaboration may play against a new government whose members (especially in the case of political coalitions) can be under surveillance of their own services like in Switzerland, or in other cases when each ministry will align first with their own secret services, like in the post-2001 situation in the United States. Coordination is not the proof of a community; it is a political display of importance. For the services excluded from the coordination, it is a proof of marginalisation and danger for their budgets and missions. For the services who are represented in the structure, it is the place where it is necessary to be in order to access resources (budget, specific technologies or personnel) and, even more importantly, the place to legitimise their discourses via the institutional competition concerning the hierarchy of dangers. In some ways, intelligence coordination structures are the equivalent of a stock exchange, but a stock exchange of fears, risks, dangers, and visions of the worst-case scenarios. When a common agreement on the primacy of a given threat emerges, it is usually the result of a very specific convergence between some actors populating the world of politics and the world of secret services. Instead of presenting the different cases as if politicians and secret services operate in different worlds and at different levels, it is necessary to see the interdependencies between them as well as the role of multi-positioned actors. As I will explain, this sociology of professional guilds and centrifugal transnational dynamics give a more profound description but obliges in each case to enter into the details of the connections, disconnections, and double games that actors play, especially during periods of de-sectorisation of the inner struggles and new alliances connected with political fights (see also Bigo 2016). The sociology of secret organisations is at an end if it reduces ‘intelligence’ to the activities of the services alone and believes that the formal flowchart effectively represents the practices, and accepts, by the same token, the narratives which are the most common inside the services as expressions of truth. Accepting this truth regime based on ‘trust’ that the insiders develop to speak about their task of information and intelligence-making, is a

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serious problem. What can be said is that information processing is certainly the lowest common denominator of the activity of (some) secret services but is not able to offer a synthetic view of their arrangements and competitions. This vision forgets the goals and consequences of these activities dealing with violence performed in secret. Despite its descriptive interest, this reasoning of the intelligence cycle, which describes the mundane routines quite adequately when looking at a singular service, is unable to understand the relations between the services and the strength of their transnational links. In total, the cost of the intelligence cycle approach has been higher than its success in deciphering the activities of secret services. The ‘cycle’ has de facto masked key transformations of the 1990s and 2000s. First, the acceptance of a model of streamlining information into intelligence, by drawing implicitly the boundaries around the national states, has put into shadow the transnational dynamics at work with the reinforcement of interdependencies and the role of digital information. Second, the framing of threats and the categorisations that services use to describe the same phenomenon, are tremendously different when it comes to justifying their missions and budgets. Symbolic struggles are framing the understanding of data, and therefore of their intelligence product. It is not by chance that police intelligence services are insisting on the role of minorities inside their own country and on radicalisation, while military intelligence services frame the struggle on terrorism like an asymmetrical war. Critique of secrecy is certainly useful and recent works have allowed us to compare the weight of secret rules in different social universes and in political processes. But to the extent this research considers power relations, they are circumscribed to the insiders of secrecy. When the central question is about the interdependence and mediations that link all the actors involved in the use of violence performed in secret, and its (il)legitimity, an international political sociology of secret services is first obliged to recognise its own limitations and to admit that the inner knowledge cannot be obtained directly. But the option is not to negate the role and autonomy of the actors of secret services like in geopolitics, or to focus on the main routines like Intelligence Studies, or to wait 20 to 50 years – or more – to have access to documents like the historians. Therefore, what to do?

An Interpretation of Contemporary Configurations of Secret Service Practices based on an International Relational Sociology I propose in this last part to have a more reflexive approach and to reconcile the study of secret services with the sociology of state construction and its modes of legitimation. This suggests analysing the structural evolution of the use of violence by actors of the state, performed in secret, internationally

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and nationally. This relational sociology of secret services and their different transnational fields will question differently the relations between the services and their politicians, their forms of asymmetrical collaboration, their social use of technologies, and their habitus developed by living in a sphere of opacity and putting at a distance the rules of democracy and rule of law. This international political sociology maybe, in that case, a way to address the key questions of impunity, democratic boundaries of the use of violence, relations with the rule of law and accountability, and the possibility of independent bodies of controls beyond the idea of a simple oversight, considering that they are not the margins but the core of what needs to be studied. The analysis of interdependence has been done through relational sociology for a while, but it is even more important nowadays. As long as the interdependence between the actors in the different secret services dealing with military affairs, anti-diplomatic practices and spying, surveillance of (violent) clandestine actors was organised in ‘stove pipe’, i.e., compartmented and with limited shared information, the consequences of some violent, manipulative or intrusive actions had almost no impact on the other services (Nicander 2011). Scandals were focusing on one service and some politicians and were contained nationally, even if the ‘stay behind’ affairs already show that a scandal in Italy may have repercussions in Switzerland, Belgium, and backfire far beyond (Ganser 2006). The ‘Echelon’ affair, through its scale and because of the nature of the electro-magnetic signals and satellites involved, already demonstrated that interdependence between secret services in networks, even if asymmetrical, can affect the perpetrators and even the principals, obliging the latter to become a public voice and to justify their strategies internationally (Campbell 2000). Some governments realised after these kinds of affairs that they did not really know what their own secret services were doing practically and that they have been ‘inspired’ (activated) by their allies’ counterparts abroad via transnational links more or less regulated. Switzerland, Australia, New Zealand, Belgium, and even Germany became more and more aware politically of the weight of the alliances between secret services acting as ‘satellites’ of different US agencies, themselves in competition and organising their own ‘corridors of information’ (Rayner and Voutat 2019). Long before the advice of the 9/11 Commission to replace the stove pipesystem with increased interoperability of data (including so-called ‘fusion centres’), the configuration of the social spaces of secret services had expanded far beyond the well-known Five Eyes and affected all the countries in the world in regional zones more or less related with Western alliances’ interests. The scale of surveillance, even before the Internet, has created a routine for exchange of data between the different services having the same occupations, while creating more autonomy and tensions between the agencies at the national level (Bigo 2019). The configuration of the bureaucratic practices of the services along the lines of their professional crafts

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has reinforced their transnational dimensions, uncontrolled by the national political leaders, who, faced with a fait accompli, preferred, at least for some of them, to cover up their services rather than to acknowledge their ignorance or at least the relative autonomy and room for manoeuvre that the coalitions of services have among themselves (Möller and Mollen 2017; Chadwick and Collister 2014). The enlargement of interdependencies has created new constraints for the actors, which have to play different (double) games, and especially the leaders of democratic governments are obliged to declare their indignation towards measures done by other states while reduplicating them abroad. This is not hypocrisy in the psychological sense of the term, but an effect of the structure of the configuration of relations. The enlarged exercise of power does not bring more autonomy but more interdependence. I would like therefore to suggest we insert and reframe Intelligence Studies as a specific case of the sociology of states along the lines drawn by Norbert Elias and those who followed him. It is here important to explain in a nutshell some of the basic arguments of Norbert Elias to see why we should make such a connection. Except for work of Ben Jaffel (2019), Norbert Elias is almost unknown in the literature on secret services. Elias insisted a lot on the mechanisms of enlarged interdependence which means that a society of individuals can in no way be explained by an individualistic perspective which would reduce the society to the sum of the interactions between these individuals. He confronted all the proponents of methodological individualism by showing the untenable contradictions of their position, be it Gabriel Tarde, Schumpeter, Watkins, Parsons, or Boudon. The foundations of a certain anglophone political science are then irreparably questioned and with them part of the logic of geopolitics and grand strategy based upon the rational action theory allowing the emergence of a single voice for a state actor. By the same move, Elias pointed out that the methodological holism giving society, or the state, or the international, a personified essence is also erroneous insofar as it wrongly sanctifies a fictitious and transhistorical identity transforming into ‘actors’ what are in fact collective representations of conflicting social spaces in permanent change (Elias 1983). Beliefs in a certain strategic national culture or the stability of geographical structures in politics are then also disputable. Norbert Elias and most of the authors of relational sociology challenged the position of Emile Durkheim, Ernest Gellner, Roy Bhaskar, and Alan Garfinkel, who have argued to varying degrees that social entities like nations and societies have causal powers that are independent of, and override, the causal powers of the individuals who comprise these entities. For Elias, Emirbayer, as for Pierre Bourdieu and even Charles Tilly, the state does not act, other than metaphorically. It is summoned by its agents, its spokespersons, as a prosopopoeia, which allows them to legitimise their actions. What is essential, therefore, is to understand the dynamics of the interdependent relationships that determine the boundaries of a certain social space, its historicity and the

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conflicts of positions that take place between actors and often within themselves concerning their changing identity with age and the social trajectory of their lives. Only the relations of mimetism and distantiation between these groups explain how spokespersons can emerge and claim to embody them in public. Their authority depends on the symbolic power based on the recognised ability to represent more than themselves, and the field of the state is, in most of the cases, the space where the conversion of other forms of power coming from economic, cultural, bureaucratic, political positions, meet and fight for the control of the hierarchy of the social order. But this public representation, which claims to unify the ‘social body’ and give it meaning, does not exhaust the resources of violence and circulation of power of the dominant actors of the configuration, and it generates the possibility of using the spectacular violence of punishment, from public killing to imprisonment and loss of nationality, or, on the contrary, of reserving it for occasions that must remain secret, so as not to compromise the idea of representation of the people as such.9 The strength of the state, as a form of symbolic power, lies in the fact that the boundaries of the political field occupied by professional politicians never really coincide with the resources of the secret violence delivered by the state’s representatives. The configuration that allows secret services to exist is then particularly important as the legitimacy of power depends on a system of representation and elections, banning in a democracy the use of force for the private interests of those in power. The interstitial space of the secret services is therefore even more significant in a representative democracy than in authoritarian regimes, which are more willing to display their own violence. If one wants to analyse the specificity of this configuration of the use of secret services in democracy nowadays, then one has to analyse the dynamics of the transformations of the field of politics and the internal relations between government and political parties’ lives, as well as the capacity for the legislative and the judiciary to have effective functions of control. The relations between the field of politics and the field of power involves analysing the capacities of spokespersons to personify or not their institutions and to analyse both the structures of the capital under which each actor has the capacity to intervene in the use of violence performed by state agents. This means to assess in each case the transformations of power relations affecting the public and private actors and the emergence of assemblages where the very distinction of public and private disappears and is replaced by a (co-)constituted space where multi-positioned actors straddling this boundary are in position to frame the decision-making process of the use of violence. In the construction of profiles of ‘useful’ data for watchlists of suspects, as well as for their interception, collection, and retention, private companies are crucial, and often employ former secret service agents. This is key to understand some of the delinking of the actions of

