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Eyes Wide Open Special Report

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The document created by Edward Snowden.

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  • Eyes Wide OpenSpecial Report

  • Executive Sum m ary

    The recent revelations, m ade possible by NSA-whistleblower Edward Snowden, of the reach and scope of global surveillance practices have prom pted a fundam ental re-exam ination of the role of intelligence services in conducting coordinated cross-border surveillance.

    The Five Eyes alliance of States com prised of the United States National Security Agency (N SA), the United Kingdom s G overnm ent C om m unications Headquarters (G C HQ ), C anadas C om m unications Security Establishm ent C anada (C SEC ), the Australian Signals Directorate (ASD), and New Zealands G overnm ent C om m unications Security Bureau (G C SB) is the continuation of an intelligence partnership form ed in the afterm ath of the Second W orld W ar. Today, the Five Eyes has infiltrated every aspect of m odern global com m unications system s.

    The world has changed dram atically since the 1940s; then, private docum ents were stored in filing cabinets under lock and key, and m onths could pass without one having the need or luxury of m aking an international phone call. Now, private docum ents are stored in unknown data centers around the world, international com m unications are conducted daily, and our lives are lived ideas exchanged, financial transactions conducted, intim ate m om ents shared online.

    The drastic changes to how we use technology to com m unicate have not gone unnoticed by the Five Eyes alliance. A leaked NSA strategy docum ent, shared am ongst Five Eyes partners, exposes the clear interest that intelligence agencies have in collecting and analyzing signals intelligence (SIG INT) in the digital age:

    Digital inform ation created since 2006 grew tenfold, reaching 1.8 exabytes in 2011, a trend projected to continue; ubiquitous com puting is fundam entally changing how people interact as individuals becom e untethered from inform ation sources and their com m unications tools; and the traces individuals leave when they interact with the global network will define the capacity to locate, characterize and understand entities.1

    C ontrary to the com plaints of the NSA and other Five Eyes agencies that they are going dark and losing the visibility they once had, the Five Eyes intelligence agencies are in fact the m ost powerful theyve ever been. O perating in the shadows and m isleading the public, the agencies boast in secret how they have adapted in innovative and creative ways that have led som e to describe the current day as the golden age of SIG INT.

    The agencies are playing a dirty gam e; not content with following the already perm issive legal processes under which they operate, theyve found ways to infiltrate all aspects of

    1 NSA SIGINT Strategy, 23 February 2012, available at: http:/ /www.nytimes.com/ interactive/2013/11/23/us/politics/23nsa-sigint-strategy-document.html? re f=po litic s&gwh=5E154810A5FB56B3E9AF98DF667AE3C 8

  • m odern com m unications networks. Forcing com panies to handover their custom ers data under secret orders, and secretly tapping fibre optic cables between the sam e com panies data centers anyway. Accessing sensitive financial data through SW IFT, the worlds financial m essaging system , spending years negotiating an international agreem ent to regulate access to the data through a dem ocratic and accountable process, and then hacking the networks to get direct access. Threatening politicians with trum ped up threats of im pending cyber-war while operating intrusion operations that w eaken the security of networks globally; sabotaging encryption standards and standards bodies thereby underm ining the ability of internet users to secure inform ation.

    Each of these actions have been justified in secret, on the basis of secret interpretations of international law and classified agreem ents. By rem aining in the shadows, our intelligence agencies and the governm ents who control them have rem oved our ability to challenge their actions and their im pact upon our hum an rights. W e cannot hold our governm ents accountable when their actions are obfuscated through secret deals and covert legal fram eworks. Secret law has never been law, and we cannot allow our intelligence agencies to justify their activities on the basis of it.

    W e m ust m ove towards an understanding of global surveillance practices as fundam entally opposed to the rule of law and to the well-established international hum an right to privacy. In doing so, we m ust break down legal fram eworks that obscure the activities of the intelligence agencies or that preference the citizens or residents of Five Eyes countries over the global internet population. These governm ents have carefully constructed legal fram eworks that provide differing levels of protections for internal versus external com m unications, or those relating to nationals versus non-nationals, attem pt to circum vent national constitutional or hum an rights protections governing interferences with the right to privacy of com m unications.

    This notion m ust be rejected. The Five Eyes agencies are seeking not only defeat the spirit and purpose of international hum an rights instrum ents; they are in direct violation of their obligations under such instrum ents. Hum an rights obligations apply to all individuals subject to a States jurisdiction. The obligation to respect privacy extends to the privacy of all com m unications, so that the physical location of the individual m ay be in a different jurisdiction to that where the interference with the right occurs.

    This paper calls for a renewed understanding of the obligations of Five Eyes States with respect to the right to privacy, and dem ands that the laws and regulations that enable intelligence gathering and sharing under the Five Eyes alliance be brought into the light.

    It begins, in Chapter O ne, by shining a light on the history and structure of the alliance, and draws on inform ation disclosed by whistleblowers and investigative journalists to paint a picture of the alliance as it operates today. In Chapter Tw o, we argue that the laws and regulations around which Five Eyes are constructed are insufficiently clear and accessible to ensure they are in com pliance with the rule of law. In Chapter Three, we turn to the obligations of Five Eyes States under international hum an rights law and argue for an interference-based jurisdiction whereby Five Eyes States owe a general duty not to interfere with com m unications that pass through their territorial borders. Through such a conceptualization, we argue, m ass surveillance is cognisable within a

  • hum an rights fram ework in a way that provides rights and rem edies to affected individuals.

    W hile the existence of the Five Eyes has been kept secret from the public and parliam ents, dogged investigative reporting from Duncan C am pbell, Nicky Hager, and Jam es Bam ford has gone som e way to uncovering the extent of the arrangem ent. Now, thanks to Edward Snowden, the public are able to understand m ore about the spying that is being done in their nam e than ever before.

    Trust m ust be restored, and our intelligence agencies m ust be brought under the rule of law. Transparency around and accountability for these secret agreem ents is a crucial first step.

    Privacy International to grateful is Ben Jaffey, C aspar Bow den, D an Squires, D uncan C am pbell, Eric M etcalfe, Ian Brow n, Jam es Bam ford, M ark Scott, M arko M ilanovic, M athias Verm eulen, N icky Hager, Sham ik D utta, for their insight, feedback, discussions, investigation and support. W e are grateful to all of the w histleblow ers w hose responsible disclosures in the public interest have brought transparency to the gross violations of hum an rights being conducted by the intelligence agencies in our nam e.

    G iven the current rapid nature of inform ation disclosures regarding the intelligence agencies, this paper w ill be regularly updated to reflect the m ost accurate understanding w e have of the nature of the Five Eyes arrangem ent. Any errors or om ission are solely attributable to the authors.

    Version 1.0 26 N ovem ber 2013

  • Chapter 1 Understanding the Five Eyes

    The birth of the Five Eyes alliance

    Beginning in 1946, an alliance of five countries (the US, the UK, Australia, C anada and New Zealand) developed a series of bilateral agreem ents over m ore than a decade that becam e known as the UKUSA (pronounced yew-kew-zah) agreem ent, establishing the Five Eyes alliance for the purpose of sharing intelligence, but prim arily signals intelligence (hereafter SIG INT). W hile the existence of the agreem ent has been noted in history books and references are often m ade to it as part of reporting on the intelligence agencies, there is little knowledge or understanding outside the services them selves of exactly what the arrangem ent com prises.

    Even within the governm ents of the respective countries, which the intelligence agencies are m eant to serve, there has historically been little appreciation for the extent of the arrangem ent. The arrangem ent is so secretive the Australian Prim e M inister reportedly wasnt inform ed of its existence until 19732. Form er Prim e M inister of New Zealand, David Lange, once rem arked that it was not until I read this book [Nicky Hagers Secret Pow er, which detailed G C SBs history] that I had any idea that we had been com m itted to an international integrated electronic network. He continued: it is an outrage that I and other m inisters were told so little, and this raises the question of to whom those concerned saw them selves ultim ately answerable.3

    There has been no debate around the legitim acy or purpose of the Five Eyes alliance in part due to the lack of publicly available inform ation about it. In 2010, the US and UK declassified num erous docum ents, including m em oranda and draft texts, relating to the creation of the UKUSA agreem ent. However, generally the Five Eyes States and their intelligence services have been far too slow in declassifying inform ation that no longer needs to be secret, resulting in no m ention on any governm ent website of the arrangem ent until recently.

    The intelligence agencies involved in the alliance are the United States National Security Agency (N SA), the United Kingdom s G overnm ent C om m unications Headquarters (G C HQ ), C anadas C om m unications Security Establishm ent C anada (C SEC ), the Australian Signals Directorate (ASD), and New Zealands G overnm ent C om m unications Security Bureau (G C SB).

    The extent of the original arrangem ent is broad and includes the

    (1) collection of traffic; (2) acquisition of com m unications docum ents and equipm ent;

    2 C anadas role in secret intelligence alliance Five Eyes, C TV N ew s, 8 O ctober 2013, available at: http://knlive.ctvnew s.ca/m obile/the-knlive-hub/canada-s-role-in-secret-intelligence-alliance-five-eyes-1.1489170 3 Secret Pow er, N icky Hager, 1996, page 8 available at: http://w w w.nickyhager.info/Secret_Pow er.pdf

  • (3) traffic analysis; (4) cryptanalysis; (5) decryption and translation; and (6) acquisition of inform ation regarding com m unications organizations, procedures, practices and equipm ent.

    A draft of the original UKUSA agreem ent, declassified in 2010, explains that the exchange of the above-listed inform ation

    will be unrestricted on all work undertaken except when specifically excluded from the agreem ent at the request of either party to lim it such exceptions to the absolute m inim um and to exercise no restrictions other than those reported and m utually agreed upon.

