Would you like to read the current international agreements establishing the intelligence sharing arrangements that underpin the work of the NSA and GCHQ? The rules that govern massive, coordinated communications surveillance operations, hacking, and the exploitation of networks and devices in the name of national security and the public interest?
What about the guidelines that set the boundaries of what certain cooperating intelligence agencies can and cannot do to the citizens of their own countries, and to foreigners?
Well, you can’t.
While the Snowden revelations have exposed much about the extensive sharing of intelligence between the countries of the Five Eyes surveillance alliance - the US, UK, Canada, Australia, and New Zealand - we still have no way of accessing current versions of the treaties and agreements that underpin the arrangement. Up until those revelations, the very existence of the alliance - not to mention the extent of its activities and sharing - remained for the most part secret, with the exception of a few pieces of information gleaned by investigative journalists and academics. While Snowden has helped to shine a light on some of the Five Eyes activities, today we still remain in the dark about the rules that the Five Eyes allies have agreed to abide by.
That's why, in an attempt to begin to shine a light on the alliance, Privacy International and individuals associated with Privacy International sent Freedom of Information (FOI) requests to authorities in all five countries.
In the dark
The alliance began shortly after World War II, and its constituent governments share intelligence by default. Its existence has been noted in history books, and was confirmed by the release of a handful of historical documents (dating from 1940 to 1956) by the NSA and the UK National Archives in 2010. One of those documents, a draft of the original 1946 UKUSA agreement, explains that the exchange of collected signals intelligence (SIGINT) would be “unrestricted”, and that ““all raw traffic shall continue to be exchanged”. The draft also authorizes the (1) collection of traffic; (2) acquisition of communications documents and equipment; (3) traffic analysis; (4) cryptanalysis; (5) decryption and translation; and (6) acquisition of information regarding communications organizations, procedures, practices and equipment.
But we do not know how the sharing of such information is regulated - and we certainly have no insight into whether the human rights obligations of the Five Eyes countries are being taken into account. Indeed, what we do know raises concern that the agencies are playing a game of jurisdictional arbitrage, seeking to exploit differing standards in national legislation. Given the vast operational integration we now know the agencies enjoy, it is essential the legal framework governing this relationship is public.
Yet the Five Eyes agreement mandates secrecy. It states “it will be contrary to this agreement to reveal its existence to any third party unless otherwise agreed,” resulting in modern day references to the existence of the agreement by the intelligence agencies remaining limited.
So in our letters, we specifically requested any and all records pertaining to, relating to, appended to, amending, governing or extending the British-United States Communications Intelligence Agreement (now known as UKUSA Agreement, also referred to as the Five Eyes agreement) and subsequent instruments or other documents constituting agreements regarding the exchange of communications intelligence between the Five Eyes countries.
Disappointingly, despite the overriding public interest, there has been little in the way of substantive responses. However, the following summarizes what we currently know thanks to the responses we have received:
The US has been very tight lipped about the agreement. The US State Department claims not to have any records responsive to our request, but acknowledged some or all of the records we seek "originated" at the NSA. The NSA, for its part, is allegedly so overwhelmed with FOI requests that it has not begun processing ours. And the Director of National Intelligence, who oversees the NSA, has "accepted" our request but has asked for more time to provide a substantive response.
So far, only the UK Foreign and Commonwealth Office (FCO) has responded to our FOI request. They admit to holding relevant information, but refuse to reveal it due to two very broad security exemptions. We are looking into challenging this withholding, especially to the extent that the UK government argues keeping relevant information secret is in the public interest.
We strongly disagree that the public interest supports keeping the overarching parameters of the UK's intelligence sharing regime secret. To the contrary, that interest, and indeed human rights law, requires that such parameters be made public so that we all can assess whether the UK's actions (and those of its alliance partnes) are in accordance with law, and necessary and proportionate.