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the services with the politician circles. It also explains why some actors, socialised differently, develop a fragmented habitus and dare to become whistleblowers, despite the fact that they were highly paid and respected in their inner circles. They are not traitors, they are more the symptoms of the symbolic struggles for having the last word at the highest levels of decision making and in transnational networks (in informal clubs, organised professional guilds, regional and international bureaucracies) connecting intimately the public and private actors. The digitisation of data has exponentially multiplied the capacity to retrieve traces from a very large number of individuals. It has changed the scope and speed of the treatment of information, and the data politics in so many domains of lives which directly affects citizens’ expressions of opinions, public behaviours, and relations with banks and commercial entities. Spying activity is almost residual even if some professionals recycle their knowledge through cyberattacks. As the Snowden disclosures showed, the ease with which intelligence services could target suspects of potential crime or illegalities has radically changed the ratio between the people watching and the people under watch.10 This large-scale surveillance of citizens and foreigners is a common practice that the non-SIGINT services have now also integrated in their routines, even if it creates more resistance in some secret services who prefer the selection of a small number of ‘priority’ targets with effective monitoring and infiltration, instead of centralised recourses of electronic surveillance via the use of artificial intelligence. Privatisation and digitisation have also enlarged the scope of the use of violence in terms of personnel assigned to surveillance and in terms of technologies built to target more people than before and to construct profiles of suspicion in the name of prevention and prediction. Nevertheless, the interactions between the different actors have been possible to organise, supervise and even oversee as long as their ambition was to control local or national events, specific to the missions of one service. What has changed is the scope of interdependencies through the transnational sharing of information between secret services of various countries. Even if the sharing of information is highly asymmetrical within these networks, with a huge advantage for the central nodes – often the US agencies – this sharing has become routine. Interoperability of databases, through a change in the legislations favouring permanently an easier access of the secret services to the information gathered by the police, border guards, and welfare institutions, have rendered intelligence completely dependent on the ‘assemblage’ by of information coming from each ‘user’. The old vision of personal and mutual trust cannot resist the objectivisation of rumours, errors, junk news in the profiles generated by ‘machine learning’ algorithms, nor the belief by some managers that a technology supposedly capable of sorting in information and automatically building indexes of correlations could serve as a substitute to conventional truth regimes.

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Conclusions As everyone is becoming a part of the assemblage of watchers, so are they, at the same time, becoming a part of the assemblage of potential targets. And this second group is by far larger than the first one, as many people ignore that they are under watch, at least potentially, by the association of one of their attributes with a pattern of suspicion and independently of their full personality and identity. The ‘dissociated’ man and woman are no longer a science fiction novel. It is the fate of the data points produced from our personal data, then often anonymised, globalised, and profiled to find potential criminal behaviour by association of weak correlations. Thousands of people, if not millions, end up at a local checkpoint or on a specific watchlist of suspects – be it at the airport, at their social services provider, or their bank. They may not be arrested, they may not be excluded from some ‘privileges’, they may not even be under a procedure of permanent surveillance, but the knowledge that they are not anymore innocent, yet potentially suspect without evidence, is transforming the sense of intimacy, privacy, and public space. In addition, this is not distributed equally. Traditional stereotypes do not disappear from past data, foreigners do not have the same safeguards as citizens: class, race, location, and gender continue to structure the patterns of big data and are not eliminated through technology. The sense of not living anymore in ‘open democracies’ and to have depreciated conditions of life is the result of these different assemblages which are not anymore controlled by the core group establishing these tools of suspicion. The dissemination of suspicion and unease, as well as the feeling to be complicit with it, generates both resignation and anger against authorities. The brutality of violence may have diminished, but the symbolic violence has put everyone in the mind of suspicion, without the reflexive capacities of (some) professionals of security. The effects of the structural extension of interdependencies beyond any recognisable network, as exemplified through the logics of contemporary intelligence, are changing the practical conditions of democracies. We cannot forget either that some potential targets are ‘actualised’, that they still suffer from physical violence, but often delivered at a distance. If justified by certain evidence, they are part of the violence inherent to the discourses of ‘eradication’ of all the enemies. But some targets are tangential, some are considered as side-effects. These collateral victims enter into a calculus between the importance of the identified ‘target of importance’ and the chance to eliminate it again, and if this chance is considered critical, then drone strikes are supposedly justified. The Guantanamo files have also demonstrated this logic of suspicion-by-association and proved that individuals have been captured and detained. They may be not the intentional targets of this violence performed in secret, but they are the result of a process. Studying this process needs to be the goal of a renewed study of intelligence and secret violence.

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Notes 1 For a distinction between field of power and the political field see Pierre Bourdieu, John B. Thompson, and Gino Raymond’s, Language and Symbolic Power (1991), and Pierre Bourdieu’s On the State: Lectures at the Collège de France, 1989–1992 (2014). 2 This joke-like expression says a lot about gender inside some secret services. It shows the kind of prejudice of this universe to women. It also essentializes a specific ontology about human nature, spying and violence in secret. It creates a kind of male complicity with sectors of journalism (see e.g., Knightley 1988; Dover 2014). 3 Horn’s paper stands out as highly insightful on the distinctions between arcanum, secrecy, and political theory; however, it is structurally reactionary. While I disagree with the conclusions regarding the justification of today’s practices, it is a paper which addresses the questions lacking so often in IS. 4 In 1987, the Netherlands accepted officially that they have secret services, after a long period of full denial. For a detailed analysis, see Gerhard Schmid’s ‘Temporary Committee on the ECHELON Interception System’ (2001: 194). 5 Clearly, the Nordic and the anglosphere services were the first to adjust to these changes, but in the Southern countries of Europe, including France, some services, still now, have spokespersons who want to continue with this fantasy of a world, outside the normative world of human beings, that they call, in some ways ironically, the ‘real’ world. 6 Resonating with the accounts collected by historians, it is sometimes possible for sociologists to show some elements of this ‘moral suffering’. For example, one practitioner said at the end of an interview with me: ‘No one comes out unscathed from life in the secret service, not only because of the daily secrecy towards loved ones, but because of the actions, or knowledge of special actions, that cannot be told to anyone, and which come back in nightmares. I am not a hero, but I am not just a civil servant like any other one. I have been through such experiences that people who have not lived through them cannot understand our world, and politicians even less than others. The same goes for those who have other tasks in the services and who see less of the results of what it means to write a file on someone’. 7 Many journals have used the terminology of ‘intelligence community’ as an undiscussed label. To consider only one of the most famous, Intelligence and National Security, 932 articles have used the terminology of ‘intelligence community’ when discussing profoundly different types of services and regimes. Governments have co-produced the terminology with academics and used it for their reports and sometimes in their laws. Among many documents, and to avoid the illusion of a supposed novelty of the post-9/11 era, see e.g., ‘The Intelligence Community: Investigation and Reorganization’, Volume XXXVIII, Part 2, Organization and Management of Foreign Policy; Public Diplomacy, 1973–1976 (Secretary of State Office of the Historian), https://history.state.gov/historicaldocuments/frus196976v38p2/ch1. 8 Among so many examples, see, for France, the existence of a special service organising the surveillance of the persons knowing the existence of François Mitterrand’s daughter. Each country has regular scandals around the intermingling of the personal interests of the government or key politicians and the national interest. 9 See on this topic, François Hollande’s Les leçons du pouvoir from 2018. 10 See also the Introduction chapter in this volume.

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References Blistène, Pauline. 2018. ‘Le secret comme ordinaire: Le Bureau des légendes et la modification du regard’. A contrario 26 (1): 115–133. Ben Jaffel, Hager. 2019. Anglo-European Intelligence Cooperation: Britain in Europe, Europe in Britain. London: Routledge. Bigo, Didier. 2016. ‘International Political Sociology: Rethinking the International through Dynamics of Power’. In Tugba Basaran, Didier Bigo, Emmanuel-Pierre Guittet, and R. B. J. Walker, eds. International Political Sociology: Transversal Lines. London: Routledge. Bigo, Didier. 2019. ‘Shared Secrecy in a Digital Age and a Transnational World’. Intelligence and National Security 34 (3): 379–395. Bigo, Didier, Sergio Carrera, Elspeth Guild, and R. B. J. Walker, eds. 2011. Europe’s 21st Century Challenge: Delivering Liberty. Farnham: Ashgate Publishing Ltd. Bourdieu, Pierre. 2014. On the State: Lectures at the Collège de France, 1989–1992. Cambridge: Polity Press. Bourdieu, Pierre, John B. Thompson, and Gino Raymond. 1991. Language and Symbolic Power. Cambridge: Polity Press. Boyd Barrett, Oliver, David Herrera, and James A. Baumann. 2011. Hollywood and the CIA: Cinema, Defense and Subversion. London: Routledge. Butler, Judith. 2009. Frames of War: When Is Life Grievable? London; New York: Verso. Campbell, Duncan. 2000. ‘Inside Echelon: The History, Structure, and Function of the Global Surveillance System Known as Echelon’. Telepolis. Chadwick, Andrew, and Simon Collister. 2014. ‘Boundary-Drawing Power and the Renewal of Professional News Organizations: The Case of the Guardian and the Edward Snowden NSA Leak’. International Journal of Communication 8: 22. Demarest, Geoffrey B. 1995. ‘Espionage in International Law’. Denver Journal of International Law & Public Policy 24 (1995): 321. Der Derian, James. 1992. Antidiplomacy: Spies, Terror, Speed, and War. Cambridge, MA: Blackwell. Donohue, Laura K. 2008. The Cost of Counterterrorism: Power, Politics, and Liberty. Cambridge: Cambridge University Press. Dover, Robert. 2014. ‘The World’s Second Oldest Profession: The Transatlantic Spying Scandal and Its Aftermath’. The International Spectator 49 (2): 117–133. Elias, Norbert. 1983. The Court Society. New York: Pantheon Books. Ganser, Daniele. 2006. ‘The Ghost of Machiavelli: An Approach to Operation Gladio and Terrorism in Cold War Italy’. Crime, Law and Social Change 45 (2): 111–154. Grey, Stephen. 2015. The New Spymasters: Inside Espionage from the Cold War to Global Terror. St. Martin’s Press. Gros, Frédéric. 2012. Le principe sécurité. Éditions Gallimard. Horn, Eva. 2011. ‘Logics of Political Secrecy’. Theory, Culture & Society 28 (7–8): 103–122. Hulnick, Arthur S. 2006. ‘What’s Wrong with the Intelligence Cycle’. Intelligence and National Security 21 (6): 959–979. Jones, Luke. 2014. ‘The Time When Spy Agencies Officially Didn’t Exist’. BBC News. https://www.bbc.com/news/magazin29938135 Knightley, Phillip. 1988. The Second Oldest Profession. Recorded Books.