    Indeed, in addition to facilitating collaboration, the agreem ent suggests that all intercepted m aterial would be shared between Five Eyes States by default. The text stipulates that all raw traffic shall continue to be exchanged except in cases where one or the other party agrees to forgo its copy.

    The working arrangem ent that was reached in 1953 by UKUSA parties explained that while C om m onwealth countries other than the UK are not party to the UKUSA C O M INT agreem ent, they will not be regarded as Third Parties.4 Instead C anada, Australia and New Zealand will be regarded as UKUSA-collaborating C om m onwealth countries, also know n as Second Parties. O ne retired senior NATO intelligence officer has suggested there is no form al over-arching international agreem ent that governs all Five Eyes intelligence relationships.5 It is not known how accurate that statem ent is, or how the agreem ent has been m odified in subsequent years as the text of the Five Eyes agreem ent in its current form has never been m ade public.

    Today, G C HQ sim ply states it has partnerships with a range of allies [ ] [o]ur collaboration with the USA, known as UKUSA, delivers enorm ous benefits to both nations.6 The N SA m akes no direct reference to the UKUSA arrangem ent or the Five Eyes States by nam e, except by way of historical references to partnerships with the British and the Dom inions of C anada, Australia, and New Zealand in the declassification section of their website.7

    The original agreem ent m andated secrecy, stating it will be contrary to this agreem ent to reveal its existence to any third party unless otherwise agreed resulting in m odern day references to the existence of the agreem ent by the intelligence agencies rem aining

    4 Appendix J, Principles of UKUSA collaboration w ith com m onw ealth countries other than the UK. Page 39, available at: http://w w w.nationalarchives.gov.uk/ukusa/ 5 C anada and the Five Eyes Intelligence C om m unity, Jam es C ox, Strategic Studies W orking G roup Papers, D ecem ber 2012, page 4, accessible at: http://w w w.cdfai.org/PD F/C anada% 20and% 20the% 20Five% 20Eyes% 20Intelligence% 20C om m unity.pdf 6 International Partners, G C HQ w ebsite, available at: http://w w w.gchq.gov.uk/how _w e_w ork/partnerships/Pages/International-partners.aspx 7 UKUSA Agreem ent Release 1940-1956, N SA w ebsite, available at: http://w w w.nsa.gov/public_info/declass/ukusa.shtm l

  • lim ited. The existence of the agreem ent was not acknowledged publicly until M arch 1999, w hen the Australian governm ent confirm ed that the Defence Signals Directorate (now Australian Signals Directorate) "does co-operate with counterpart signals intelligence organisations overseas under the UKUSA relationship."8

    C anadas C SEC 9 states it m aintains intelligence relationships with NSA, G C HQ , ASD and G C SB, but only New Zealands G C SB10 and ASD 11 m ention the UKUSA agreem ent by nam e.12

    This obfuscation continues, with only cursory m entions m ade across a wide range of public policy docum ents to the existence of an intelligence sharing partnership. For exam ple the UK C ounter-Terrorist Strategy C O NTEST, referred to the existence of the Five Eyes agreem ent only in passing when stating the UK will continue to develop our m ost significant bilateral intelligence relationship with the US, and the Five Eyes cooperation with the US, Australia, C anada and New Zealand.13

    W e have been unable to locate any m ajor public strategic policy docum ent that describes Australias, C anadas, New Zealands or the United States involvem ent in the Five Eyes in any detail.

    The extent of Five Eyes collaboration

    The close relationship between the five States is evidenced by docum ents recently released by Edward Snowden. Alm ost all of the docum ents include the classification TO P SEC RET//C O M INT//REL TO USA, AUS, C AN, G BR, NZL or TO P SEC RET//C O M INT//REL TO USA, FVEY. These classification m arkings indicate the m aterial is top-secret com m unications intelligence (aka SIG INT) m aterial that can be

    8 The s ta te o f the a rt in communica tions Inte lligence (C O MINT) o f automated p roces s ing fo r inte lligence purposes o f inte rcep ted b roadband multi-language lea sed o r common ca rrie r sys tems , and its app licab ility to C O MINT ta rge tting and se lec tion, inc lud ing speech recognition, O c tobe r 1999, page 1, ava ilab le a t: http :/ /www.duncancampbe ll.o rg /menu/surve illance /eche lon/ IC 2000_Report% 20.pd f 9 C SEC 's Inte rna tiona l Pa rtne rships , C SEC webs ite , ava ilab le a t: http :/ /www.cse-cs t.gc .ca /home-accue il/ about-apropos /pee rs-homologues-eng .html 10 UKUSA Allie s , G C SB webs ite , ava ilab le a t: http :/ /www.gcsb .govt.nz/about-us /UKUS A.html 11 UKUSA Allie s , AS D webs ite , ava ilab le a t: http :/ /www.asd .gov.au/pa rtne rs /a llie s .htm 12 The New Zea land Prime Minis te r, John Key, ha s spec ifica lly re fe rred to Five Eyes on s eve ra l occas ions ; a t his 29 O c tober 2013 p re ss confe rence , fo r example , in answer to the ques tion, Do you think the G C SB was aware o f the extent o f spying from the NSA on fo re ign leade rs? he rep lied : Well I dont know a ll o f the info rma tion they exchanged , the d is cuss ions they had with the ir counte rpa rts . They a re pa rt o f Five Eyes so they had d iscuss ions which a re a t a much more g ranula r leve l than I have. , aud io ava ilab le a t: http :/ /www.scoop .co .nz/ s to rie s /HL1310/S00224/pms-press-confe rence-aud io-merid ian-spying-and-fonte rra .htm. Simila rly, a t his 25 O c tober, p re ss confe rence , with re fe rence to Edward Snowden, he s ta ted He has a mass ive amount o f da ta , we ' re pa rt o f Five Eyes , it' s highly like ly he ' s go t info rma tion re la ted to New Zea land , video ava ilab le a t http :/ /www.3news .co .nz/Snowden-highly-like ly-to-have-spy-info / tab id /1607/a rtic le ID/322789/Default.a spx#ixzz2lgdC ec1I. 13 Securing Brita in in an Age o f Unce rta inty: The S tra teg ic De fence and Security Review, HM Gove rnment, 2010, page 46, ava ilab le a t: http s :/ /www.gov.uk/gove rnment/up loads / sys tem/up loads / a ttachment_da ta / file /62482/s tra teg ic-de fence-security-review.pdf

  • released to the US, Australia, C anada, United Kingdom and New Zealand. The purpose of the REL TO is to identify classified inform ation that a party has predeterm ined to be releasable (or has already been released) through established foreign disclosure procedures and channels, to a foreign country or international organisation.14 N otably w hile other alliances and coalitions exist such as the North Atlantic Treaty O rganisation (e.g. TS//REL TO USA, NATO ), European C ounter-Terrorism Forces (e.g TS//REL TO USA, EC TF) or C hem ical W eapons C onvention States (e.g. TS//REL TO USA, C W C S) none of the docum ents that have thus far been m ade public refer to any of these arrangem ents, suggesting the Five Eyes alliance is the preem inent SIG INT collection alliance.

    The arrangem ent in this way was not just to create a set of principles of collaboration, or the facilitation of inform ation sharing, but to enable the dividing of tasks between SIG INT agencies. The agreem ent explains that

    [a]llocation of m ajor tasks, conferring a one-sided responsibility, is undesirable and im practicable as a m ain principle; however, in order that the widest possible cover of foreign cypher com m unications be achieved the C O M INT agencies of the tw o parties shall exchange proposals for the elim ination of duplication. In addition, collaboration between those agencies will take the form of suggestion and m utual arrangem ent as to the undertaking of new tasks and changes in status of old tasks.15

    The continuation of this sharing of tasks between agencies has been acknowledged with form er Defense Secretary C aspar W einberger observing that the "United States has neither the opportunity nor the resources to unilaterally collect all the intelligence inform ation we require. W e com pensate with a variety of intelligence sharing arrangem ents with other nations in the world."16 The C anadian SIG INT agency C SEC explain how it relies on its closest foreign intelligence allies, the US, UK, Australia and New Zealand to share the collection burden and the resulting intelligence yield.17 O ther form er intelligence analysts have confirm ed18 there is task-sharing between the Five Eyes groups.

    14 Security C lassification M arkings Authorization for ReleaseTo (RELTO )and D issem ination C ontrol/

    D eclassification M arkings, USTRAN SC O M Foreign D isclosure O ffice, available at: http://w w w.transcom .m il/publications/show Publication.cfm ?docID =04A4D 891-1EC 9-F26D -0715C B3E5AF1309B 15 Appendix E, C o-ordination of, and exchange of inform ation on, cryptanalysis and associated

    techniques. page 34, available at: http://w w w.nationalarchives.gov.uk/ukusa/PD F page 34 16 D eclaration of the Secretary of D efence C aspar W W einberger in USA v Jonathan Pollard, 1986.