The UK is the only country in which one of our FOI requests, to the Cabinet Department, has so far gone completely unanswered. This appears to be a troubling continuation of the UK government's pattern of refusing to engage in a meaningful public discussion about surveillance.
Canada similarly has revealed little about the alliance. The Department of National Defence claims to have no information relevant to our requests. The Department of Foreign Affairs, Trade and Development has requested more time to respond, and we expect to hear more from them soon. We are still in correspondence with the Communications Security Establishment Canada.
Despite a call by the Australian information commissioner to make intelligence agencies subject to Australia's FOI Act, our Australian requests have reached a dead end. The Department of Foreign Affairs and Trade could not locate any responsive records, and referred us to the Department of Defence. The Department of Defence (DOD) responded both on its own behalf, and on behalf of the Department of the Prime Minister and Cabinet. According to the DOD, because the records we seek "relate to the operation of the Australian Signals Directorate," they are exempt from disclosure under the Australian FOI Act since the ASD as an agency is exempt from the operation of that Act.
Apparently that means any records the ASD holds, not matter how mundane, or how important to the international public debate, will not be disclosed. We question the wisdom of this blanket prohibition, especially in light of the serious issues of public interest and legality implicated by the information requested.
New Zealand has been the most forthcoming of the Five Eyes so far - although that is not saying much. The Government Communications Security Bureau (GCSB) - the New Zealand equivalent of the GCHQ - is holding responsive information, but it has refused to provide it because the GCSB claims doing so would "likely prejudice the security or defence of New Zealand or the international relations" of its government, and that, essentially, other governments would no longer trust New Zealand to hold their confidential information. Nonetheless, the GCSB and the Office of the Prime Minister have confimed that New Zealand has accepted and is subject ot the terms and conditions of the UKUSA agreement, making New Zealand a "collaborating commonwealth country" in the Five Eyes alliance. The Ministry of Foreign Affairs and Trade claims it holds no responsive information, and therefore refused our request.
Below is a table outlining responses from all Five Eyes governments. We will continue to push for more transparency and accountability for the Five Eyes alliance, and will update this summary if and when we learn more.
|Country||Agency||Date Sent||Date of Response||Nature of response|
|USA||State Department||26 Nov. 2013||3 Dec. 2013||No responsive records located|
|USA||Director of National Intelligence||26 Nov. 2013||3 Dec. 2013||Request accepted, searching records|
|USA||National Security Agency (NSA)||26 Nov. 2013||6 Dec. 2013||Request in process|
|UK||Cabinet Office||26 Nov. 2013||None||None|
|UK||Foreign and Commonwealth Office||26 Nov. 2013||24 Dec. 2013||Refused to produce responsive information|
|Canada||Department of Foreign Affairs, Trade and Development||26 Nov. 2013||6 Jan. 2014||More time reuested for response|
|Canada||Department of National Defence||26 Nov. 2013||30 Dec. 2013||No responsive records located|
|Canada||Communications Security Establishment Canada (CSEC)||26 Nov. 2013||Waiting on response||None|
|Australia||Department of Foreign Affairs and Trade||26 Nov. 2013||28 Nov. 2013||No responsive records located|
|Australia||Department of the Prime Minister and Cabinet||26 Nov. 2013||2 Dec. 2013||Transferred request to DOD|
|Australia||Department of Defence (DOD)||26 Nov. 2013||2 Dec. 2013||Refused to produce responsive information|
|New Zealand||Department of Prime Minister and Cabinet/Office of the Prime Minister||27 Nov. 2013 (NZ Time)||16 Jan. 2014||No responsive records located|
|New Zealand||Government Communications Security Bureau||27 Nov. 2013 (NZ Time)||22 Jan. 2014||Refused to produce responsive information, with the exception of one document that could not be located|
|New Zealand||Ministry of Forgein Affairs and Trade||27 Nov. 2013 (NZ Time)||8 Jan. 2014||No responsive records located|