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Krulic, Brigitte. 2010. Raison(s) d’État(s) en Europe: traditions, usages, recompositions. Peter Lang. McCoy, Alfred W. 2012. Torture and Impunity: The U.S. Doctrine of Coercive Interrogation. University of Wisconsin Press. Möller, Johanna, and Anne Mollen. 2017. ‘“Please Stay Frustrated!”: The Politicisation of Digital Technologies in the German NSA Debate’. In Risto Kunelius, Heikki Heikkilä, Adrienne Russell, and Dmitry Yagodin, eds. Journalism and the NSA Revelations. Privacy, Security and the Press, pp. 113–127. London: I.B. Tauris. Nicander, Lars D. 2011.‘Understanding Intelligence Community Innovation in the Post-9/11 World’. International Journal of Intelligence and CounterIntelligence 24 (3): 534–568. Phythian, Mark. 2013. Understanding the Intelligence Cycle. London: Routledge. Pomarède, Julien. 2020. La Fabrique de l’OTAN: Contre-terrorisme et organisation transnationale de la violence. Editions de l’Université de Bruxelles. Rayner, Hervé, and Bernard Voutat. 2019. ‘L’État”fouineur” saisi par le droit: Dénonciation et normalisation du renseignement politique intérieur en Suisse (1989-2000)’. Cultures & Conflits 2–3 (114–115): 139–170. Schmid, Gerhard. 2001. ‘Report on the Existence of a Global System for the Interception of Private and Commercial Communications (ECHELON Interception System)’. European Parliament Temporary Committee on the ECHELON Interception System. https://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+ A5–2001-0264+0+DOC+XML+V0//EN Taylor, Stan A. 2008. ‘Introduction: Spying in Film and Fiction’. Intelligence and National Security 23 (1): 1–4. Tilly, Charles. 2003. The Politics of Collective Violence. Cambridge: Cambridge University Press. Todd, Paul, and Jonathan Bloch. 2003. Global Intelligence: The World’s Secret Services Today. Zed Books. Warner, Michael. 2014. The Rise and Fall of Intelligence: An International Security History. Washington, DC: Georgetown University Press. Willmetts, Simon. 2019. ‘The Cultural Turn in Intelligence Studies’. Intelligence and National Security 34 (6): 800–817.

Part IV

Conclusion

12 Conclusion: Towards New Intelligence Studies Hager Ben Jaffel and Sebastian Larsson

Introduction Throughout the chapters in this book, we have sought to fulfil two interrelated aims: to explore intelligence in contemporary times, and to frame alternative lines of enquiry to Intelligence Studies (IS) based on observation of the people and practices of intelligence. While IS has certainly advanced knowledge on intelligence in many ways, especially from a historical viewpoint, existing literature has not sufficiently kept track of intelligence as it is done today – not only regarding what happens within and between intelligence actors, but also with those who have a stake in intelligence or are targeted by it yet live their lives or carry out their professions far from the state and its secret services. In other words, there is a gap between conceptions of intelligence in IS and the actual practices on the ground. This book has therefore been necessary to provide a more comprehensive account of intelligence and complement a partial picture of intelligence in IS that favours certain actors, stories, and understandings at the expense of others. To be sure, many of the actors and practices discussed over the previous pages are not entirely new. They have been around for some time now but have escaped the attention of IS for a number of reasons. The main one is the priority given to a strategic conception of intelligence that mainly focuses on the experiences of intelligence services and Anglo-American relationships while clouding other and sometimes divergent meanings of intelligence. The changing problematisation of intelligence is now associated with practices of flow management and anomaly detection in counter-terrorism and other ‘fights’ for security which are no longer just about counter-espionage. As shown, police officers, prison guards, citizens, ordinary welfare workers, IT specialists, and many others, now claim intelligence-related skills and competencies, willingly take on the role of an intelligence agent, or are forced into dealing with the labour of intelligence collection. This aggregation and multiplication of ways of ‘doing’ and ‘being’ generate other practical senses than those underpinning notions of intelligence in policymaking and national security. Despite these developments, no book to date has seriously considered the social dynamics at work in the diffusion of contemporary intelligence in DOI: 10.4324/9781003205463-16

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uncharted territories, its transforming regimes of justification, or the expansive reach of intelligence actors and their practices. In established IS literature, the ‘usual’ intelligence services continue to be investigated through rationalist and performance-oriented frameworks inspired mainly by political science, focusing on services’ relative utility and effectiveness, paying little or no attention to the services’ underlying socio-professional dynamics or the effects of their practices. Nor has any previous book seriously opened up the study of intelligence to actors, activities, and sites outside the state-policy framework and the usual secret services. In established IS volumes and book series, intelligence work continues to be treated as something equated with the work of state bureaucracies in the ‘intelligence community’ alone. Actors from other fields and sectors – even if they operate with a very similar know-how or share similar struggles – are disregarded as not belonging to this community. According to this IS caricature, intelligence is effectively about pre-determined conceptions of national security and military strategy, and should not, in contrast to what we have contended elsewhere, be regarded as an open-ended social phenomenon and space (Ben Jaffel et al 2020; Introduction, this volume). Our renewed empirical perspective on intelligence in this volume was made possible by mobilising an analytical approach that moves down in scale to focus on the less visible yet most relevant units of analysis: social actors and their practices. By placing the practical and human dimensions of intelligence at the heart of the investigation, it is possible to explore the ‘inside’ of intelligence and to capture the multiplicity of actors entangled with it in their daily practices, relations, and struggles. One can thus access far more of the ‘pieces’ that make up the everyday social life of intelligence – the crafts involved, the actors’ sense of their job, their lived experiences, their feelings and contradictions, hesitations and expectations; in sum, the full range of ‘incarnated stuff’ that usually go unnoticed among existing state-centric and rationalist perspectives. With sociological and anthropological approaches for instance, what and who produces and enacts intelligence becomes alive, visible, and searchable. We may begin to grasp not merely intelligence actors’ daily activities, but also, in a larger sense, how their overall social and professional disposition and habitus is relationally generated and shared (Bourdieu and Wacquant 1992), and how this may lead to the forging of social chains of interdependence (Elias 1983) or the formation of certain national and transnational social groups, networks, or guilds (Bigo 2016). We may perceive how the intelligence profession is ever-changing and made up of new and old skillsets and abstract knowledge, and how it is in constant competition with other professions in the larger ‘system of professions’ in society (Abbott 1988). We may study how intelligence is not simply made up by homogenous actors with coherent dispositions, but how it also involves ‘plural actors’ with a fragmented professional disposition and a sense of being

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‘out of place’, perhaps because they, like Snowden, are entangled in the intelligence practice yet seek to resist it (Lahire 2011). Of course, there is no need to be a trained sociologist or hardcore social theorist to understand the relevance of our analytical line to the study of intelligence. No matter what we think, there is one reality we cannot escape: intelligence does not function by itself. Intelligence is what people make of it. As a result, if we are to understand how intelligence operates in practice, we need to pay attention to the people behind intelligence. This assumption led us to formulate the guiding research questions that have been explored throughout this book: what is intelligence today, and who does it? Whom does it affect and how?

Expanding the Analysis of Intelligence: From the Local to the Global to the Relational and Transversal Guided by these questions, each chapter acted as an exploration of intelligence as a social space sustained by a diversity of actors whose stakes, relations, and struggles (re)define the meaning and practice of intelligence. The introduction paved the way by questioning established assumptions within IS about intelligence’s functions in the social world – about who does it, how, why, and in relation to which kind of ‘threats’ – and by laying the ground for a new research agenda. To capture its true empirical richness and heterogeneity, this move involved re-thinking intelligence and re-articulating it along other lines than those promoted by IS, calling for a more extensive research designs including (but certainly not limited to) approaches inspired by sociology, anthropology, and ethnography. These are, at least within IS, unconventional approaches in the sense that they from the outset have the merit of focusing on the actors and practices behind intelligence. By mobilising these kinds of approaches to the study of intelligence, the introduction chapter sought to problematise IS and show how to break with the discipline’s historical Anglo-American-centrism and its long traditions of reinforcing state ontologies and promoting functionalist perspectives that limit the question of intelligence to one of how to ‘improve’ intelligence services and assist policymakers. Chapter 2 was the first to enact this research agenda by questioning IS’ common sense on intelligence oversight and by mobilising a reflexive approach. By mapping the convergences in the reading of oversight by IS scholars, Leon Reyes showed how their position is insufficiently autonomous from the claims of intelligence services themselves. Further developing our collective approach, the chapter then provided additional methodological tools concerning how to escape common-sensical, established views in IS. Following the insights of Pierre Bourdieu on reflexivity, it proposed to interrogate the dispositions of scholars who study intelligence, that is, how specific viewpoints and life experiences stemming from their positions in the academic field in particular encourage a certain vision of oversight. It

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concluded by prompting scholars of intelligence to treat oversight as a social practice in its own right, exploring it from the bottom-up and stretching the scope of enquiry beyond institutional overseers. Chapter 3 took a step further in the reformulation of intelligence. Offering a detailed illustration of how to analytically employ the approach set out in the previous two chapters, it situated its analysis in an empirical case entangling intelligence with police and politicians. In investigating these intersections historically, McVay traced the socio-genesis behind the emergence, and implementation, of a pre-emptive intelligence logic within British police forces: Intelligence-Led Policing (ILP). Rejecting any essentialisation, the chapter suggested that ILP’s inception is a conjunction of antagonisms within and between the political field and the security field. On the one hand, the wave of decolonisation in the British empire triggered political disputes over how to conceive the citizenship of ‘new commonwealth’ migrants, leading to changing political narratives about their social status, once ‘citizen’ and later ‘illegal’ immigrants. On the other hand, this evolving classification found a particular resonance in the policing field where law enforcement services, hitherto marginalised in the field, interpreted political demands as an opportunity to import and legitimise pre-emptive intelligence strategies and reinforce their positions vis-à-vis dominant players accordingly. In sum, the chapter showed that intelligence practices on the ground outgrow disciplinary categories in IS and Police Studies, suggesting that the development of practices of intelligence is triggered by relations and struggles alien to the ‘intelligence community’. Chapters 4 and 5 expanded the examination of intelligence into the everyday and to social sites that intelligence scholarship usually neglects: civic spaces and prisons. Kaleem departed from interactions that take place in a classroom, a hospital, or a college and showed how counter-extremism strategies – here, UK’s Prevent policy – turn ordinary citizens and welfare workers operating in these civic arenas into street-level intelligence actors by assigning them a statutory duty to report signs of radicalisation. Her case strongly illustrated the transformation of everyday encounters into sites of intelligence collection, and how citizens are situated in shifting positions either as targets of intelligence or as generators of intelligence. Scheer also investigated counter-radicalisation but, this time, in the prison environment. Analysing the rise of prison guards as new intelligence actors in the French counter-terrorism system, it focused on the everyday work of ‘antiradicalisation units’ to detect and evaluate potential terrorist threats within the prison walls. Drawing on ethnographic observations and interviews, Scheer’s chapter illuminated how the prison staff ’s participation in intelligence practices is praised as a ‘war effort’ among the staff. More generally, he demonstrated how the implementation of intelligence objectives in the penitentiary detention system has fundamentally altered the role of the prison in society: from one of neutralising criminality to one of informing