    Available at: http://w w w 2.gw u.edu/~nsarchiv/N SAEBB/N SAEBB407/docs/EBB-PollardD oc6.pdf 17 Safeguarding C anada's security through inform ation superiority, C SEC w ebsite, available at:

    http://w w w.cse-cst.gc.ca/hom e-accueil/m edia/inform ation-eng.htm l 18 Britains G C HQ the brains, Am ericas N SA the m oney behind spy alliance, Japan Tim es, 18th

    N ovem ber, 2013, accessible at: http://w w w.japantim es.co.jp/new s/2013/11/18/w orld/britains-gchq-the-brains-am ericas-nsa-the-m oney-behind-spy-alliance/#.Uozm bM vTnqB

  • The level of co-operation under the UKUSA agreem ent is so com plete that "the national product is often indistinguishable."19 This has resulted in form er intelligence officials explaining that the close-knit cooperation that exists under the UKUSA agreem ent m eans that SIG INT custom ers in both capitals seldom know which country generated either the access or the product itself.20 Another form er British spy has said that [c]ooperation between the two countries, particularly, in SIG INT, is so close that it becom es very difficult to know who is doing what [...] its just organizational m ess.21

    The division of SIG IN T collection responsibilities

    Investigative journalist Duncan C am pbell explains that historically

    [u]nder the UKUSA agreem ent, the five m ain English-speaking countries took responsibility for overseeing surveillance in different parts of the globe. Britain's zone included Africa and Europe, east to the Ural M ountains of the form er USSR; C anada covered northern latitudes and polar regions; Australia covered O ceania. The agreem ent prescribed com m on procedures, targets, equipm ent and m ethods that the SIG INT agencies would use.22

    M ore recently an ex-senior NATO intelligence officer elaborated on this point, saying

    [e]ach Five Eyes partner collects inform ation over a specific area of the globe [ ] but their collection and analysis activities are orchestrated to the point that they essentially act as one. Precise assignm ents are not publicly known, but research indicates that Australia m onitors South and East Asia em issions. New Zealand covers the South Pacific and Southeast Asia. The UK devotes attention to Europe and W estern Russia, w hile the US m onitors the C aribbean, C hina, Russia, the M iddle East and Africa.23

    Jointly run operations centres

    In addition to fluidly sharing collected SIG INT, it is understood that m any intelligence facilities run by the respective Five Eyes countries are jointly operated, even jointly staffed, by m em bers of the intelligence agencies of Five Eyes countries. Each facility

    19 Robert Aldrich (2006) paper 'Transatlantic Intelligence and security co-operation', available at:

    http://w w w 2.w arw ick.ac.uk/fac/soc/pais/people/aldrich/publications/inta80_4_08_aldrich.pdfIntelligence' 20 S. Lander, 'International intelligence cooperation: an inside perspective', in C am bridge Review of

    International Affairs, 2007, vol. 17, n3, p.487. 21 Britains G C HQ the brains, Am ericas N SA the m oney behind spy alliance, Japan Tim es, 18th

    N ovem ber, 2013, accessible at: http://w w w.japantim es.co.jp/new s/2013/11/18/w orld/britains-gchq-the-brains-am ericas-nsa-the-m oney-behind-spy-alliance/#.Uozm bM vTnqB 22 Inside Echelon, D uncan C am pbell, 2000, available at: http://w w w.heise.de/tp/artikel/6/6929/1.htm l

    23 C anada and the Five Eyes Intelligence C om m unity, Jam es C ox, Strategic Studies W orking G roup

    Papers, D ecem ber 2012, accessible at: http://w w w.cdfai.org/PD F/C anada% 20and% 20the% 20Five% 20Eyes% 20Intelligence% 20C om m unity.pdf page 6

  • collects SIG INT, which can then be shared with the other Five Eyes States.

    An earlier incarnation of ASD, the Defence Signals Branch in M elbourne,24 w as described in the original 1956 UKUSA agreem ent as

    not purely a national centre. It is and will continue to be a joint U.K Australian New Zealand organization m anned by and integrated staff. It is a civilian organization under the Australian Departm ent of Defence and undertakes C O M INT tasks as agreed between the C O M INT governing authorities of Australia and New Zealand on the one hand and the London Signal Intelligence Board on the other. O n technical m atters control is exercised by G C HQ on behalf of the London Signal Intelligence Board.

    This jointly run operation has continued, with the Australian Joint Defence Facility at Pine G ap being staffed by both Australian and US intelligence officers. The facility collects intelligence that is jointly used and analysed.25 In fact, only half of the staff are Australian,26 w ith US intelligence operatives from NSA and other agencies likely accounting for the rest. An Am erican official runs the base itself, with the posting being considered a step towards prom otion into the m ost senior ranks of the US intelligence com m unity with an Australian acts as deputy.27 W ith such an overwhelm ing US presence, it is likely that that m ajority of the cost of running is base is paid for by the US; the Australian Defence Departm ent says Australias contribution to Pine G aps in 2011-12 w as a m ere AUS$14 m illion.28

    The system s run at the base are tied into the largest Five Eyes intelligence structure with personnel sitting in airconditioned offices in central Australia [being] directly linked, on a m inute-by-m inute basis, to US and allied m ilitary operations in Afghanistan and indeed anywhere else across the eastern hem isphere. 29 As a result it has been reported that [t]he practical reality is that Pine G ap's capabilities are now deeply and inextricably entwined with US m ilitary operations, down to the tactical level, across half the world.30 The New Zealand G C SB was sim ilarly entwined with the NSA: the G C SBs Director of

    24 See: The D efence Signals Bureau w as established in 1947, as part of the D epartm ent of D efence, w ith

    responsibility for m aintaining a national sigint capability in peacetim e. In 1977, D SD assum ed its current nam e available at: http://w w w .dpm c.gov.au/publications/intelligence_inquiry/chapter7/4_dsd.htm 25 Pine G ap drives US drone kills, The Age, 21st July 2013, available at:

    http://w w w.sm h.com .au/national/pine-gap-drives-us-drone-kills-20130720-2qbsa.htm l 26 Australian outback station at forefront of US spying arsenal, The Sydney M orning Herald, 26th July 2013,

    available at: http://w w w.sm h.com .au/it-pro/security-it/australian-outback-station-at-forefront-of-us-spying-arsenal-20130726-hv10h.htm l 27 Australian outback station at forefront of US spying arsenal, The Sydney M orning Herald, 26th July 2013,

    available at: http://w w w.sm h.com .au/it-pro/security-it/australian-outback-station-at-forefront-of-us-spying-arsenal-20130726-hv10h.htm l 28 Pine G ap drives US drone kills, The Age, 21st July 2013, available at:

    http://w w w.sm h.com .au/national/pine-gap-drives-us-drone-kills-20130720-2qbsa.htm l 29 Pine G ap drives US drone kills, The Age, 21st July 2013, available at:

    http://w w w.sm h.com .au/national/pine-gap-drives-us-drone-kills-20130720-2qbsa.htm l 30 Australian outback station at forefront of US spying arsenal, The Sydney M orning Herald, 26th July 2013,

    available at: http://w w w.sm h.com .au/it-pro/security-it/australian-outback-station-at-forefront-of-us-spying-arsenal-20130726-hv10h.htm l

  • Policy and Plans from 1984-1987, for exam ple, was an NSA em ployee.31

    In addition to bases in Australia and New Zealand, Britains history of Em pire left G C HQ with a widespread network of SIG INT outposts. Intelligence stations in Berm uda, C yprus, G ibraltar, Singapore and Hong Kong have all played critical collection roles over the past 60 years.

    O ne of the largest listening posts outside the US is based in northern England, yet has been under US ownership since the 1950s. In 1996 the base was renam ed RAF M enwith Hill and it was reported that for the first tim e the Union Jack was raised alongside the Stars and Stripes. David Bowe, M EP for C leveland and Richm ond, said this was designed to m islead and that "[m ]y inform ation is that the RAF representation on the base am ounts to one token squadron leader. The nam e change was presum ably decided to m ake the whole site look m ore benign and acceptable."32 The base was the subject of a six billion pound investm ent over last 20 years, with the m ajority of that likely to be US funds.33

    O ther bases, such as G C HQ s operation in the South W est of England at Bude, are also jointly staffed. The G uardian reported34 that in addition to jointly developing the TEM PO RA program , 300 analysts from G C HQ and 250 from the NSA were located at Bude and directly assigned to exam ine m aterial collected under the program m e.

    In his sem inal report Interception C apabilities 2000, Duncan C am pbell nam ed a num ber of foreign or jointly run NSA bases. He wrote

    [t]he US Air Force installed 500 m etre wide arrays known as FLR-9 at sites including C hicksands, England, San Vito dei Norm anni in Italy, Karam ursel in Turkey, the Philippines, and at M isawa, Japan. C odenam ed "Iron Horse", the first FLR-9 stations cam e into operation in 1964. The US Navy established sim ilar bases in the US and at Rota, Spain, Brem erhaven, G erm any, Edzell, Scotland, G uam , and later in Puerto Rico, targeted on C uba.35

    31 A fact unknow n to the Prim e M inister at the tim e: Hager, Secret Pow er, p. 21.

    32 US spy base `taps UK phones for M I5', The Independant, 22 Septem ber 1996, available at:

    http://w w w.independent.co.uk/new s/uk/hom e-new s/us-spy-base-taps-uk-phones-for-m i5-1364399.htm l 33 US spy base `taps UK phones for M I5', The Independant, 22 Septem ber 1996, available at:

    http://w w w.independent.co.uk/new s/uk/hom e-new s/us-spy-base-taps-uk-phones-for-m i5-1364399.htm l 34 An early version of TEM PO RA is referred to as the C heltenham Processing C entre, additionally

    codenam ed TIN T, and is described as a "joint G C HQ /N SA research initiative". The G uardian quotes an internal G C HQ report that claim s "G C HQ and N SA avoid processing the sam e data tw ice and proactively seek to converge technical solutions and processing architectures." It w as additionally reported that N SA provided G C HQ w ith the technology necessary to sift through the m aterial collected. The G uardian reported that 300 analysts from G C HQ and 250 from N SA w ere directly assigned to exam ine the collected m aterial, although the num ber is now no doubt m uch larger. G C HQ have had staff exam ining collected m aterial since the projects incarnation in 2008, w ith N SA analysts brought to trials in Sum m er 2011. Full access w as provided to N SA by Autum n 2011. An additional 850,000 N SA em ployees and US private contractors w ith top secret clearance reportedly also have access to G C HQ databases 35 Inside Echelon, D uncan C am pbell, 2000, available at: http://w w w.heise.de/tp/artikel/6/6929/1.htm l

  • M any of these sites rem ain active, as an NSA presentation displaying the prim ary foreign collection operations bases shows. The presentation36 details both the US sites distributed around the world as well as the 2nd party bases as follows:

    Type Location Country Codenam e US site Yakim a US JAC KNIFE US site Sugar G rove US TIM BERLINE US site Sabana Seca Puerto Rico C O RALINE US site Brasillia Brasil SC SUS site Harrogate (aka M enwith

    Hill) UK M O O NPENNY

    US site Bad Aibling37 G erm any G ARLIC K US site New Delhi India SC SUS site Thailand Thailand LEM O NW O O D US site M isawa38 Japan LAD YLO VE 2nd Party Bude UK C ARBO Y 2nd Party O m an O m an SNIC K2nd Party N airobi Kenya SC APEL 2nd Party G eraldton Australia STELLAR 2nd Party C yprus C yprus SO UNDER 2nd Party N ew Zealand New Zealand IRO NSAN

    It is im portant to note that, just because a base is being operated from within a particular country, this does not forestall Five Eyes parties from collecting intelligence therein on the host country. Ex-NSA staff have confirm ed that com m unications are m onitored from alm ost every nation in the world, including the nations on whose soil the intercept bases are located.39

    Intelligence collection, analysis and sharing activities

    It is believed that m uch of the intelligence collected under the Five Eyes arrangem ent can be accessed by any of the Five Eyes partners at any tim e. Som e codenam ed program m es that have been revealed to the public over the last decade go som e way to illustrating how the Five Eyes alliance collaborates on specific program m es of activity and how som e of this inform ation is shared. It should be noted that these are just a selection of program m es that have been m ade public, and are likely to represent a tiny fraction of the joint collection undertaken by Five Eyes partners. Nevertheless these codenam ed program m es reveal just how integrated the Five Eyes SIG INT collection and analysis m ethods are, and the existence of shared SIG INT tools and technologies

    36 New s lide s about NSA co llec tion p rog rams , Elec tro spaces b log , 16th July, 2013, ava ilab le a t: http :/ / e lec tro spaces .b logspo t.co .uk/2013/07/new-s lide s-about-nsa-co llec tion-prog rams .html 37 Bad Aib ling S ta tion, Wikiped ia , ava ilab le a t: http :/ / en.wikiped ia .o rg /wiki/Bad_Aib ling_S ta tion 38 http :/ /www.misawa .a f.mil/ and http :/ /www2.gwu.edu/~nsa rchiv/NS AEBB/NSAEBB23/docs /doc12.pd f 39 Ins ide Eche lon, Duncan C ampbe ll, 2000, ava ilab le a t: http :/ /www.he ise .de / tp / a rtike l/6/6929/1.html

  • them selves.

    As early as the 1980s, Five Eyes countries used a global Internet-like com m unication network to enable rem ote intelligence custom ers to task com puters at each collection site, and receive the results autom atically.40 This netw ork was known as EC HELO N and was revealed to the public in 1988 by Duncan C am pbell.41 An often-m isunderstood term , EC HELO N is in fact a

    code nam e given by the NSA (U.S. National Security Agency) to a system that collects and processes inform ation derived from intercepting civil satellite com m unications. The inform ation obtained at EC HELO N stations is fed into the global com m unications network operated jointly by the SIG INT organisations of the United States, United Kingdom , Australia, C anada and New Zealand. EC HELO N stations operate autom atically. M ost of the inform ation that is selected is autom atically fed into the world-wide network of SIG INT stations.42

    It is not know n how long the EC HELO N program m e continued in that form , but the N SA went on to develop program m es such as THINTHREAD, which em erged at the turn of the m illennium . THINTHREAD was a sophisticated SIG INT analysis tool used "to create graphs showing relationships and patterns that could tell analysts which targets they should look at and which calls should be listened to."43 O ne of the creators of THINTHREAD, Bill Binney described the tool to the New Yorker:

    As Binney im agined it, ThinThread would correlate data from financial transactions, travel records, W eb searches, G .P.S. equipm ent, and any other "attributes" that an analyst m ight find useful in pinpointing "the bad guys." By 2000, Binney, using fibre optics, had set up a com puter network that could chart relationships am ong people in real tim e. It also turned the N.S.A.'s data-collection paradigm upside down. Instead of vacuum ing up inform ation around the world and then sending it all back to headquarters for analysis, ThinThread processed inform ation as it was collected discarding useless inform ation on the spot and avoiding the overload problem that plagued centralized system s. Binney says, "The beauty of it is that it was open-ended, so it could keep expanding." 44

    This program m e was distributed around the world and trialed in conjunction with the Five Eyes partners. Tim Shorrock explains:

    The THINTHREAD prototype went live in the fall of 2000 and [ ] several allied foreign intelligence agencies were given the program m e to conduct lawful

    40 Inside Echelon, D uncan C am pbell, 2000, available at: http://w w w.heise.de/tp/artikel/6/6929/1.htm l

    41 Som ebody's listening, N ew Statesm en, 12 August 1988, available at:

    http://w eb.archive.org/w eb/20070103071501/http://duncan.gn.apc.org/echelon-dc.htm 42 http://w w w.duncancam pbell.org/m enu/surveillance/echelon/IC 2001-Paper1.pdf, page 2.

    43 US spy device 'tested on N Z public', The N ew Zealand Herald, 25th M ay 2013, available at:

    http://w w w.nzherald.co.nz/nz/new s/article.cfm ?c_id=1&objectid=10886031 44 The Secret Sharer, The N ew Yorker, 23 M ay 2011, available at:

    http://w w w .new yorker.com /reporting/2011/05/23/110523fa_fact_m ayer?currentPage=all

  • surveillance in their own corners of the world. Those recipients included C anada, [ ] Britain, Australia and New Zealand.45

    Analysis tools such as these have been developed in secret over m any years, often at huge cost. That this tool was shared, even in trial version with Five Eyes partners, is an im portant indicator of how tightly integrated the relationship is. Subsequent related program m es codenam ed TRAILBLAZER, TURBULENC E and TRAFFIC THIEF were later adopted and used by Five Eyes partners.46

    M ore recently, the G uardian reported47 that 300 analysts from G C HQ and 250 from the NSA were directly assigned to exam ine m aterial collected under the TEM PO RA program m e. By placing taps at key undersea fibre optic cable landing stations, the program m e is able to intercept a significant portion of the com m unications that traverses the UK. TEM PO RA stores content for three days and m etadata for 30 days. O nce content and data are collected, they can be filtered.

    The precise nature of G C HQ s filters rem ains secret. Filters could be applied based on type of traffic (e.g. Skype, Facebook, Em ail), origin/destination of traffic, or to conduct basic keyw ord searches, am ong m any other purposes. Reportedly, approxim ately 40,000 search term s have been chosen and applied by G C HQ , and another 31,000 by the NSA to inform ation collected via TEM PO RA.

    G C HQ have had staff exam ining collected m aterial since the projects inception in 2008, with N SA analysts brought to trial runs of the technology in sum m er 2011. Full access was provided to NSA by autum n 2011. An additional 850,000 NSA em ployees and US private contractors with top-secret clearance reportedly also have access to G C HQ databases. G C HQ boasted that it had given the NSA 36% of all the raw inform ation the British had intercepted from com puters the agency was m onitoring.48 Additional reporting from G C HQ internal docum ents explains how they "can now interchange 100% of G C HQ End Point Projects with NSA."49

    G C HQ received 100 m illion ($160 m illion) in secret NSA funding over the last three years to assist in the running of this project. This relationship was characterized by Sir David O m and, form er Director of G C HQ , as a collaboration thats worked very well [ ] [w ]e have the brains; they have the m oney.50

    45 http://m otherboard.vice.com /blog/the-nsa-reportedly-tested-its-top-spyw are-on-new -zealand

    46 http://w w w.sm h.com .au/w orld/snow den-reveals-australias-links-to-us-spy-w eb-20130708-2plyg.htm l

    47 An early version of TEM PO RA is referred to as the C heltenham Processing C entre, additionally

    codenam ed TIN T, and is described as a "joint G C HQ /N SA research initiative". The G uardian quotes an internal G C HQ report that claim s "G C HQ and N SA avoid processing the sam e data tw ice and proactively seek to converge technical solutions and processing architectures." It w as additionally reported that N SA provided G C HQ w ith the technology necessary to sift through the m aterial collected. 48 http://w w w.theguardian.com /w orld/2013/nov/02/nsa-portrait-total-surveillance

    49 G C HQ : Inside the top secret w orld of Britains biggest spy agency, The G uardian, 2 August 2013,

    available at http://w w w.theguardian.com /w orld/2013/aug/02/gchq-spy-agency-nsa-snow den 50 http://w w w.japantim es.co.jp/new s/2013/11/18/w orld/britains-gchq-the-brains-am ericas-nsa-the-m oney-

    behind-spy-alliance/

  • Liaison officers are charged with the ultim ate responsibility of ensuring continued harm ony and cooperation between their agencies and as Jam es Bam ford, author or m ultiple books on the NSA explains it is the senior liaison officers, the SIG INT com m unity's version of am bassadors, who control the day-to-day relations between the UKUSA partners. And it is for that reason that the post of SUSLO (O ffice of the Senior United States Liaison O fficer) at NSA is both highly prized and carefully considered.51 These positions to facilitate co-operation continue to exist throughout the arrangem ent. A recent diplom atic cable from the US Am bassador in W ellington, New Zealand, released by W ikiLeaks, noting that [t]he National Security Agency (NSA) has requested a new, perm anent position in W ellington.52 The cable w ent on to state:

    The new position will advance US interests in New Zealand by im proving liaison and cooperation on vital signals intelligence m atters. This is an area where the US and NZ already work together closely and profitably, and continuing to build and expand that relationship clearly stands to benefit both countries. This is especially true in the post-Septem ber 11 environm ent, where NZ SIG INT capabilities significantly enhance our com m on efforts to com bat terrorism in the region and the world.

