Wednesday, November 20, 2013

Honour among data thieves, UKUSA version

We are regularly assured that the members of the UKUSA, or Five Eyes, community may spy on virtually the whole world, but they do not spy on each other. (The issue recently came up for Canada when media outlets speculated on whether Stephen Harper might be a target for NSA spying.)

There does seem to be some truth to the assertion that some sort of agreement exists among the UKUSA countries not to target one another.

But the spy world is not a realm where honesty is valued above all other attributes, and the "agreement" that reportedly exists between the UKUSA parties, like the Pirate's Code, seems to be "more what you'd call 'guidelines' than actual rules".

Today the Guardian published an excerpt of what the actual rules, as they pertain to the NSA, may be (James Ball "US and UK struck secret deal to allow NSA to 'unmask' Britons' personal data," Guardian, 20 November 2013):

The document confirms that the non-targeting agreement exists, but it also makes it clear that the agreement is really just a "common understanding" that has evolved among the UKUSA partners, with each side reserving the right, "when it is in the best interest of each nation", "to conduct unilateral COMINT action against each other's citizens/persons."

The NSA document goes on to state that "under certain circumstances, it may be advisable and allowable to target Second Party persons and second party communications systems unilaterally when it is in the best interests of the U.S. and necessary for U.S. national security." (Note that the term "Second Party" in this context refers not just to the United Kingdom, but also to the other members of the UKUSA community, i.e., Australia, New Zealand, and Canada.)

There is no reason to believe that such unilateral targeting is taking place on an en masse basis. Indeed, it seems clear that in most cases monitoring of Second Party citizens takes place with the knowledge and co-operation of the country whose citizens are being monitored, and it appears that in many cases the data in question will actually be provided by the Second Party country. (The Guardian article provides some very interesting details of how such arrangements currently work with respect to NSA monitoring of U.K. citizens.)

As another excerpt from the NSA document shows, only when the Second Party declines to collaborate, or when sharing the target would be "contrary to U.S. interests" (for example, if NSA wished to target Canadian government officials), would NSA consider proceeding on a unilateral basis.

According to the Guardian, the document cited in the article was a draft directive written in 2005. We don't know what the final wording of the directive actually was.

But don't be fooled by attempts that may be made to dismiss the text as a draft document that was never approved.

If the UKUSA non-targeting agreement really were ironclad, a proposal to change that policy would appear in a Top Secret, very, very tightly compartmentalized document presented to the NSA Director, with supporting arguments and extended discussion of the advantages and risks, not in a few paragraphs classified at the Secret NOFORN level. This may be a draft document, but it is not a proposal for a fundamental change in targeting policy.

Update 21 November 2013:

New York Times coverage: James Glanz, "United States Can Spy on Britons Despite Pact, N.S.A. Memo Says," New York Times, 20 November 2013

Update 22 November 2013:

CTV on the case: "U.S. can spy on Brits, so are they spying on Canadians?" CTV News, 21 November 2013

Update 5 December 2013:

The Ottawa Citizen notices the issue: Ian Macleod, "NSA considered spying on Canadians without this country’s consent: Report," Ottawa Citizen, 5 December 2013.

Update 2 May 2014:

U.S. National Security Advisor Susan Rice asserts, according to the New York Times, that "the United States [does] not have no-spy agreements with any of its close allies, even with the other members of the so-called Five Eyes — the United States, Britain, Canada, Australia and New Zealand" (David Sanger, "U.S. and Germany Fail to Reach a Deal on Spying," New York Times, 1 May 2014).


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