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intelligence services about individuals and of participating in larger national security and counter-terrorism objectives. Chapter 6 expanded the scope of the investigation a step further by analysing the manufacturing and circulation of data in and among German police and intelligence agencies. Based on detailed interviewee material, it focused on the everyday settings and routinised methods by which German police not only generate and analyse intelligence data on internal threats and moving populations, but also disseminate it horizontally between regions. In doing so, the chapter managed to disturb conventional knowledge about the information sharing activities between intelligence services and law enforcement. If viewed narrowly from the experiences of the UK and US intelligence models, intelligence sharing appears like a strongly hierarchical activity. However, Hanon’s chapter challenged such assumptions in IS by showing that German intelligence sharing on the regional level is more of a non-hierarchical, horizontal, and digitised practice organised around interoperable data circulation. Chapters 7 and 8 continued to widen the empirical scope by dissecting, through sociological concepts and practice-oriented perspectives, the transforming role of intelligence services in a contemporary transnational context. Focusing on the intelligence apparatus in New Zealand, Rogers showed how it has become increasingly ‘transversal’ in recent decades. For instance, New Zeeland’s extensive intelligence collection activities are today justified less by matters of national security, and far more by diplomatic reasons and the supposed need to support the United States in counter-terrorism and global surveillance programmes. Another transversal line was identified in how New Zealand’s intelligence professionals have become increasingly dependent domestically on new commercial partnerships with private security companies, telecommunications providers, and so-called firms of national significance, illustrating that intelligence is far from limited to state actors alone. Focusing on the case of Sweden, Larsson then investigated transatlantic data exchanges and joint hacking operations involving the NSA and the Swedish intelligence agency FRA. Drawing on legal findings in combination with the sections of the Snowden disclosures that concerned Sweden’s involvement, the chapter concluded that US and Swedish intelligence actors are far closer sociopolitically and more interdependent practically and technologically than existing IS scholarship indicates. Destabilising the notion of a ‘special relationship’ between the United States and the United Kingdom as well as common perceptions about the Five Eyes alliance, findings showed that FRA’s close proximity to the NSA in an emerging transnational guild of intelligence has less to do with Sweden’s high-political standing and allegiances, and far more to do with FRA’s specific material capabilities, technological know-how, their long history of conducting data collection and secret hacking on a routine basis, and their ability to understand and work around domestic signals intelligence legislation. Chapters 9 and 10, for their part, pushed our investigation of contemporary intelligence practices into new conceptual territories. Hoffmann

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adopted a socio-legal approach and human rights perspective to explore the legal practices and struggles that underpin current dynamics of intelligence gathering. More specifically, the chapter problematised the contemporary playing field of intelligence agencies – the Internet – as a digital space that is currently being regulated and reconfigured through struggles for human rights, civil liberties, and privacy, by both national and supra-national actors. The increasingly central role of ‘data citizens’ and their fundamental rights, she concluded, has the implications of potentially further conflating notions of territoriality, citizenship, and the state in the current digital era. In his exploration of modern intelligence, Markussen then insisted on moving beyond recent revelations about global mass surveillance programmes to even more recent discoveries about the activities of Cambridge Analytica. The Cambridge Analytica scandal, and ‘surveillance capitalism’ more broadly, he argued, did not represent a mere continuation or intensification of the intrusive intelligence practices revealed by Snowden. Rather, it marked a distinct shift in intelligence and surveillance practices: from simply ‘watching’ people to ‘modifying’ the social behaviour of citizens and voters. This shift, the chapter concluded, has altered not only political subjectivity and governance but the very question of what it means to be ‘free’ in a liberal democratic society. Finally, Chapter 11 linked back to some of the arguments presented in the introduction, and offered an extended, in-depth problematisation of intelligence practices and intelligence scholarship. In his chapter, Bigo contended that the conditions under which intelligence is constructed by secret services today are prompted by three interdependent and mutually reinforcing dynamics: transnational sharing of information in guilds; a digitisation allowing largescale surveillance of citizens and foreigners; and a restructuration of the prominent actors doing surveillance into a public-private assemblage. Following his discussion around these dynamics, Bigo concluded that the study of contemporary intelligence has little to gain from the canons of US political science of the 1970s, which are well-established and still in use in mainstream IS. To better capture the social and relational dynamics underpinning current practices of state violence performed in secret, including their modalities of legitimation, these should be investigated along the lines of Norbert Elias and related key thinkers in the tradition of relational political sociology. In sum, the chapters in this volume all develop, in their own unique ways, original, innovative, empirically rich, and theoretically sophisticated problematisations of contemporary intelligence practices and intelligence scholarship. In the following section, we will draw out some common themes identified in them.

Emerging Themes in New Intelligence Studies The chapters have in common a qualitative and empirically driven analysis of intelligence as an object forged by social actors and what they ‘do’ on a daily

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basis. In doing so, the perhaps most central theme across all contributions is that they take a step away from IS and refuse to take for granted its ideas, assumptions, and usual conclusions. They do not apply pre-defined conceptions of intelligence on the object under review, nor do they approach intelligence as a pre-constructed or closed entity. Rather, they re-construct it a posteriori according to the observations of practices on the ground. The metaphor of the puzzle is here useful to understand this research process. Each chapter studies intelligence like it puts together the pieces of a puzzle. In the beginning, it is a jumble, and the puzzle starts to take shape only as the pieces fit together and indicate a certain direction, a movement that one can follow to continue the puzzle – in short, according to the observation of the puzzle. In this sense, the chapters are guided by the empirical observation of ‘what is going on’ in, and with, intelligence in their respective areas, looking into what people do using a variety of means such as semi-structured interviews, analysis of written material (ranging from court cases to memoirs), and ethnographic observations. This implies enquiring into intelligence as an eminently and irrevocably social phenomenon made up of people, flesh and bones, hands and minds, and practical logics evolving in social universes. Approaching intelligence ‘from below’ and from the angle of the everyday (Walters 2020) allows for a more expansive and diverse ontology of intelligence than intelligence services only, to dissect and itemise intelligence and thus flesh out its social life. As a result, actors and sites that were previously unseen are now appearing, as indicated in this volume by the examples of anti-radicalisation units in prison intelligence or intelligence gathering under UK’s Prevent duty. If intelligence services are no longer the only show in town, as we propose throughout this book, this raises the question of the centrality of these services in a social space that stretches far beyond the limits of the so-called ‘intelligence community’. As suggested in Chapter 3, intelligence as a practice is not in any way inherently linked to the historically most common actors of intelligence: this link is the result of the longue-durée development of practices, not of some natural evolution. Indeed, intelligence does not have a specific essence. It depends, rather, upon the concerns and interests of the actors on the ground, and the stakes at play at a given time and in a given configuration of power relations. We can also take a new look at traditional intelligence services with a perspective that takes into account their social and political everyday dynamics, as indicated by the examples of the Swedish and New Zealand intelligence agencies. Similar to Eriksson’s (2016) approach, this book illustrates how we may reach fundamentally different conclusions about the ‘usual’ intelligence actors if we employ a perspective which gives primacy to the social context. Rather than to take for granted the practical routines and forms of knowledge and authority generated by an intelligence agency, with a reflexive mindset towards the social conditions and milieu of the production of ‘specific intelligence knowledges’ we may see how it is underpinned and influenced

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by ‘both explicit and implicit methodological and theoretical assumptions’ (ibid., 3). The Swedish and New Zealand cases also orient their analyses towards aspects of intelligence services’ work that are usually overlooked or ignored in conventional IS, e.g., the configuration and technological make-up of their micro-practices, their organisational subdivisions into different units and branches, their position beyond the intelligence field and involvement in political power plays, or the legitimacy and impact of their practices in society more broadly. A second theme emerging from all chapters is that their empirical observations of contemporary intelligence are backed up by a transdisciplinary approach and mindset. They draw not on a single discipline, but broadly on various traditions in the social sciences, citing literature and findings from fields such as Criminology, (International) Law, Prison Studies, Police Studies, Surveillance Studies, (Critical) Security Studies, and elsewhere. These lessons are then related to existing Intelligence Studies scholarship to illuminate the extent to which – if at all – the chapters’ respective problems and empirical objects have been investigated therein. In doing so, the need to fundamentally rethink and to start drawing transversal lines across IS became rather apparent. International Political Sociology is a line of research frequently mobilised in the book which immediately renders possible this kind of transversal thinking (Basaran et al. 2016). Investigating practices and relationships at the intersections of the social, political, and international, an IPS informed approach fractures the disciplinary boundaries that are usually contradicted by the practices on the ground. An IPS understanding of intelligence thus sees it as a transversal labour that connects actors, sites, crafts, and practices that tend to extend far beyond the mere task to inform security policy and military strategy. A third theme throughout the chapters is their ability to rethink the question of what, or who, make up the ‘targets’ of intelligence labour and intelligence collection today. As more and more actors do intelligence in the name of law enforcement, counter-terrorism, and homeland security, this begs another question as to the significance of more conventional threats involved in intelligence. As we have seen, people – that is, the average citizen, you and me – have progressively become the key targets in and for intelligence work. Not foreign governments and state secrets, but the population itself is increasingly being monitored by intelligence actors and subjected to pre-emptive and coercive actions by security authorities. This, in turn, disrupts the notion of what makes up the actual pieces of collected intelligence, data, and information. Intelligence data is not limited to airwaves or cable signals but is made up of people in a perhaps more literal sense than before. Intelligence collection today targets everything from people’s movements in public spaces to the appearance and behaviour of pupils, patients, and inmates, people’s private communications online and over the phone, citizens’ so-called ‘data doubles’ of biometric and personal information circulating between interoperable databases, and Internet users’

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click of a button on an online social media platform, such as a Facebook ‘like’. Our social traces and connections – physical as well as virtual – our everyday lives, indeed every aspect of our social being is made into potentially valuable information subject to collection, processing, and sharing among intelligence actors, broadly defined. Fourth, the chapters all point to the changing dynamics of the violence that is embedded in contemporary intelligence. Whereas the extraordinary actions involving state-sanctioned secret killings, as discussed in Chapter 11, continue to be at stake, new and different forms of violence are discussed in this book as well. Everyday policing and citizen surveillance, for instance, tends to involve sometimes subtle, sometimes explicit forms of racial discrimination in terms of who gets judged as ‘suspicious’ or ‘out of place’. As we have seen, the forms of surveillance and social sorting carried out by welfare workers or prison guards unproportionally target Muslim communities and groups when linking them to risks of terrorist radicalisation. Racial and ethnic profiling in surveillance and policing are otherwise wellcovered in academic research (see e.g., Patel 2012; Vitale 2017; Harcourt 2007), and this book clearly demonstrates why we need to connect these critical debates to the new intelligence actors entangled in counter-terrorist surveillance. The case studies in this book dealing with electronic surveillance and bulk data collection highlight another form of violence. Here, previous activities of wiretapping, monitoring, and ‘listening in’ on a select few targets have been gradually replaced by, or at least complemented with, new forms of watching and collecting everyone’s communications all the time. Intelligence’s capacity to inform and enable coercive security and policing practices has in other words expanded greatly. As shown in Chapter 9, privacy from the intrusions of the state is if not dead, then at least in a critical state, and struggles to ensure fundamental rights and freedoms online are required to explore unfamiliar legal territories. The symbolic violence exerted by the state has ‘moved online’ in the sense that its ‘official’ authority to order and divide is no longer limited to the socio-material world, but now encompasses our sociodigital environment as well. Crucially, just as the state’s capacity to dictate the social order in society is at once recognised as legitimate and misrecognised as arbitrary, to paraphrase Bourdieu (1991), so is its authority to monitor communications online left largely unchallenged. We have to remember that the Snowden revelations changed ‘everything’ but at the same time ‘nothing’, in the sense that Western governments’ intelligence agencies’ bulk collection of personal information continues in more or less full force. The large mass of Internet users and data citizens continue to silently accept these intrusive practices; no global protest or international regulation has yet managed to put them to rest. It is not only the state’s symbolic violence that is at work. The discussion in Chapter 10 further problematises the picture by noting that even private companies are involved in digital surveillance. Here, their intelligence gathering of social media behaviour enacts a kind of violence that goes

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beyond the mere infringement of privacy, to a violence that manages to steer, influence, manipulate, and even modify individual behaviours, thus affecting our very political subjectivity. Not only security practices, we may thus conclude, but also practices of surveillance and intelligence become ‘defined through [their] tensions with the democratic organisation of political life’ (Huysmans 2014, 4).