    It is believed that m uch of the intelligence collected under the Five Eyes arrangem ent can be accessed by any of the Five Eyes partners at any tim e. Shared NSA-G C HQ wikis are used by both parties to exchange surveillance tips53 and leaked NSA docum ents reveal that different Five Eyes partners have created shared and integrated databases, as revealed by one NSA docum ent that references G C HQ -accessible 5-eyes [redacted] databases.54 O ne G uardian article explained:

    G aining access to the huge classified data banks appears to be relatively easy. Legal training sessions which m ay also be required for access to inform ation from Australian, C anadian, or New Zealand agencies suggest that gaining credentials for data is relatively easy. The sessions are often done as self-learning and self-assessm ent, with "m ultiple choice, open-book" tests done at the agent's own desk on its "iLearn" system . Agents then copy and paste their passing result in order to gain access to the huge databases of com m unications.55

    A core program m e that provides this capability is known as XKEYSC O RE. That has been described by internal NSA presentations as an analytic fram ework which enables a

    51 The Puzzle Palace: A Report on Am erica's M ost Secret Agency, Jam es Bam ford, accessible at:

    http://cryptom e.org/jya/pp08.htm 52 http://w w w.nzherald.co.nz/nz/new s/article.cfm ?c_id=1&objectid=10695100

    53 http://m obile.nytim es.com /2013/11/03/w orld/no-m orsel-too-m inuscule-for-all-consum ing-

    nsa.htm l?pagew anted=2,all&hp=&_r=0; the N ew Zealand G C SBs 2001/2012 Annual Report refers the G C SB being able to leverage off the training program m es of its overseas partners to increase opportunities for staff to develop their tradecraft skills. Available at: http://w w w.gcsb.govt.nz/new sroom /annual-reports/Annual% 20Report% 202012.pdf, p. 11. 54 US and UK struck secret deal to allow N SA to 'unm ask' Britons' personal data, 20 August 2013, available

    at: http://w w w.theguardian.com /w orld/2013/nov/20/us-uk-secret-deal-surveillance-personal-data# 55 Portrait of the N SA: no detail too sm all in quest for total surveillance, 2 N ovem ber 2013, accessible at:

    http://w w w.theguardian.com /w orld/2013/nov/02/nsa-portrait-total-surveillance

  • single search to query a 3-day rolling buffer of all unfiltered data stored at 150 global sites on 700 database servers.56

    The NSA XKEYSC O RE system has sites that appear in Five Eyes countries,57 w ith the N ew Zealands W aihopai Station, Australias Pine G ap, Shoal Bay, Riverina and G eraldton Stations, and the UKs M enwith Hill base all present. It has been confirm ed that all these bases use XKEYSC O RE and contribute to the program .58 The system indexes e-m ail addresses, file nam es, IP addresses and port num bers, cookies, webm ail and chat usernam es and buddylists, phone num bers, and m etadata from web browsing sessions including searches queried am ong m any other types of data that flows through their collection points. It has been reported that XKEYSC O RE

    processes all signals before they are shunted off to various "production lines" that deal with specific issues and the exploitation of different data types for analysis - variously code-nam ed NUC LEO N (voice), PINW ALE (video), M AINW AY (call records) and M ARINA (internet records)59

    O ne of these program m es, M ARINA, has the ability to look back on the last 365 days' worth of DNI m etadata seen by the SIG INT collection system , regardless whether or not it w as tasked for collection60 giving Five Eyes partners the ability to look back on a full year's history for any individual whose data was collected either deliberately or incidentally by the system .

    The no-spy deal m yth

    W hile UKUSA is often reported as having created a no spy pact between Five Eyes States, there is little in the original text to support such a notion. C rucially, first and forem ost no clause exists that attem pts in any form to create such an obligation. Instead, if anything the converse is true: the scope of the arrangem ent consciously carves out space to perm it State-on-State spying even by parties to UKUSA. It lim its the scope to governing the relations of above-m entioned parties in com m unications intelligence m atters only and m ore specifically that the exchange of such m aterial is not prejudicial to national interests.61

    Additionally, while the text m andates that each party shall m aintain, in the country of the other, a senior liaison officer accredited to the other, once again the text is caveated, stating that

    56 http://w w w.theguardian.com /w orld/interactive/2013/jul/31/nsa-xkeyscore-program -full-presentation

    57 http://w w w.theguardian.com /w orld/interactive/2013/jul/31/nsa-xkeyscore-program -full-presentation

    page 5 58 http://w w w.sm h.com .au/w orld/snow den-reveals-australias-links-to-us-spy-w eb-20130708-2plyg.htm l

    59 http://w w w.sm h.com .au/w orld/snow den-reveals-australias-links-to-us-spy-w eb-20130708-2plyg.htm l

    60 http://w w w.theguardian.com /w orld/2013/sep/30/nsa-am ericans-m etadata-year-docum ents

    61 page 9

  • [l]iaison officers of one party shall norm ally have unrestricted access to those parts of the others agencies which are engaged directly in the production of C O M INT, except such parts thereof which contain unexchangable inform ation.62

    As best can be ascertained, therefore, it seem s there is no prohibition on intelligence-gathering by Five Eyes States with respect to the citizens or residents of other Five Eyes States. There is instead, it seem s, a general understanding that citizens will not be directly targeted, and where com m unications are incidentally intercepted there will be an effort to m inim ize the use and analysis thereof by the intercepting State. This analysis has been confirm ed by a leaked draft 2005 NSA directive entitled C ollection, Processing and Dissem ination of Allied C om m unications.63 This directive carries the classification m arking NF m eaning No Foreign, short for NO FO RN or "Not Releasable to Foreign Nationals." The directive states:

    Under the British-U.S. C om m unications Intelligence Agreem ent of 5 M arch 1946 (com m only known as the United Kingdom /United States of Am erican (UKUSA) Agreem ent), both governm ents agreed to exchange com m unications intelligence products, m ethods and techniques as applicable so long as it was not prejudicial to national interests. This agreem ent has evolved to include a com m on understanding that both governm ents will not target each others citizens/persons. However when it is in the best interest of each nation, each reserve the right to conduct unilateral C O M INT against each others citizens/persons. Therefore, under certain circum stances, it m ay be advisable and allowable to target Second Party persons and second party com m unications system s unilaterally when it in the best interests of the U.S and necessary for U.S national security. Such targeting m ust be perform ed exclusively within the direction, procedures and decision processes outlined in this directive.64

    The directive continues:

    W hen sharing the planned targeting inform ation with a second party would be contrary to US interests, or when the second party declines a collaboration proposal, the proposed targeting m ust be presented to the signals intelligence director for approval with justification for the criticality of the proposed collection. If approved, any collection, processing and dissem ination of the second party inform ation m ust be m aintained in NoForn channels." 65

    Significantly, the details of som e NSA program m es, not intended to be shared with Five Eyes countries, indicate that intelligence collection is taking place in Five Eyes partner countries. NSAs big data analysis and data visualization system BO UNDLESS

    62 page 23

    63 US and UK struck secret deal to allow N SA to 'unm ask' Britons' personal data, 20 August 2013, available

    at: http://w w w.theguardian.com /w orld/2013/nov/20/us-uk-secret-deal-surveillance-personal-data# 64 D raft 2005 directive, reprinted in US and UK struck secret deal to allow N SA to 'unm ask' Britons'

    personal data, The G uardian, 20 August 2013, available at: http://w w w.theguardian.com /w orld/2013/nov/20/us-uk-secret-deal-surveillance-personal-data# 65 Ibid.

  • INFO RM AN T66 are m arked TO P SEC RET//SI//NO FO RN. These docum ents show that in M arch 2013 the agency collected 97 billion pieces of intelligence from com puter networks w orldwide. The docum ent grades countries based on a color schem e of green (least subjected to surveillance) through to yellow and orange and finally, red (m ost surveillance). Five Eyes partners are not excluded from the m ap and instead are shaded green, w hich is suggestive that som e collection of these States citizens or com m unications is occurring.

    C hanges to the original arrangem ent, however, suggest a convention is in place between at least two of the Five Eyes partners UK and US that prevents deliberate collection or targeting of each others citizens unless authorised by the other State. The 2005 draft directive states: [t]his agreem ent [UKUSA] has evolved to include a com m on understanding that both governm ents will not target each others citizens/persons. This of course has not prevented spying without consent, but it appears it is preferable that when Five Eyes partners want to spy on another m em ber of the agreem ent, they do so with the other countrys consent. It is unclear on what basis consent m ay be given or withheld, but the directive explains:

    "There are circum stances when targeting of second party persons and com m unications system s, with the full knowledge and co-operation of one or m ore second parties, is allowed when it is in the best interests of both nations."67

    The directive goes on to state that these circum stances m ight include "targeting a UK citizen located in London using a British telephone system ;" "targeting a UK person located in London using an internet service provider (ISP) in France; or "targeting a Pakistani person located in the UK using a UK ISP."

