Privacy International Sues US Government Over Denied Access To Five Eyes Surveillance Agreements

Published: July 15, 2017

The last thing anyone heard about Five Eyes surveillance partnerships via official channels was more than seven years ago. In the intervening years, leaked documents have shed a little light on the information sharing Five Eyes countries (US, UK, Canada, Australia, New Zealand) engage in. But the last Five Eyes agreement released is now more than 60 years old.

The Five Eyes group has existed since 1946 and the last document officially published about it comes from 1955. Since then, vast technological changes have altered how national security bodies collect and store information.

The modern era of Five Eyes surveillance has only been glimpsed through leaked Snowden documents. Coverage of these documents is noted in Privacy International's FOIA lawsuit [PDF] against a handful of US government agencies. PI has been asking for updated versions of the Five Eyes agreements since late last year. Unsurprisingly, the agencies queried haven't responded.

The agencies named as defendants (the NSA, ODNI [Office of the Director of National Intelligence], State Dept., and NARA [National Archives and Records Administration]) have all had at least 100 days to respond to PI's requests. None of them have responded positively. The NSA said all records were exempt from disclosure. The ODNI and NARA haven't responded at all, other than to note the request has been received. The State Department offered to "administratively close" PI's request if it didn't respond to the agency's letter within 20 days -- despite the State Department having done nothing to advance the request during the previous 180 days.

As the lawsuit points out, the documents PI is seeking are definitely of interest to the public. The last agreement anyone has seen in full predates the internet itself, where most Five Eyes surveillance now takes place.

Many individuals today live major portions of their lives online. They use the internet to communicate with others, impart ideas, conduct research, explore their sexuality, seek medical advice and treatment, correspond with lawyers, and express their political and personal views. They also increasingly use the internet to conduct many ordinary activities, such as keeping records, arranging travel, and carrying out financial transactions. Today, much of this activity is conducted on mobile digital devices such as cellular phones, which “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 134 S. Ct. 2473, 2489 (2014).

The internet has also enabled the creation of greater quantities of personal data about communications, known as “metadata.” Metadata is information about a communication, which may include the sender and recipient, the date and location from where it was sent, and the type of device used to send it. Metadata can reveal web browsing activities, which might reveal medical conditions, religious viewpoints, or political affiliations. It can also reveal items purchased, news sites visited, forums joined, books read, movies watched and games played.

Communications – emails, instant messages, calls, social media posts, web searches, requests to visit a website – that utilize the internet can take any viable route to their destination; distance is not a determinative factor. They have the potential to travel around the world before reaching their destination, even if the information is being sent between two people (or a person and an entity) within a single country, or even a single city. The dispersion of communications across the internet vastly increases the opportunities for communications and data to be intercepted by foreign governments, who may then share them with other governments.

Knowing who's allowed to do what with this firehose of information is something people would like to know. Unfortunately, a vast network of surveillance programs have been enacted with little oversight, utilizing secret directives and classified interpretations of existing laws.

The ODNI may be engaged in more proactive transparency than it ever has in its history, but it still usually takes a lawsuit to force documents out of its hands. It's the ODNI that ultimately decides whether NSA-related documents get published, so targeting both with FOIA requests is a good way to increase your chances of disclosure. But those chances are still almost nonexistent, thanks to national security-related FOIA exemptions. And, if nothing else, the NARA should have some Five Eyes agreement back issues laying around, but once again, filing a FOIA lawsuit is only one of several steps in a long, arduous, and often frustrating process.

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