Final Words The larger goal with this edited volume and intellectual project is to open up a new research agenda on contemporary intelligence. In doing so, it takes a position which problematises IS by placing the social relations and practices of intelligence at the heart of the analysis. Also known as conducting a ‘reflexive break’, we disregard received wisdoms about intelligence and insist on re-constructing this analytical object based on empirical observation and by drawing broadly on different theories and methods across the social sciences. As we have explained, this is what makes our general approach transdisciplinary, in addition to practice oriented. Our position towards IS scholarship also involves breaking with the discipline on a few points. By departing from the social and the practical and adopting a transdisciplinary mindset, it becomes impossible to accept the IS’ tendencies towards AngloAmerican-centrism and its long history of favouring and (re)producing functionalist and performance-focused research questions. As stated in more detail in the Introduction, our intellectual position is not about serving the state or improving intelligence practice. Instead, we conduct research on intelligence practices. In doing so, we may contribute to parts of IS, but we certainly do not ‘belong’ there. Rather, we situate ourselves across the broad spectrum of the social sciences and favour a position of reflexivity. This is also what sets our project apart from the branches of IS that claim to be ‘critical’ yet nonetheless invite all kinds of approaches, including ones with rationalist and functionalist aims. Although we distance ourselves in this way, we are happy to engage with and build on the parts of this critical scholarship that accept to focus primarily on the social dimensions of intelligence and to follow empirical lines of enquiry rather than predetermined categories of knowledge. For instance, a recent article in Review of International Studies by Cormac, Walton, and Van Puyvelde on the notion of ‘success’ in secret state killings represents a promising avenue for future research and for creating synergies with our project since it, in the words of the authors, seeks to ‘develop a conceptual model of covert action success as a social construct’ (Cormac et al. 2021). They contend, among other things, that ‘[a]udiences have traditionally understood covert action as stories, but scholarship on covert action has shied away from examining who tells these stories, and how elites frame their settings, characters such as allies and enemies, and plots or crises’ (ibid. 8).

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Finally, with this book, we also hope to have achieved a more understated goal, which was to inspire. With our practice-oriented approach and transdisciplinary mindset, along with the chapters’ demonstrations of how to apply such an approach and line of thinking, we hope to have paved the way for more sociological, anthropological, and ethnographic work on the inner workings and social make-up of contemporary intelligence. To this end, we are hereby launching a new book series on the theme of ‘New Intelligence Studies’. It will serve as a home for future monographs and edited collections that are dissatisfied with the traditional confines of IS and are willing to build something new, something different.

References Abbott, Andrew. 1988. The System of Professions: An Essay on the Division of Expert Labor. University of Chicago Press. Basaran, Tugba, Didier Bigo, Emmanuel-Pierre Guittet, and R. B. J. Walker, eds. 2016. International Political Sociology: Transversal Lines. London: Routledge. Ben Jaffel, Hager, Alvina Hoffmann, Oliver Kearns, and Sebastian Larsson. 2020. ‘Collective Discussion: Toward Critical Approaches to Intelligence as a Social Phenomenon’. International Political Sociology 14 (3): 323–344. Bigo, Didier. 2016. ‘Sociology of Transnational Guilds’. International Political Sociology 10 (4): 398–416. Bourdieu, Pierre. 1991. Language and Symbolic Power. Cambridge: Polity & Blackwell. Bourdieu, Pierre, and Loïc J. D. Wacquant. 1992. An Invitation to Reflexive Sociology. Cambridge: Polity Press. Cormac, Rory, Calder Walton, and Damien Van Puyvelde. 2021. ‘What Constitutes Successful Covert Action? Evaluating Unacknowledged Interventionism in Foreign Affairs’. Review of International Studies 48 (1): 111–128. Elias, Norbert. 1983. The Court Society. New York: Pantheon Books. Eriksson, Gunilla. 2016. Swedish Military Intelligence: Producing Knowledge. Edinburgh: Edinburgh University Press. Harcourt, Bernard. 2007. Against Prediction. Chicago: University of Chicago Press. Huysmans, Jef. 2014. Security Unbound: Enacting Democratic Limits. Abingdon: Routledge. Lahire, Bernard. 2011. The Plural Actor. Polity Press. Patel, Tina Girishbhai. 2012. ‘Surveillance, Suspicion and Stigma: Brown Bodies in a Terror-Panic Climate’. Surveillance & Society 10 (3/4): 215–234. Vitale, Alex S. 2017. The End of Policing. London; New York: Verso. Walters, William. 2020. ‘Everyday Secrecy: Oral History and the Social Life of a Top-Secret Weapons Research Establishment during the Cold War’. Security Dialogue 51 (1): 60–76.

Index

Page numbers followed by ‘n’ refer to notes.

accountability, intelligence: government 211; overview 30–31; see also oversight, intelligence; reflexive study of intelligence accountability After Snowden: Rethinking the Impact of Surveillance (Bauman) 201 agency, threat to 206–209 Åkesson, I. 170 AKIS (Aufklärung Krimineller Islamitischer Strukturen) platform 121, 129n18, 129n19 alcohol 82, 85 Aldrich, R. J. 22n5 Alexander, K. 166–167, 170 Aliens Branch 66n3 America Online bulletin board 186 Andrejevic, M. 207, 208 Anglo-Americanism, in IS 13–17 anglosphere service 238n5 anonymity: Declaration’s treatment of 194–195; right to 192 Anti Extremism and Terrorism Centre 128n5 Anti-terror Database (ATD) 118 anxiety 102, 105 ANZUS rift 132 Apple 4, 211 Aradau, C. 205 assessment: actuarial 110n3; RAU in French prisons 99–100, 102–106, 108; threat 120 Association of Chief Police Officers (ACPO) 55–56, 58, 59, 60, 61, 63, 66n4 Atkinson, R. 56 AT&T 211

Attlee, C. 53, 56 Australian Security Intelligence Organisation (ASIO) 14 Australian Signals Directorate (ASD) 166 Automated Fingerprint Identification System (AFIS) 118 autonomy 126–127, 171, 205, 209, 222, 229, 234; actors of secret services 232; between agencies 233; BLKA’s view 124; constabulary 58; intelligence 125; level of 115, 124; light-touch counterterrorism activities 82; of local intelligence strategies 65; loss of 65; personal 208 auxiliary operations, FRA 162 AZR (Register for Foreign People) 118 balancing between democracy and security 31–33 Bangladesh Rapid Action Battalion (RAB) 144 Bannon, S. 213, 214 Barrington, B., Dr. 150n5 Basaran, T. 136 Basu, N. 89, 90 ‘battle of ideas’ 80, 81, 82–83, 90 Bauman, Z. 201, 202, 205, 206 Bavarian Police Act 125 Bayerisches Landeskriminalamt (BLKA) 114, 116, 119–121, 124, 129n16; AKIS platform 121, 129n18, 129n19; analysts 122, 129n24; automated collection and primary analysis 120; control room 121, 129n20, 129n21; EASY platform

Index 255 120–121; Head of 129n15; IGVPIGWEB and GLADIS platforms 120; pervasive measures, use 125; regional police forces 117–118, 128n1; threat analysis 120 Bean, H. 17 Belgium, scandal in Italy and 233 beliefs, cultural 77 ‘belongers’ and ‘non-belongers’ 53, 57 Ben Jaffel, H. 13, 40, 159, 183, 201, 220, 234 Berners-Lee, T., Sir 189 Bhaskar, R. 234 Bigo, D. 13, 22, 39, 136, 143, 144, 157, 166, 169, 171–172, 201, 202, 205, 206, 248 BKA (Bundeskriminalamt) see Federal criminal police (BKA) blackmailing 202, 203 Blanke, T. 205 BND (Bundesnachrichtendienst) see foreign intelligence service (BND) Bonelli, L. 41, 144, 157, 169, 171–172 Bourdieu, P. 10, 19, 30, 40, 41, 42–43, 49, 51, 52, 57, 58, 115, 124, 127, 141, 157, 158, 163, 171, 224, 234, 251 Branco, S. 190 Brazil: Internet Bill of Rights 187–191; Marco Civil bill in 181, 184, 190, 195; national legislations with transnational effects 184–195; Right to Privacy in Digital Age 181–182 Brazilian Federal Constitution 189 Brazilian Internet Steering Committee 189 Brexit campaign 202, 210, 214 bribery 59, 202 British Airport Authority (BAA) 54, 66n1 British Intelligence and Security Committee 32 British Nationality Act 53 British policing, pre-emptive ILP and see pre-emptive intelligence-led policing (ILP) broadcasting, regulation of 184–187 bulk communications data (BCDs) 197 bulk personal datasets (BPDs) 197 bullying 186 Bundeskriminalamt (BKA) see Federal criminal police (BKA) Bundesnachrichtendienst (BND) see foreign intelligence service (BND)

Bush, G. W. 35 Callaghan, J. 56 Cambridge Analytica scandal: overview 201–204, 248; surveillance subjectivity, transformation 209–215; threat to agency, practices of watching and 206–209; threat to privacy, practices of watching and 204–206 Campbell, D. 168–169 cannabis 60 Cavelty, M. D. 8 central bureau for prison intelligence (BCRP) 99 Central Drugs and Illegal Immigration Intelligence Unit (CDIIIU) 49, 50, 58, 59, 60, 64, 65–66 Centre for Cyberdefense 128n5 Centre for Strategic Innovation (SIZ) 121 Chander, A. 182 Channel 4 News 202 Charlie Hebdo 99 children 80, 82, 84, 86, 87–88 chilling effects 205, 212, 215 Christchurch Mosques, terrorist attack on 133, 134, 142, 148 CIA, role in Latin America 228 citizen-led intelligence gathering: diffusing intelligence gathering in everyday life 83–89; overview 73–75; Prevent Strategy 79–89; see also countering violent extremism (CVE) citizenship 195–198; data 196, 197–198, 248; digital 196 Citron, D. K. 186 civil liability 185 classification struggles, nation in crisis and 52–58 Code of Criminal Procedure 126 coercion 6, 8, 83, 85, 88, 203, 204, 216, 221, 230 coloured immigration 57 commercialism 145–147 (com)modification, surveillance in age of 202, 204, 206, 208, 215, 216; see also surveillance commonwealth ideal 53 Commonwealth immigration act 56 communication(s): encrypting 3; foreign digital 161; informal 50; interceptions of 5; online and phone 6; route 175n3;