    Historically, the Five Eyes m em bers expected each other to m ake attem pts to m inim ise the retention and dissem ination of inform ation about Five Eyes partners once intercepted. Duncan C am pbell explains:

    New Zealand officials were instructed to rem ove the nam es of identifiable UKUSA citizens or com panies from their reports, inserting instead words such as "a C anadian citizen" or "a US com pany". British C O M INT staff have described follow ing sim ilar procedures in respect of US citizens following the introduction of legislation to lim it NSA's dom estic intelligence activities in 1978. The Australian governm ent says that "DSD and its counterparts operate internal procedures to satisfy them selves that their national interests and policies are respected by the others the Rules [on SIG INT and Australian persons] prohibit the dissem ination of inform ation relating to Australian persons gained accidentally during the course of routine collection of foreign com m unications; or the reporting or recording of the

    66 D avid C am eron's phone 'not m onitored' by US, BBC N ew s, 26th O ctober 2013, available at:

    http://w w w.theguardian.com /w orld/interactive/2013/jun/08/nsa-boundless-inform ant-data-m ining-slides 67 US and UK struck secret deal to allow N SA to 'unm ask' Britons' personal data, 20 August 2013, available

    at: http://w w w.theguardian.com /w orld/2013/nov/20/us-uk-secret-deal-surveillance-personal-data#

  • nam es of Australian persons m entioned in foreign com m unications."68

    A 2007 docum ent explains that this is no longer an expectation, as the Five Eyes are consenting to the broad trawling of data incidentally intercepted by other Five Eyes partners. The docum ent explains:

    "Sigint [signals intelligence] policy and the UK Liaison O ffice here at NSAW [N SA W ashington] worked together to com e up with a new policy that expands the use of incidentally collected unm inim ized UK data in SIG INT analysis[ ] Now SID analysts can unm inim ize all incidentally collected UK contact identifiers, including IP and em ail addresses, fax and cell phone num bers, for use in analysis."69

    O utside the Second Party partners that m ake up the Five Eyes, there is no am biguity about who else can be spied on, including third party partners. An internal NSA presentation m ade clear [w]e can, and often do, target the signals of m ost 3rd party foreign partners.70 In other words, the intelligence services of the Five Eyes agencies m ay spy on each other, with som e expectation that they will be consulted when this occurs; everyone else is fair gam e, even if they have a separate intelligence-sharing agreem ent with one or several Five Eyes m em bers.

    This understanding that allies m ay still be spied upon has been echoed in other public statem ents m ade by the US, which in the wake of the Snowden revelations has confirm ed, through an unnam ed senior official, that "we have not m ade across the board changes in policy like, for exam ple, term inating intelligence collection that m ight be aim ed at all allies."71

    Spying on heads of State

    Q uestions rem ain, however, as to whether arrangem ents within Five Eyes m ay prevent the surveillance of the respective heads of States of Five Eyes partners. It has been confirm ed by the W hite House that UK Prim e M inister David C am erons com m unications have not, are not and will not be m onitored by the US.72 However, while New Zealand Prim e M inister John Key has agreed that he is satisfied that the US has not spied on him and that he is confident of the position, he will not confirm whether this is because the Five Eyes m em bers have agreed to this.73 Additionally after G erm an C hancellor Angela

    68 http://w w w.duncancam pbell.org/m enu/surveillance/echelon/IC 2000_Report% 20.pdf page 3

    69 http://w w w.theguardian.com /w orld/2013/nov/20/us-uk-secret-deal-surveillance-personal-data#

    70 http://w w w.spiegel.de/international/w orld/secret-docum ents-nsa-targeted-germ any-and-eu-buildings-a-

    908609.htm l 71 Feinstein: W hite House W ill Stop Spying on Allies. W hite House: N ot So Fast , The Atlantic W ire, 28th

    O ctober 2013, available at: http://w w w.thew ire.com /politics/2013/10/sen-feinstein-w hite-house-w ill-stop-spying-allies/71023/ 72 http://w w w.bbc.co.uk/new s/uk-politics-24668861

    73John Key, 29 O ctober 2013, Post-C abinet Press C onference, audio available at: http://w w w .scoop.co.nz/stories/HL1310/S00224/pm s-press-conference-audio-m eridian-spying-and-fonterra.htm Key confident US didn't spy on him , Stuff.co.nz, 29th O ctober 2013, available at: http://w w w.stuff.co.nz/national/politics/9338530/Key-confident-US-didn-t-spy-on-him

  • M erkel dem anded74 that the United States sign a no-spy agreem ent to prohibit the bilateral spying between nations, the US has indicated that while they would be willing to engage in "a new form of collaboration a no-spy pact is not on the table.75

    Allied spying m ore broadly is a com m on activity. In 1960, when Bernon M itchell and W illiam M artin infam ously defected to the Soviet Union, they revealed the scope of NSAs activities, reporting that:

    W e know from working at NSA [that] the United States reads the secret com m unications of m ore than forty nations, including its own allies NSA keeps in operation m ore than 2000 m anual intercept positions Both enciphered and plain text com m unications are m onitored from alm ost every nation in the world, including the nations on whose soil the intercept bases are located.76

    O ther surveillance partnerships

    O ver alm ost seven decades, the Five Eyes alliance has splintered notably only once when, in 1985, New Zealands new Labour G overnm ent refused to allow a US ship to visit New Zealand, in accordance with the governm ents anti-nuclear policy (not to allow ships into its New Zealand waters without confirm ation they were neither nuclear-pow ered, nor carrying nuclear weapons). This policy was turned into law in 1987 with the creation of the New Zealand Nuclear Free Zone.77 The political fallout from the introduction of the policy included the splintering off of New Zealand, at least tem porarily, from the Five Eyes, and the creation of a Four Eyes alliance with the acronym AC G U. This split has been confirm ed in a num ber of m ilitary classification m arking docum ents.78 It is understood that there was som e distancing of New Zealand from the Five Eyes in the years im m ediately following the incident, but that the schism was less significant than previously thought;79 by m aking reference to docum ents dated in the past decade, released as part of the Snowden leaks, it is clear that New Zealand rem ains an integral part of the Five Eyes alliance.

    74 G erm any to seek no spying deal w ith US, Financial Tim es, 12th August 2013, available at:

    http://w w w.ft.com /cm s/s/0/67eef7f4-0375-11e3-980a-00144feab7de.htm l 75 G erm ans Rejected: US Unlikely to O ffer 'N o-Spy' Agreem ent, D er Spiegel, 12th N ovem ber 2013,

    available at: http://w w w.spiegel.de/international/germ any/us-declines-no-spy-pact-w ith-germ any-but-m ight-reveal-snow den-secrets-a-933006.htm l 76 Inside Echelon, D uncan C am pbell, 2000, available at: http://w w w.heise.de/tp/artikel/6/6929/1.htm l

    77 N ew Zealand N uclear Free Zone, D isarm am ent, and Arm s C ontrol Act 1987: s 9(2) states The Prim e

    M inister m ay only grant approval for the entry into the internal w aters of N ew Zealand by foreign w arships if the Prim e M inister is satisfied that the w arships w ill not be carrying any nuclear explosive device upon their entry into the internal w aters of N ew Zealand. Section 11 states Entry into the internal w aters of N ew Zealand by any ship w hose propulsion is w holly or partly dependent on nuclear pow er is prohibited.) 78 http://w w w.afcea.org/events/pastevents/docum ents/LW N 11_Track_1_Session_5.pdf;

    https://w w w 2.centcom .m il/sites/foia/rr/C EN TC O M % 20Regulation% 20C C R% 2025210/W ardak% 20C H-47% 20Investigation/r_EX% 2060.pdf 79 See, N icky Hager, Secret Pow er, 1996, pp. 23-24.

  • Additionally, other Eyes-like relationships exist, in various form s with m em bership ranging through 3-, 4-, 6-, 7-, 8-, 9- and 10- and 14-Eyes com m unities. These Eyes reference different com m unities with varying focuses dealing with m ilitary coalitions, intelligence partnerships with m any having established dedicated com m unication networks.80 The G uardian describes two such arrangem ents:

    the N SA has other coalitions, although intelligence-sharing is m ore restricted for the additional partners: the 9-Eyes, which adds Denm ark, France, the Netherlands and Norway; the 14-Eyes, including G erm any, Belgium , Italy, Spain and Sweden; and 41-Eyes, adding in others in the allied coalition in Afghanistan.81

    This is supported by statem ents m ade by an ex-senior NATO intelligence officer:

    "The Five Eyes SIG INT com m unity also plays a core role in a larger galaxy of SIG INT organizations found in established dem ocratic states, both west and east. Five Eyes plus gatherings in the west include C anadas NATO allies and im portant non-NATO partners such as Sweden. To the east, a Pacific version of the Five Eyes plus grouping includes, am ong others, Singapore and South Korea. Such extensions add reach and layering to Five Eyes SIG INT capabilities."82

    A New York Tim es article83 again confirm s such groups exist by acknowledging "[m ]ore lim ited cooperation occurs with m any m ore countries, including form al arrangem ents called Nine Eyes and 14 Eyes and Nacsi, an alliance of the agencies of 26 NATO countries." Different intelligence co-operation groups also exist outside the broader abovem entioned structures dealing with narrower areas of collaboration.84 W ithin these groups, no attem pt to create a no-spy deal has been m ade; these countries "can gather intelligence against the United States through C NE (com puter network exploitation) and therefore share C NE and C ND (C om puter Network Defense) can som etim es pose clear risks."85

    80 http://electrospaces.blogspot.co.uk/2013/11/five-eyes-9-eyes-and-m any-m ore.htm l

    81 http://w w w.theguardian.com /w orld/2013/nov/02/nsa-portrait-total-surveillance

    82 C anada and the Five Eyes Intelligence C om m unity, Jam es C ox, Strategic Studies W orking G roup

    Papers, D ecem ber 2012, accessible at: http://w w w.cdfai.org/PD F/C anada% 20and% 20the% 20Five% 20Eyes% 20Intelligence% 20C om m unity.pdf page 7 83 N o M orsel Too M inuscule for All-C onsum ing N .S.A. , N ew York Tim es, 2nd N ovem ber, 2013

    http://m obile.nytim es.com /2013/11/03/w orld/no-m orsel-too-m inuscule-for-all-consum ing-nsa.htm l?pagew anted=2,all&hp=&_r=0 84 O ne co-operation group is m entioned in an N SA docum ent entitled sharing com puter netw orking

    operations cryptologic inform ation w ith foreign partners. This docum ent nam es the Five Eyes partnership a Tier A group that has com prehensive cooperation. The m uch larger Tier B of 19 countries has focused co-operation and is m ostly m ade up of European States, except Japan, Turkey and South Korea. The full list includes Austria, Belgium , C zech Republic, D enm ark, G erm any, G reece, Hungry, Iceland, Italy, Japan, Luxem bourg, N etherlands, N orw ay, Poland, Portugal, South Korea, Spain, Sw eden, Sw itzerland and Turkey. El C N I facilit el espionaje m asivo de EEUU a Espaa , El M undo, 10th O ctober, 2013, accessible at: http://w w w.elm undo.es/espana/2013/10/30/5270985d63fd3d7d778b4576.htm l 85 El C N I facilit el espionaje m asivo de EEUU a Espaa , El M undo, 10th O ctober, 2013, accessible at:

    http://w w w.elm undo.es/espana/2013/10/30/5270985d63fd3d7d778b4576.htm l

  • It w as reported86 in 2010 w hen the UKUSA docum ents were first released, that Norway joined [the eavesdropping network] in 1952, Denm ark in 1954, and G erm any in 1955 and that Italy, Turkey, the Philippines and Ireland are also m em bers. This however has been contested with a journalist working on the current Snowden docum ents staying they w ere confused by that reference.87

