- July 22, 2017
- Clayton Rice, Q.C.
The Five Eyes (FVEY) is a signals intelligence (SIGINT) alliance comprised of the United States, the United Kingdom, Canada, Australia and New Zealand. During the Cold War the ECHELON surveillance system was developed by the Five Eyes nations to monitor the communications of the former Soviet Union and Eastern Bloc. It is now used to monitor communications on the Internet. Former US National Security Agency contractor Edward Snowden has described the Five Eyes as a “supra-national intelligence organization that doesn’t answer to the known laws of its own countries.”
The origins of the alliance date back to World War II and the United Kingdom-United States Communication Intelligence Agreement (UKUSA Agreement) of 1946 by which the signatories agreed to the “presumption of unrestricted exchange of signals intelligence” as well as the methods and techniques relating to signals intelligence operations. The 1955 revision of the agreement is the most recent version that is publicly available. The Five Eyes, then, operates in the shadows. According to a post to the web site of Privacy International, a London based nongovernmental organization, titled The Five Eyes, here is what we know:
“[U]nder the agreement interception, collection, acquisition, analysis, and decryption is conducted by each of the State parties in their respective parts of the globe, and all intelligence information is shared by default. The agreement is wide in scope and establishes jointly-run operations centres where operatives from multiple intelligence agencies of the Five Eyes States work alongside each other. Further, tasks are decided between SIGINT agencies, ensuring that the Five Eyes alliance is far more than a set of principles of collaboration. The level of cooperation under the agreement is so complete that the national product is often indistinguishable.”
But the shrouding of Five Eyes SIGINT may be about to change.
On July 5, 2017, Privacy International commenced an action under the US Freedom of Information Act (FOIA), 5 USC s. 552, in the United States District Court for the District of Columbia styled as Privacy International v National Security Agency, Office of the Director of National Intelligence, Department of State, and National Archives and Records Administration, Case 1:7-cv-01324, seeking declaratory and injunctive relief. I will give you six extracts from the Complaint that highlight (1) the difference between communication in the Cold War era and the digital age and (2) the nature of the information sought.
1. The Internet
- Many individuals today live major portions of their lives online. They use the internet to communicate with others, impart ideas, conduct research, explore their sexuality, seek medical advice and treatment, correspond with lawyers, and express their political and personal views. They also increasingly use the internet to conduct many ordinary activities, such as keeping records, arranging travel, and carrying out financial transactions. Today, much of this activity is conducted on mobile digital devices such as cellular phones, which “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v California, 134 S. CT. 2473, 2489 (2014). [para. 27]
- The internet has also enabled the creation of greater quantities of personal data about communications, known as “metadata”. Metadata is information about a communication, which may include the sender and recipient, the date and location from where it was sent, and the type of device used to send it. Metadata can reveal web browsing activities, which might reveal medical conditions, religious viewpoints, or political affiliations. It can also reveal items purchased, news sites visited, forums joined, books read, movies watched and games played. [para. 28]
- The nature of signals intelligence has also changed dramatically since 1955. As modern communications have evolved, intelligence agencies have developed more advanced ways to access, acquire, store, analyze and disseminate this information. In particular, they have developed methods for acquiring communications and data transiting the internet. The costs of storing his information have decreased drastically and continue to do so every year. At the same time, technology now permits revelatory analyses of types and amounts of data that were previously considered meaningless or incoherent. Metadata, in particular, is structured in such a way that computers can search through it for patterns faster and more effectively than similar searches through the content of communications. Finally, the internet has facilitated remote access to information, meaning communications and data no longer need to be physically transferred from sender to recipient. [para. 30]
2. The Information
- Privacy International seeks access to the current text of the UKUSA Agreement, information about how the government implements the Agreement, and records concerning the standards and procedures for exchanging intelligence under the Agreement. These records are of paramount concern because the public lacks even basic information about the Five Eyes alliance, including the current text of the Agreement and the rules and regulations that govern the government’s access to and acquisition, storage, analysis and dissemination of Americans’ communications as part of that arrangement. The public has equally scant information concerning the rules and regulations that govern the government’s exchange of signals intelligence it has acquired, stored and/or analyzed with the other members of the Five Eyes alliance. This lack of transparency raises questions about whether the Five Eyes intelligence-sharing arrangement satisfies constitutional and statutory requirements. [para. 7]
- The public has no way of assessing whether the currently operative terms of the UKUSA Agreement contain sufficient constraints against the access to and acquisition, storage, analysis and dissemination of signals intelligence to satisfy domestic and international law. [para. 42]
- Disclosing the currently operative provisions of the UKUSA Agreement for protecting privacy and Defendants’ interpretations of those provisions is manifestly in the public interest. To the extent that the Agreement currently contains sufficient safeguards to protect privacy, the public will benefit from knowing that their rights remain protected. Should the Agreement lack such safeguards, the public will be able to demand change from their relevant executive officers. [para. 43]
On July 6, 2017, in another post to the Privacy International web site titled Privacy International Files Lawsuit To Compel Disclosure of Secretive 1946 Surveillance Agreement, legal officer Scarlet Kim said: “For years, Privacy International has fought to shed light on the closely integrated relationship between the intelligence agencies of the Five Eyes alliance. Yet key documents, including the current agreement, remain secret, despite being critical to proper scrutiny of US surveillance activities. The public has a right to know what rules govern the exchange of information – which may include purely domestic communications and data – through this private pact.”
And, in the same post, Hannah Bloch-Wehba of the Yale Law School Media Freedom and Information Access Clinic, counsel for Privacy International, said: “Without knowing the procedures and rules that govern intelligence sharing among the Five Eyes, it is impossible for the public to know if this secretive surveillance abides by constitutional restrictions. Disclosure of the laws, rules, and regulations that constrain government surveillance is fundamental to basic democratic oversight. The government’s failure to make available even the most basic information about the rules currently in place corrodes public confidence in the rule of law and undermines our democracy.” (See also: Matt Burgess. The US government is being sued for info on the secretive Five Eyes intelligence group. WIRED. July 6, 2017)
There can be no question, as the Complaint asserts, at para. 6, that “[h]ow the government exchanges signals intelligence, and whether it appropriately accommodates the constitutional rights of American citizens and residents as well as the human rights of non-American citizens and residents, are matters of great public significance and concern.” The same may be said of the Canadian government. As Tim Cushing wrote in a post titled Privacy International Sues US Government Over Denied Access To Five Eyes Surveillance Agreements published by TechDirt on July 14, 2017: “Knowing who’s allowed to do what with this firehose of information is something people would like to know.”