256

Index

service providers (CSPs), Swedish 161, 163, 175n5; traffic data on 165 Communications Decency Act of 1996 (CDA): anti-decency sections of 185–186; Section 230 of 184, 185, 186, 187 Communications Security Establishment (CSE), Canada’s 166 Conference of Interior Ministries (IMK) 125 confidentiality, doctor–patient 85–86 conflation of territoriality, citizenship, and state, transformation 195–198 constabulary autonomy 58 contemporary intelligence 7, 9; transdisciplinary perspective on 9–13 content data, collection of 162 CONTEST 73, 80 control room, BLKA 121, 129n20, 129n21 coordination and oversight structures 231 Cordner, G. 123 Cormac, R. 252 corruption 59, 61 CORTEX program 147 Council of Europe Convention 227 countering violent extremism (CVE) 246; intelligence, surveillance, and 75–79; overview 73–75; Prevent Strategy 79–83 counter-terrorism (CT) 3, 4, 5, 6, 7, 246–247; Bangladesh 144; CONTEST 73, 80; democratisation of 82; intelligence, collection of 12; intelligence cooperation 13; law enforcement and intelligence bodies 50; monitoring, civilians in 82; NSA–FRA counter-terrorism collaboration 164–169, 170–171; police liaison officers 13; Prevent Strategy 79–83; safeguarding and 84; SÄPO 164–169; surveillance 87; threat-related activities 169; see also citizen-led intelligence gathering; countering violent extremism (CVE) Counter-Terrorism and Security Act 73, 82, 83 Counter-Terrorism Intelligence Units (CTIU) 66 Court of Justice of EU (CJEU) 192–194, 196, 197

COVID-19 contact tracing apps 205 Cox, C. 185 Cox, R. W. 134 crime 84; combating 144; organised 50, 99, 110n1, 120, 138 Criminal Investigation Department (CID) 64 Critical Intelligence Studies (CIS) 17–20 Critical International Relations 42 Critical Political Sociology 106–109 Critical Security Studies 11, 12 Critical Terrorism Studies 42 CT see counter-terrorism (CT) Cullen, M., Sir 139, 142, 143 culture: beliefs 77; of intelligence 107, 110n7 Cusick, J. 170 CVE see countering violent extremism (CVE) cyberattacks 140, 147 cyber civil rights 186 cybercrime 117, 120, 189 cybersecurity: activities 137, 147; technological developments in 168; vulnerability 167–168 cyberspace 184 cyberwarfare strategy 167 data: citizen 196, 197–198, 248; digitisation of 236; nationalism 182; repoliticisation of 115 databases: ATD 118; GCHQ 168; INPOL 118, 120; INPOL-NEU 118, 120, 122, 128n8; interoperability of 236; NSA 166, 168; police and intelligence services 118 Davies, P. H. J. 32 Declaration of Internet Rights, Italy 191–195 defence: intelligence programme 31–32; operations, signals intelligence gathering for 162 Defense Intelligence Headquarters (DIH), Japan’s 166 democracy and security, need of balancing 31–33 Dencik, L. 208 Department of Corrections 138 Department of Internal Affairs 138 Department of Prime Minister and Cabinet (DPMC) 133, 139, 141, 142 Der Derian, J. 225 Desmond, M. 41, 43n2

Index 257 De Werd, P. 17, 18 diffusing intelligence gathering 83–89 digital citizen 196 digital interaction points 161 digital spying 159, 164–169 digital surveillance 5–6, 156, 157, 164–169 digitisation: of data 236; intelligence and police labour 121–124 Director of National Intelligence (DNI) 14 disciplinary unconscious 40, 41 doctor–patient confidentiality, principle 85–86 documents, NSA 165, 168 domestic security: code 99; legislations on 118 Dotcom, K. 145 Doty, R. L. 53 double agents 4 Douglas, R., Sir 150n6 Dresser, P. 83 drug(s): abuse 85; CDIIIU 49, 50, 58, 59, 60; national intelligence units dedicated to 62; policies, harmonisation of 63; safeguard children from 82; trafficking 55, 58–59, 60–61 Durkheim, E. 234 Eakin, H. 165, 166, 169, 174 Easton, B. 150n6 EASY platform 120–121, 129n17 ‘Echelon’ affair 233 Education and Training Act 149 Elias, N. 224, 234, 248 Elmer, G. 204 embracement, of need for raison d’État 35–37 Emirbayer, M. 41, 43n2, 234 endogamy, form of 14–15 Enloe, C. 10 Eriksson, G. 158, 249 Eriksson, J. 167 Esteves, P. 201, 202, 205, 206 ethnic profiling in surveillance 251 Etzioni, A. 34 EU see European Union (EU) Europe, NSA spying in 164–169 European Charter of Fundamental Rights 191, 194, 195 European Convention on Human Rights (ECHR) 194, 196–197, 198

European Court of Human Rights (ECtHR) 6, 194 European Cryptologic Centre (ECC), NSA 169 European Economic Community (EEC) 52, 53–54, 56, 65 European Union (EU) 114, 120, 169, 191–198; Charter of Fundamental Rights 191, 194, 195; CJEU 192–194, 196, 197; Directives, applicability of 193; ECtHR 194; Europol 118, 120, 123, 128n7, 129n19; Frontex 123; Fundamental Rights Agency 175n4; fundamental rights in 194, 195; law 184, 191, 192, 197; legislation for data protection 124; police agencies 116; police information system 128 European Workshops in International Studies (EWIS) 22n9 EUROPOL 118, 120, 123, 128n7, 129n19 Exclusive Economic Zone, New Zealand’s 138 extraterritorial application, notion of 197 extremism 91n1; see also countering violent extremism (CVE) Facebook 4, 165, 187, 202, 206, 207, 210, 211, 213, 214 Faure Walker, R. 89 Federal Bureau of Investigation 146 Federal criminal police (BKA) 117, 118, 125, 126, 128n2, 128n13; Constitutional Court ruling on 124; database on Islamist terrorism with 119; intelligence analysis released by 120, 123; intelligence officials from 116; reforms induced by 124; threat analysis 120 Federal Customs Service (BZA) 117 Federal Office for Protection of Constitution (BfV) 117, 119, 120, 123, 128n4, 129n26 Federal Police (BPOL) 117, 123 FELIS (Flexible Einsatzleit System Innere Sicherheit) software 121, 129n21 Ferguson, B., Sir 150n4 Fernandez, S. 89 Ferrari, E. 192, 194–195 Fiji 143 Finch, J. 77

258

Index

‘fire-fighting’ oversight 42 Five Eyes partnership 15, 22n4, 30, 134, 159; commitment to 143; member of 143; NSA and 156–157, 173; social spaces of secret services 233; UKUSA Agreement 142; United States and 197; value of 142 Fletcher, I. 141 foreign intelligence service (BND) 4, 117, 125, 126, 128n3, 166; documents of intelligence analysis by 123, 129n26; domestic and international monitoring 6; reforms induced by 124; specialists of 116 Försvarets Radioanstalt (FRA) 247; auxiliary operations 162–164, 165; catalogue of objectives 161 NSA–FRA collaboration 164–169, 170, 172, 173; in offensive hacking operations 164; SÄPO and MUST 164–165; signals intelligence gathering 161, 162; see also techno-legal boundaries of intelligence Försvarsunderrättelsedomstolen (FUD) 161, 175n4 Fourteen Eyes network 174 France: prisons, intelligence gathering in 96–109, 246–247; Snowden’s disclosures 169 Franks, M. A. 186 Frantziou, E. 194 free speech 186–187 French Centre for Intelligence Research (CF2R) 110n6 Frontex 123 functionalism, in IS 13–17 Future of Criticism, The (Said) 9–10 Gallup opinion poll 57 gambling 85 Garfinkel, A. 234 GASIM 128n5 GCSB see Government Communications Security Bureau (GCSB) Gellner, E. 234 General Direction of Internal Security (DGSI) 110n4 German Federal Criminal Police 125 Germany: police and intelligence services in 247; BND 4, 6, 116, 117, 123, 124, 125, 126, 128n3, 129n26, 166; digitised intelligence and police

labour 121–124; overview 114–117; reconstructing field of German intelligence 124–127; Right to Privacy in Digital Age 181–182; Snowden’s disclosures 169; see also manufacturing intelligence Gesley, J. 130n30 GETZ 128n5 Giddens, A. 224 Gilbert, W., Sir 150n4 Gill, P. 15, 33, 35, 37–38, 73, 183 GIZ 128n5 GLADIS platform 120 Glees, A. 32 global security law 110n5 global space, Internet as 191; see also Internet Goldewijk, K. 18 González, C. 192 Google 4, 166, 192, 192–194, 211 Gorski, P. S. 53 Government Communication Headquarters (GCHQ), UK 4, 6, 14, 142, 144, 160, 165, 166, 167, 168, 169 Government Communications Security Act 137, 149 Government Communications Security Bureau (GCSB) 146–147, 150n4, 150n7, 166; academic work framed by 134; Acting Director of 141; Bangladeshi communications infrastructure 144; functions 150n3; headquarters of 132; intelligence and security agency 136–137; NSA and 143; objectives 138, 139; operating environment for 140; staff 145; targeting of RAB 144; transnational intelligence partnerships 143; UKUSA Agreement 142 GTAZ 117, 128n5 Guardian, The 3, 165, 202 Guild, E. 182, 197, 201, 202, 205, 206 Guittet, E.-P. 136 Habeas Data 189 hacking operations 6, 159, 164, 167–168, 169, 172, 173 Han, B.-C. 207, 208–209 Hanson, C. 150n4 harassment 186 Harcourt, B. 207 hate 84 hate speech 186

Index 259 Heath, E. 57 Heath-Kelly, C. 78 Hillebrand, C. 22n7 Hinsley, H., Sir 14 historians, disclosure and role 228–229, 238n6 Hoffmann, A. 22, 22n1, 76, 77, 183, 206, 247–248 Hollande, F. 238n9 homelessness 84 Home Office: British Airport Authority (BAA) 54, 66n1; civil servant in 54, 60, 61; communication with 61; control of 82; degree of independence from 58; energies 56; immigration branch 54, 59, 60, 66n3, 80; insufficiencies of 55; internal memo from 64; Met and 60, 62, 63; officials 54, 55, 58, 62; representatives 63; Security elites at 56 honey-trapping 203 Houston Journal of International Law 39 H&R Block Inc’s CompuServe 185 Hulnick, A. 14 Hultqvist, P. 168 human intelligence (HUMINT) 203, 205 human rights 205, 247–248; abuse 6; ECtHR 194; to free speech 187; on Internet 195–198; law 182; protection 181–182 human trafficking 66 Huysmans, J. 140 hyper-nudging 207 If You See Something, Say Something campaign 80 IGVP platform 120, 129n17 IGWEB platform 120 ILP, pre-emptive see pre-emptive intelligence-led policing (ILP) immigration and institutional struggles in intelligence strategy 58–65 Immigration and Nationality Directorate 64 Immigration Branch 54, 59, 60, 66n3, 80 Immigration New Zealand 138 Inclusion and Exclusion in Intelligence Studies 22n7 information: exchange, throttling 61–62; ‘good’ 104; relevant and efficient use 104 informed consent 191