    The NATO Special C om m ittee, m ade up of the heads of the security services of NATO m em ber countries, also provides a platform for intelligence sharing, although due to the alliances diverse and growing m em bership it is thought there are concerns about sharing sensitive m ilitary and SIG INT docum ents on a system atic basis.88 As explained by Scheinen and Verm eulen,89 how ever:

    The Agreem ent between the parties to the North Atlantic Treaty for the security of inform ation of 1949 is quite short, but article 5 for instance gives states carte blanche to m ake any other agreem ent relating to the exchange of classified inform ation originated by them , leaving room for m any technically detailed arrangem ents in which the actual cooperation is being regulated.

    86 http://w w w.theguardian.com /w orld/2010/jun/25/intelligence-deal-uk-us-released

    87 https://tw itter.com /jam esrbuk/status/403643887685611520

    88 The 28 N ATO countries are Albania, Belgium , Bulgaria, C anada, C roatia, C zech Republic, D enm ark,

    Estonia, France, G erm any, G reece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxem bourg, N etherlands, N orw ay, Poland, Portugal, Rom ania, Slovakia, Slovenia, Spain, Turkey, United Kingdom , United States, 89 Scheinin, M and Verm eulen, M , Intelligence cooperation in the fight against terrorism through the lens

    of hum an rights law and the law of state responsibility, in Born, Leigh and W ills (eds), International Intelligence C ooperation and Accountability (O xon: Routledge, 2011), 256.

  • Chapter Tw o Secret law is not law

    The intelligence agencies of the Five Eyes countries conduct som e of the m ost im portant, com plex and far-reaching activities of any State agency, and they do so under behind the justification of a thicket of convoluted and obfuscated legal and regulatory fram eworks. The laws and agreem ents that m ake up the Five Eyes arrangem ent and apply it to dom estic contexts lack any sem blance of clarity or accessibility necessary to ensure that the individuals whose rights and interests are affected by them are able to understand their application. As such, they run contrary to the fundam ental building blocks of the rule of law.

    The rule of law and accessibility

    The accessibility of law is a foundational elem ent the rule of law. M any have different view s of w hat exactly constitutes the rule of law, but it is widely understood to play a critical role in checking excessive or arbitrary power. C ore to the rule of law is the idea that all individuals are able to know what law is exercised over them by those in power, and how conduct m ust be accordingly regulated to ensure it is in com pliance with such laws. Lord Neubergers first principle of the rule of law explains just how critical the accessibility of law is to the rule of law:

    At its m ost basic, the expression connotes a system under which the relationship between the governm ent and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires m ore than that. First, the laws m ust be freely accessible: that m eans as available and as understandable as possible.90

    If law itself isnt published in a clear and understandable way then citizens cannot evaluate when an action by another person, or by their governm ent, is unlawful. As Tom Bingham explains, if the law is not sufficiently clear, then it becom es inaccessible; if people cannot properly access (i.e. understand) the law that they are governed by, then so far as they are concerned, they are being governed by arbitrary power. For all actions by the State there m ust be a legal justification. Sim ply because there is law on the statute books does not necessarily m ean that it isnt arbitrary.

    Accessing the law s regulating the actions of the Five Eyes

    It has been alleged that there is no form al over-arching international agreem ent that governs all Five Eyes intelligence relationships,91 but rather a m yriad of m em oranda,

    90 http://w w w.suprem ecourt.gov.uk/docs/speech-131015.pdf

    91 C anada and the Five Eyes Intelligence C om m unity, Jam es C ox, Strategic Studies W orking G roup

    Papers, D ecem ber 2012, accessible at: http://w w w.cdfai.org/PD F/C anada% 20and% 20the% 20Five% 20Eyes% 20Intelligence% 20C om m unity.pdf

  • agreem ents, and conventions that m ust be considered in tandem with com plex national legislation.

    Scheinin and Verm eulen argue that

    The overwhelm ing m ajority of these intelligence cooperation arrangem ents are secret or at least they are never published nor registered at the UN Secretariat pursuant to Article 102 of the UN C harter.92 From the perspective of international law they are likely to fall within a m urky area of non-treaty arrangem ents, which can include arrangem ents such as m em oranda of understanding, political agreem ents provisional understanding, exchanges of notes, adm inistrative agreem ents, term s of reference, declarations and virtually every other nam e one can think of.93

    How ever, taken together, the Five Eyes agreem ents arguably rise to the level of an enforceable treaty under international law. It is clear from their scope and wide-reaching ram ifications that the Five Eyes agreem ents im plicate the rights and interests of individuals sufficiently to raise the agreem ents to the level of legally-binding treaty.

    In any event, it is im possible to know whether the initial intentions of the drafters or the scope of the legal obligations created under the agreem ents elevate them to the status of legally-binding treaty because the agreem ents are com pletely hidden from public view . Indeed, not only are the public unable to access and scrutinise the agreem ents that regulate the actions of the Five Eyes, but even the intelligence services them selves do not have a com plete picture of the extent of intelligence sharing activities. The NSA adm itted during legal proceedings in 2011 that the inform ation-gathering infrastructure was so com plex that "there was no single person with a com plete understanding. 94

    The dom estic legal fram eworks im plem enting the obligations created by the Five Eyes obligations are equally obfuscated. W ith respect to the US, for exam ple, the NSA acknow ledged in a recently-released strategy docum ent that

    [t]he interpretation and guidelines for applying [Am erican] authorities, and in som e cases the authorities them selves, have not kept pace with the com plexity of the technology and target environm ents, or the operational expectations levied on NSAs m ission.95

    page 4 92 Article 102 of the UN C harter states that: 1. Every treaty and every international agreem ent entered into

    by any M em ber of the United N ations after the present C harter com es into force shall as soon as possible be registered w ith the Secretariat and published by it. 2. N o party to any such treaty or international agreem ent w hich has not been registered in accordance w ith the provisions of paragraph 1 of this Article m ay invoke that treaty or agreem ent before any organ of the United N ations. 93 Scheinin, M and Verm uelen, M , Intelligence cooperation in the fight against terrorism through the lens

    of hum an rights law and the law of state responsibility, in Born, Leigh and W ills (eds), International Intelligence C ooperation and Accountability (O xon: Routledge, 2011), 256. 94http://w w w.theregister.co.uk/Print/2013/09/11/declassified_docum ents_show _nsa_staff_abused_tapping_m isled_courts/ 95 (U) SIG IN T Strategy, 2012-2016, 23 February 2012

  • The chair of the Senate intelligence com m ittee, Diane Feinstein, has strongly criticised the actions taken by the NSA under the purported am bit of the relevant legislation, noting that [ ] it is clear to m e that certain surveillance activities have been in effect for m ore than a decade and that the Senate Intelligence C om m ittee was not satisfactorily inform ed.96

    In the UK, the Intelligence and Security C om m ittee in charge of overseeing the actions of the UK intelligence agencies, including G C HQ have responded to the Snowden leaks by rem arking:

    It has been alleged that G C HQ circum vented UK law by using the NSAs PRISM program m e to access the content of private com m unications [ ] and we are satisfied that they conform ed with G C HQ s statutory duties. The legal authority for this is contained in the Intelligence Services Act 1994.97

    Yet the chair of the ISC has in fact adm itted to confusion about whether if British intelligence agencies want to seek to know the content of em ails can they get round the norm al law in the UK by sim ply asking an Am erican agencies to provide that inform ation?98

    W hen the head of the com m ittee charged with overseeing the lawfulness of the actions of intelligence services is unsure as to whether such agencies have acted lawfully, there is plainly a serious dearth in the accessibility of law, calling into question the rule of law. W ithout law that is accessible, citizens are unable to regulate their conduct or scrutinise that of their governm ents. In such circum stances, it is im possible to verify whether governm ents are acting in accordance with the law as required of them under hum an rights law .

    Ensuring the Five Eyes act in accordance w ith the law

    There is a significant body of European C ourt of Hum an Rights jurisprudence on what constitutes interference in accordance with the law in the context of secret surveillance and inform ation gathering, such as that undertaken by the Five Eyes.

    The C ourt begins from the perspective that surveillance, particularly secret surveillance, is a significant infringem ent on hum an rights, and in order to be justified under the European C onvention on Hum an Rights m ust be sufficiently clear and precise to give citizens an adequate indication as to the circum stances in which and the conditions on

    96 Paul Lew is and Spencer Ackerm an, N SA: D ianne Feinstein breaks ranks to oppose US spying on

    allies, The G uardian, 29 O ctober 2013, available at http://w w w.theguardian.com /w orld/2013/oct/28/nsa-surveillance-dianne-feinstein-opposed-allies. 97 https://w w w.gov.uk/governm ent/uploads/system /uploads/attachm ent_data/file/225459/ISC -Statem ent-

    on-G C HQ .pdf 98 N icholas W atts, G C HQ broke law if it asked for N SA intelligence on UK citizens, The G uardian, 10

    June 2013, available at http://w w w.theguardian.com /w orld/2013/jun/10/gchq-broke-law -nsa-intelliegence

  • which public authorities are em powered to resort to this secret and potentially dangerous interference.99

    It m ust be clear what elem ents of the powers to intercept are incorporated in legal rules and what elem ents rem ain within the discretion of the executive and the law m ust indicate with reasonable clarity the scope and m anner of exercise of the relevant discretion conferred on the public authorities100 in order that individuals m ay have som e certainty about the laws to which they are subject and regulate their conduct accordingly.

