Not clear what effect UNCLOS could have on addressing intelligence operations that intercept underseas cables
[ Page 105 ]
Whether UNCLOS can be used to address the mass surveillance carried out through the tapping of undersea cables is not entirely clear. To the extent that UNCLOS governs intelligence gathering activities, it could be argued that it only applies to intelligence gathering activities that take place within the mari- time domain, and will not govern the use of intercepts at cable landing stations. Further, if indeed mass surveillance can be done by physically tapping undersea cables by splicing the cable or otherwise, it is also not certain that UNCLOS is the applicable regime to govern such acts. Such surveillance does not fall within conventional perceptions of military activities/intelligence gathering at sea, which as mentioned above, is targeted, and aims at enhancing knowledge of the marine environment and/or the military capabilities of other State’s navies. That said, UNCLOS is of course a living instrument and subject to evolutionary interpretation, and for present purposes, this Article will as- sume that UNCLOS applies to the mass surveillance carried out by tapping undersea cables to the extent it involves physically tapping cables as they lay on the seabed.