Innes, M. 78 INPOL: database 118, 120; INPOLLAND 118; INPOL-NEU database 118, 120, 122, 128n8 Inspector-General of Intelligence and Security (IGIS) 133, 135 Institute for International and Strategic Relations (IRIS) 110n6 institutional schizophrenia 101 institutional struggles in intelligence strategy 58–65 intelligence: community 20, 144, 230, 238n7; culture of 107, 110n7; cycle 15–16, 115, 117, 121, 124, 222, 229, 230, 232; logics in public institutions, diffusion of 106–109; loopholes in, identification 121; new professionals of 98–106; practices 5–9; -related issues 12; services, German 118–119; social effects of 8; strategy, immigration and institutional struggles in 58–65; see also manufacturing intelligence; oversight, intelligence Intelligence and National Security (Treverton) 19, 22n2, 30, 238n7 Intelligence and Security Act 137, 139, 146, 149 Intelligence is for Commanders (Glass and Davidson) 16 Intelligence Studies (IS): alternative problematisation 220–236, 248; Anglo-Americanism, State-Centrism, and functionalism in 13–17; CIS 17–20; core components of 8; core function 9; empirical problem of 183; French school of 106; interrogating 50–52; new, emerging themes in 248–252; overview 3–5; problem with 13–20; scholarship 8, 10, 16, 17, 18, 19, 20; socio-legal approach 182–183; themes and research questions 20–21; wealth of studies in 9; see also accountability, intelligence interaction points, digital 161 Intercept, The 166 interdisciplinarity 11 International Covenant on Civil and Political Rights (ICCPR) 196–197, 198 International Journal of Intelligence and CounterIntelligence 30

260

Index

International Political Sociology (IPS) (Hoffmann and Kearns) 12, 22n1, 76, 221, 250 international relational sociology, secret service practices and 232–236 International Relations (IR) 12, 14, 106 International Studies (Cormac, Walton, and Van Puyvelde) 252 Internet 161; Bill of Rights, Brazil 187–191; defined 185–186, 188, 190, 191; governance 181, 187–191; regulations on 181–198, 247–248 Interpol 62, 63–64, 65 Interregional Prison Intelligence Cells (CIRP) 99 Investigatory Powers Act 196 Irish Constabulary 48 IS see Intelligence Studies (IS) Isin, E. 196, 197 isolated people 84 Italy: Charter of Fundamental Rights of EU 189; Declaration of Internet Rights 191–195; national legislations with transnational effects 184–195; scandal in 233 Jabri, V. 201, 202, 205, 206 Jadhav, S. 78, 88 Jargose, U. 144 Jarvis, L. 79 Johnson, C. 184 Johnson, L. K. 32, 35, 38 Joint Analysis and Strategy Centre for Illegal Immigration 128n5 Joint Counter-Terrorism Centre 117, 128n5 Joint Intelligence Committee 14 jurisdiction and limits of oversight 34–35 Kearns, O. 22n1, 183 Kelsey, J. 150n6 Kent, S. 14, 15, 16 Kibbe, J. 33–34 Kitteridge, R. 141 Klamberg, M. 158, 160, 161–162, 163, 164, 174, 175n3 Klonick, K. 186–187 Knight, R. 14 Labour Government (1984–1990) 150n6 Lagerkvist, J. 167 Larsson, S. 40, 76, 77, 183, 220, 247 Le, U. P. 182

Lemos, R. 189 Libya, violence in 187 Lillbacka, R. G. V. 17 Lister, M. 79 LOPPSI 2 98 Lynch, T. 150n5 Lyon, D. 201, 202, 205, 206 Macmillan, H. 56 Malm, C. 170 malware 167, 168, 173 Manning, P. 123 manufacturing intelligence: Bavarian LKA (BLKA), case of 119–121; BND 4, 6, 116, 117–119, 123–126, 128n3, 129n26, 166; digitised intelligence and police labour 121–124; global architecture 117–119; overview 114–117; police forces and specialised services 117–118; reconstructing field of German intelligence 124–127 Marco Civil bill 181, 184, 190, 195 Markussen, H. 22, 248 Marrin, S. 15 Marx, G. 33 mass surveillance 3, 5, 12; by BND 126; commercial 207; development 211; NSA-initiated 164–169; studying 195–196; threat to privacy 212; see also Internet; techno-legal boundaries of intelligence Mateparae, J., Sir 150n4 Mauer, V. 8 May, T. 82 McCubbins, M. D. 42 McIver, D. 150n4 McKendrick, D. 77 media channels 38 mega-upload file-sharing website 145 mental health services 85 Messenger Rooms 206 Metropolitan Police 58, 59, 60–61, 62, 63–64, 65, 80 Microsoft 4 micro-targeting, practices of 214, 215 migration/migrants: commonwealth 53, 57; legal status of 57; non-white 56, 57; racialisation of 53–54, 57 Milanovic, M. 196 military counter-intelligence service (MAD) 117, 119, 128n14 Military Intelligence and Security Service (MUST), Swedish 158, 164

Index 261 Military Planning Law 98 Mills, C. W. 10, 11 Mindf*ck (Wylie) 209, 213–215 Ministry for Business, Employment and Innovation 138 Ministry for Foreign Affairs and Trade, New Zealand 141 Ministry for Primary Industries 138 Ministry of Justice 99 minorities, role 232 Mitterrand, F. 238n8 modification see (com)modification, surveillance in age of Molineaux, P. 150n4 Moreton-in-Marsh conference 60, 63 Muhammad, Prophet 187 Müller-Wille, B. 34 Murdoch, S. 141, 150n5 Musiani, F. 190 Muslim communities 3, 6, 21, 80, 81, 90, 187, 251 Muslim Contact Unit (MCU) 80 Mutual Legal Assistance Treaty 145 myopic security gaze 142 National Assembly 98, 110n5 National Centre for Terrorist Threat Assessment (NCT) 164 national competence service 99 National Crime Agency (NCA) 66 National Crime Intelligence Service (NCIS) 66 National Defence Radio Establishment 159; see also techno-legal boundaries of intelligence National Fraud Intelligence Bureau (NFIB) 66 National High Court of Spain 192–193 National Intelligence Council 22n2 National Intelligence Model (NIM) 51 Nationality Act, British 53 national legislation with transnational effects 184–195; Brazil’s Internet Bill of Rights 187–191; Italy’s Declaration of Internet Rights 191–195; US jurisdiction and case law 184–187 national security: defined 139, 140; New Zealand 142, 143, 144–145; paradigm 50; Swedish 161, 163; understanding of 140 National Security Agency (NSA) 142, 143, 144–145, 210–211; European Court of Human rights 6; European

Cryptologic Centre (ECC) 169; goal 168; Intelligence Relationship with Sweden 165; NSA–FRA collaboration 164–169, 170, 172, 173, 247; Quantum project 159, 166–167; spying activities 165; surveillance 3–4; transnational mass surveillance practices 165; United States 132; see also technolegal boundaries of intelligence National Service for Prison Intelligence (SNRP) 99 NCAZ 128n5 Neal, A. W. 135 Netherlands, secret services 225, 238n4 neutrality: need for 38–39; net 181, 188, 191, 192 New Labour 81, 82–83 New Public Management (NPM) 51 New York Review of Books, The 165 New Zealand, intelligence work in 247; commercialism 145–147; Government Communications Security Act 137, 149; intelligence and security agencies 136–142; overview 132–136, 249–250; transnationalism 142–145; see also Government Communications Security Bureau (GCSB) New Zealand Customs Service 138 New Zealand Defence Force (NZDF) 137 New Zealand Security Intelligence Service (NZSIS) 142, 150n3, 150n4; academic work framed by 134; Act 136, 149, 150n7; headquarters of 132–133; objectives of 139; operating environment for 140; purpose of 138; review of 139; security agency 136–137; succession of 141 Nix, A. 202, 213 Nolan, B. R. 6 Nordic service 238n5 Notting Hill race riots 59 NSA see National Security Agency (NSA) NZSIS see New Zealand Security Intelligence Service (NZSIS) Obama, B. 132 Omand, D., Sir 14 online hate speech 186 Order-in-Council 136 Ott, M. C. 38 oversight, intelligence 245–246; access

262

Index

under secrecy 33–34; duties 175n5; efficiency 37–38; force intelligence agencies 31; jurisdiction and limits of oversight 34–35; literature on 31–39; necessary ‘balance’ 31–33; neutrality, need for 38–39; progress of 35; raison d’État, embracing 35–37; reflexive understanding of 39–43; scope of 37–38 Palmieri, A. 195 panopticism 204, 212 Parker, R. 150n4 Penalty Studies (PS) 97 Permanent Record (Snowden) 209, 210–213 personal data: free flow of 193; processing 193; protection of 191–192 Petersen, K. L. 13, 76, 146 phone tapping 120–121 physical violence 6 Phythian, M. 15, 183 Pohle, J. 190 polarisation, purposes of 215 police: bodies 48, 50, 54, 55, 58, 59; forces and specialised services 117–118; and intelligence services in Germany 4, 6, 114–117, 123, 121–127, 125, 126, 128n3, 129n26, 166; labour, digitised intelligence and 121–124; see also manufacturing intelligence; pre-emptive intelligence-led policing (ILP) Police Act (1964) 59 Police Drugs and Illegal Immigration 55 Police Federation 55–56 Police Studies (PS) 10–11, 49, 50–52 Political Sociology 11 Polizei 2020 125 Pompidou, G. 63 Port of London Authority (PLA) 54, 66n2 pracademics 14 practices of watching: and threat to agency 206–209; and threat to privacy 204–206 pre-criminal space, concept of 81 pre-emptive intelligence-led policing (ILP) 246; dominant position of metropolitan police 60–61; immigration and institutional struggles in intelligence strategy 58–65; implications for proliferation

of intelligence actors 65–66; interrogating IS and PS 50–52; nation in crisis and advent of classification struggles 52–58; overview 48–50; throttling information exchange 61–62; transnational network 62–65 Prevent Duty, UK 77, 78, 246; Guidance 2015 83; implementation 88–89; see also countering violent extremism (CVE) Prevent Strategy, British government’s 91n1; diffusing intelligence gathering in everyday life 83–89; recognising actors, sites, and practices of everyday intelligence 79–83; see also countering violent extremism (CVE) PRISM program 165, 211 Prison Administration Directorate (DAP) 99 Prison Administration Security Staff 99 prison intelligence, in France 96–109, 246–247 privacy, threat to 204–206, 212, 214, 215 Privacy International 197 Prodigy Services Co. 184, 185, 186 proximity 119 pseudonymity 195 publisher, treatment of 185 Puyvelde, D. Van 22n7, 252 Quantum project 159, 166–167, 169, 173 Quran 100 race/racial: attitudes 134, 142; and ethnic profiling in surveillance 251 racialisation: of migrants 53–54, 57; Notting Hill race riots 59 racism 78, 214 radicalisation 80, 82, 83–84, 85, 87–88; assessment units (RAUs), in French prisons 99–100, 102–106, 108; management unit (RMU) 100; police intelligence services 232; purposes of 215; see also French prisons, intelligence gathering in radio 184, 186 raison d’État, embracing 35–37, 227 Ransom, C. 14 Rapid Action Battalion (RAB), Bangladesh 144 Rayner, H. 41 Reagan, R. 35 Reddy, D. P. 139, 142, 143