    Yet the degree of certainty will depend on the circum stances.101 As the C ourt has noted, foreseeability in the special context of secret m easures of surveillance, such as the interception of com m unications, cannot m ean that an individual should be able to foresee when the authorities are likely to intercept his com m unications so that he can adapt his conduct accordingly...102

    W here a power vested in the executive is exercised in secret, however, the risks of arbitrariness are evident: in the words of the C ourt in W eber v G erm any, a system of secret surveillance for the protection of national security m ay underm ine or even destroy dem ocracy under the cloak of defending it.103 In such circum stances, is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becom ing m ore sophisticated 104

    W hat, then, does hum an rights law require of a law in order to ensure secret surveillance does not infringe the principles of accessibility and foreseeability? The C ourts decision in W eber is authoritative on this point:

    In its case law on secret m easures of surveillance, the C ourt has developed the following m inim um safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which m ay give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a lim it on the duration of telephone tapping; the procedure to be followed for exam ining, using and storing the data obtained; the precautions to be taken when com m unicating the data to other parties; and the circum stances in which recordings m ay or m ust be erased or the tapes destroyed.105

    99 M alone v United Kingdom (1985) 7 EHRR 14 [67]

    100 Ibid, at [79].

    101 O rm erod., R. and Hooper, Blackstones C rim inal Practice 2012, London 2012.

    102 W eber v G erm any, Application 54934/00, (2008) 46 EHRR SE5 at [77.]

    103 Ibid, at [106].

    104 Kruslin v France (1990) 12 EHHR 547, at [33].

    105 Ibid, at [95]

  • Applying hum an rights requirem ents to the law s of the Five Eyes

    There is no clear and accessible legal regim e that indicates the circum stances in which, and the conditions on which, Five Eyes authorities can request access to signals intelligence from , or provide such intelligence, to another Five Eyes authority. Each of the Five Eyes states have broad, vague dom estic laws that purport to warrant the sharing of and access to shared signal intelligence with the authorities of other States, but fail to set out m inim um safeguards or provide details of or restrictions upon the nature of intelligence sharing.

    In the United Kingdom , the ISC has indicated that the authority to share and receive intelligence is granted by the Intelligence Services Act 1994. Section 3(1) of the 1994 Act specifies the functions of G C HQ in these term s:

    (1) There shall continue to be a G overnm ent C om m unications Headquarters under the authority of the Secretary of State; and, subject to subsection (2) below, its functions shall be

    (a) to m onitor or interfere with electrom agnetic, acoustic and other em issions and any equipm ent producing such em issions and to obtain and provide inform ation derived from or related to such em issions or equipm ent and from encrypted m aterial; and (b) to provide advice and assistance [...]

    Section 3(2) of the 1994 Act specifies the purposes for which the functions referred to in s3(1)(a) shall be exercisable, and m akes clear that they shall be exercisable only -

    (a) in the interests of national security, with particular reference to the defence and foreign policies of Her M ajestys G overnm ent in the United Kingdom ; or

    (b) in the interests of the econom ic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or

    (c) in support of the prevention or detection of serious crim e.

    Section 4(2)(a) of the 1994 Act im poses on the Director of G C HQ a duty to ensure (a) that there are arrangem ents for securing that no inform ation is obtained by

    G C HQ except so far as necessary for the proper discharge of its functions and that no inform ation is disclosed by it except so far as necessary for that purpose or for the purpose of any crim inal proceedings.

    In the United States, the scope of intelligence activities was initially set down in Executive O rder 12333 United States intelligence activities, of Decem ber 4, 1981.106 Even though the structure of the United States intelligence com m unity changed considerably after 9/11, the powers granted in the Executive O rder nevertheless continue to be invoked.

    106 http://w w w.archives.gov/federal-register/codification/executive-order/12333.htm l#1.9

  • Section 1.12 (b) provides that the responsibilities of the National Security Agency shall include, inter alia:

    (5) Dissem ination of signals intelligence inform ation for national foreign intelligence purposes to authorized elem ents of the Governm ent, including the m ilitary services, in accordance with guidance from the Director of Central Intelligence; (6) Collection, processing and dissem ination of signals intelligence inform ation for counterintelligence purposes; (7) Provision of signals intelligence support for the conduct of m ilitary operations in accordance with tasking, priorities, and standards of tim eliness assigned by the Secretary of Defense. If provision of such support requires use of national collection system s, these system s will be tasked within existing guidance from the Director of Central Intelligence; [ ] (12) Conduct of foreign cryptologic liaison relationships, with liaison for intelligence purposes conducted in accordance with policies form ulated by the Director of Central Intelligence [ ]

    Section 1.7 deals with the responsibilities of Senior Officials of the Intelligence Com m unity, and designates the following responsibility to the Director of Central Intelligence:

    (f) Dissem inate intelligence to cooperating foreign governm ents under arrangem ents established or agreed to by the Director of Central Intelligence [ ]

    Section 1.8 relates to the Central Intelligence Agency, and includes am ong that bodys functions to

    (a) Collect, produce and dissem inate foreign intelligence and counterintelligence, including inform ation not otherwise obtainable [ ]

    The legislation in Australia is slightly m ore detailed with regards to the circum stances in which intelligence can be shared with and received from foreign intelligence agencies. The actions of the Australian intelligence agencies are governed by the Intelligence Services Act 2001, section 7 of which articulates the functions of the Australian Signals Directorate, which include

    (1) to obtain intelligence about the capabilities, intentions or activities of people or organisations outside Australia in the form of electrom agnetic energy, whether guided or unguided or both, or in the form of electrical, m agnetic or acoustic energy, for the purposes of m eeting the requirem ents of the G overnm ent, and in particular the requirem ents of the Defence Force, for such intelligence; and

    (2) to com m unicate, in accordance with the G overnm ents requirem ents, such intelligence; and

    (3) to provide m aterial, advice and other assistance to C om m onwealth and State authorities on m atters relating to the security and integrity of inform ation that is processed, stored or com m unicated by electronic or sim ilar m eans; [ ]

  • Pursuant to s11(2AA) of the Act, intelligence agencies m ay com m unicate incidentally obtained intelligence to appropriate C om m onwealth or State authorities or to authorities of other countries approved under paragraph 13(1)(c) if the intelligence relates to the involvem ent, or likely involvem ent, by a person in one or m ore of the following activities:

    (a) activities that present a significant risk to a persons safety; (b) acting for, or on behalf of, a foreign power; (c) activities that are a threat to security; (d) activities related to the proliferation of weapons of m ass destruction or the

    m ovem ent of goods listed from tim e to tim e in the Defence and Strategic G oods List (within the m eaning of regulation 13E of the C ustom s (Prohibited Exports) Regulations 1958);

    (e) com m itting a serious crim e.

    Section 13(1)(c) perm its the agency to cooperate with authorities of other countries approved by the M inister as being capable of assisting the agency in the perform ance of its functions.

    The New Zealand sim ilarly provides the G overnm ent C om m unications Security Bureau with broad powers and functions, including under section 8A

    (a) to co-operate with, and provide advice and assistance to, any public authority whether in New Zealand or overseas, or to any other entity authorised by the M inister, on any m atters relating to the protection, security, and integrity of

    (i) com m unications, including those that are processed, stored, or com m unicated in or through inform ation infrastructures; and (ii)inform ation infrastructures of im portance to the G overnm ent of New Zealand; [ ]

    and under section 8B

    (a) to gather and analyse intelligence (including from inform ation infrastructures) in accordance with the G overnm ent's requirem ents about the capabilities, intentions, and activities of foreign persons and foreign organisations; and

    (b) to gather and analyse intelligence about inform ation infrastructures; and (c) to provide any intelligence gathered and any analysis of the intelligence to

    (i) the M inister; and (ii) any person or office holder (whether in New Zealand or overseas) authorised by the M inister to receive the intelligence.

    Section 8B(2) also sanctions the sharing of inform ation with foreign intelligence authorities, stipulating [f]or the purpose of perform ing its function under subsection (1)(a) and (b), the Bureau m ay co-operate with, and provide advice and assistance to, any public authority (whether in New Zealand or overseas) and any other entity authorised by the M inister for the purposes of this subsection.

  • In Canada, the functions of the C om m unications Security Establishm ent C anada (C SEC ) are articulated in Part V.1 to the National Defence Act. Section 273.64(1) sets out C SEC s three-part m andate, nam ely

    (a) to acquire and use inform ation from the global inform ation infrastructure for the purpose of providing foreign intelligence, in accordance with G overnm ent of C anada intelligence priorities;

    (b) to provide advice, guidance and services to help ensure the protection of electronic inform ation and of inform ation infrastructures of im portance to the G overnm ent of C anada; and

    (c) to provide technical and operational assistance to federal law enforcem ent and security agencies in the perform ance of their lawful duties.

    Part V.1 of the National Defence Act in relation to C SEC does not contain any provisions on cooperation with other agencies, including foreign agencies.

    An analysis of these cursory legal provisions reveals that they fall far short of describing the fluid and integrated intelligence sharing activities that take place under the am bit of the Five Eyes arrangem ent with sufficient clarity and detail to ensure that individuals can forsee their application. None of the dom estic legal regim es set out the circum stances in which intelligence authorities can obtain, store and transfer nationals or residents private com m unication and other inform ation that are intercepted by another Five E