Index 263 reflexive sociology, of intelligence oversight 42–43 reflexive study of intelligence accountability 245–246; as break with common sense 40–42; as reflexive sociology 42–43; understanding of oversight 39–43; see also accountability, intelligence Remington, S. 50 Reno v. ACLU 185–186 repoliticisation of data 115 Reyes, L. 245 Richards, J. 78 Right to Privacy in Digital Age 181–182 rights: to freedom of expression 182; to privacy 182 riots 59, 99 Risk and Intelligence Service (RIC) 66 Robespierre, M. 225 Rodotá, S. 195 rogernomics 145, 150n6 Rosenzweig, R. 182 Rousseff, H. E. D. 181, 182 Royal Commission of Inquiry 133 Ruppert, E. 196, 197 Russian traffic data, NSA and 169 safeguarding: policies 84; practice of 84, 85–86, 87–88; social work 86–87 Said, E. W. 9–10, 11 Säkerhetspolisen (SÄPO) 164–169 Sawers, J., Sir 14 scandals 33, 39, 233; high-profile corruption 59; see also Cambridge Analytica scandal Scarborough, K. 123 Schengen Information System (SIS) 118 schizophrenia 104, 105; institutional 101 Schmid, G. 238n4 scholarship: intelligence oversight 31–39; IPS 12; IS 8, 10, 16, 17, 18, 19, 20 scholastic unconscious 40, 41–42 Schreier, F. 32, 37 Schwartz, T. 42 Science and Technology Studies 11 secrecy, access under 33–34 Secret Intelligence Service (SIS) 14 secret services 174; disclosure and role of historians 228–229; functioning of 226; gender inside 225, 238n2; Netherlands 225, 238n4; objectives of 226; organisation of 228; overview 220–224; relational sociology of

232–236; role 224–225; social contacts 224–228; sociology of secret organisations 229–232; targets of 226; visions of 228 secret societies, Simmel on 172 security: democracy and 31–33; domestic, legislations on 118; securitisation theory 17 Security and Intelligence Agencies (SIAs), UK 197 Seehofer, H. 129n27 See it, Say it, Sorted campaign 80 self-esteem 148 self-regulation 190 September 11, 2001 3, 6, 11, 22, 31, 32, 33, 51, 79, 134, 204 Serious Organized Crime Agency (SOCA) 66 sexual abuse 85 sexual exploitation 84 Shapiro, M. J. 134 Sheptycki, J. 50 SIGINT Seniors Europe (SSEUR) 143 SIGINT Seniors Pacific (SSPAC) 143 signals intelligence (SIGINT) practice: NSA and FRA’s collaboration in 164–169; services 50, 143, 160, 168; in Sweden 159–164 Silicon Valley giants 211 Silver, D. B. 36, 39–40 Simmel, G. 172 Smith, L. 150n4 smuggling 138 Snowden, E. 3, 4, 5, 6, 12, 30, 35, 39, 50, 133, 134, 143, 156, 157, 159, 160, 164–169, 181, 183, 189, 201, 202, 204, 206, 208, 209–215, 236, 251 social contacts 224–228 social evolution, of intelligence 5–9 social struggles 52 social unconscious 40–41 social workers 88; safeguarding 86–87; on vulnerability 84–84, 85 Society for Civil Rights, The 126 society of secrets, Simmel on 172 socio-legal analysis, of intelligence practices 247–248; IS in 182–183; transnational effects of national legislations 184–195; see also Internet, regulations on sociological imagination 10 Spanish Data Protection Agency 192 spatial freedom 203

264

Index

speaker, treatment of 185 specialised services 117–118 Special Tactics Group 145 spying 236; counter-spying and 225, 227; digital 4, 159; NSA 164–169 spyware 6, 167 Stanley, T. 77–78 state agents 222, 235; authorities, violence performed in secret by 224–228; management of secret violence of 224; see also violence, performed in secret by state agents State-Centrism, in IS 13–17 State Inspection of Defence Intelligence Operations 175n5 Statens Inspektion för Försvarsunderrättelseverksamheten (SIUN) 175n5 Strategic Intelligence for American World Policy (Kent) 14, 16 strategic planning conference, in US 166 Stratton Oakmont 185 Strausz, E. 78 structural realism 16 struggles: classification, nation in crisis and 52–58; institutional, in intelligence strategy 58–65; nation-ization 53; social 52 substance abuse 85 surveillance: capitalism 202, 203, 204, 206, 248; citizen-led 77; citizens of 6; conducting 126; CVE and 75–79; digital 5–6, 156, 157, 164–169; human, intelligence services for 5; NSA 3–4, 164–169; post-Cambridge Analytica 201–215, 248; practices, transformation 204–209; studies, international political sociology and 76; see also mass surveillance Svendsen, A. 22n5 Sveriges Television 165, 175n2 Sweden, intelligence practice in: CSPs 161, 163, 175n5; FRA and NSA’s cooperation 164–169; overview 156–159, 247, 249–250; Quantum project 159, 166–167; signals intelligence practice in 159–164; Swedish–US intelligence partnership 170; transnational intelligence guilds 169–173 Swedish Armed Forces 158 Swedish Authority for Privacy Protection 175n5

Swedish Defence Intelligence Court 161, 175n4 Swedish Defence Research Agency 167 Swedish Military Intelligence and Security Service (MUST) 158, 164 Switzerland, scandal in Italy and 233 symbolic power 42–43 Tarde, G. 234 Tarrant, B. 142 tax evasion 66 techno-legal boundaries of intelligence: FRA and NSA’s cooperation 164–169; overview 156–159; signals intelligence practice in 159–164; transnational intelligence guilds 169–173 Telecommunications (Interception Capability and Security) Act (TISCA) 146, 149 telecommunication: companies 211; signals 161 teleological narrative, progress of oversight 35 television 184 temporal freedom 203 TEMPORA program 165 territoriality, citizenship, and state, conflation of 195–198 terrorism 66; antiterrorism 120; combating 144; French prison in face of 98–106; resistance to 80, 82; threat from 85, 123; transboundary 164; see also counter-terrorism (CT) Terrorist Attack on Christchurch Mosques 133 theoreticism 41 Thomas, E. 14 Thomas, G. 78 Thompson and Clark Investigation (NZ), Ltd. 146 threat(s) 80, 81; to agency, practices of watching and 206–209; analysis, BLKA 120; identifying 108; international security from 139; postCold War 16; to privacy, practices of watching and 204–206, 212, 214, 215; security 48, 62, 77, 81, 161, 163; state and external 50; from terrorism and radicalisation 85; terrorist 108, 123; transnational criminal 51 Tilly, C. 234 Titan 163

Index 265 Tjalve, V. S. 13, 76, 146 trade unions 53 traffic data: auxiliary collection of 162–163; collection of 162–163, 173; on communication 165; Russian, NSA with 169 transatlantic mass surveillance 165; see also techno-legal boundaries of intelligence transdisciplinary perspective, on contemporary intelligence 9–13 transformation(s): conflation of territoriality, citizenship, and state 195–198; of prison culture 99; surveillance practices 204–209 transnationalism/transnational 142–145; dimensions, signals intelligence practice in Sweden 159–164; effects, national legislations with 184–195; intelligence sharing 170; network 62–65; professional guilds of intelligence bureaucrats 169–173; see also New Zealand, intelligence work in transversal lines, notion of 136 transversal practices, intelligence work in New Zealand 4, 7, 12, 135, 136, 142, 145, 147; see also New Zealand, intelligence work in Treré, E. 208 Treverton, G. 22n2 Trevi group 62 Trump, D. 202, 210, 213 Trumpy, S. 195 trust 86, 119; secret agencies 32; between services 230 Tucker, W., Dr. 150n4 Turkey, violence in 187 Twitter 187 UN General Assembly 181–182 United Kingdom (UK): GCHQ 4, 6, 14, 142, 144, 160, 165, 166, 167, 168, 169; SIAs 197; UK-Swedish bilateral agreements 160; UKUSA Agreement 132, 142, 149, 159, 159, 160, 160; UK–US special relationship 16–17, 22n5; see also countering violent extremism (CVE) United States (US): Department for Homeland Security 146; jurisdiction and case law 184–187; national legislations with transnational effects

184–195; strategic planning conference in 166; Swedish–US intelligence partnership 170; UKUSA Agreement 132, 142, 149, 159, 159, 160, 160; UK–US special relationship 16–17, 22n5; US National Counterterrorism Center 6; USSwedish bilateral agreement 160; US Telecommunications Act 184; see also National Security Agency (NSA) Universal Declaration of Human Rights 190, 191, 197 universal global space with universal human rights see Internet Uppdrag Granskning 175n2 users’ rights, Internet 187–191 Verizon 211 vigilant surveillance 76, 77 violence 6, 8, 10, 187; monopolisation of 57; performed in secret by state agents 220–236; symbolic 163; see also countering violent extremism (CVE) Voutat, B. 41 vulnerability: cybersecurity 167–168; social workers on 84–84, 85 Wacquant, L. J. D. 42 Walker, R. B. J. 136, 201, 202, 205, 206 Walton, C. 252 Warner, M. 14 War on Terror 133, 137, 138, 141–142 Warsaw Pact 159 Warusfel, B. 107 Washington Post, The 3 watching, practices of: threat to agency and 206–209; threat to privacy and 204–206 Weller, G. 158 Westminster attack 89 Wevers, M. 150n5 Wheaton, K. 16 whistleblowing 3, 33, 157, 166 white fragility, signs of 214 White Paper on Defense and National Security 98 Willison, J., Sir 54 Winterlight 159, 167, 168, 173 wiretapping activities, Swedish 157, 158, 160, 162, 166, 169 Woods, R. 141

266

Index

World Summit on Information Society in Tunis 195 World Wide Web 189 Wyden, R. 185 Wylie, C. 202, 204, 209, 210, 213–215 Xkeyscore 166 Yahoo 4 Yeung, K. 207

Younis, T. 78, 88, 89 YouTube 187, 211 Zara, C. 187 Zeran v. America Online, Inc. 186 ZEVIS (German Information system on Traffic and Transportation) 118 Zuboff, S. 207–208