British Spies Allowed to Access U.S. Data Without a Warrant

Newly released documents from the British government reveal a lack of judicial oversight for how it sifts through communications data collected by the NSA and other foreign governments.

 Ethernet cables lead to a server at the Rittal stand at the 2013 CeBIT technology trade fair the day before the fair opens to visitors on March 4, 2013 in Hanover, Germany.
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Dustin Volz
Oct. 28, 2014, 4:01 p.m.

Brit­ish au­thor­it­ies are cap­able of tap­ping in­to bulk com­mu­nic­a­tions data col­lec­ted by oth­er coun­tries’ in­tel­li­gence ser­vices—in­clud­ing the Na­tion­al Se­cur­ity Agency—without a war­rant, ac­cord­ing to secret gov­ern­ment doc­u­ments re­leased Tues­day.

The agree­ment between the NSA and Bri­tain’s spy agency, known as Gov­ern­ment Com­mu­nic­a­tions Headquar­ters or GCHQ, po­ten­tially puts the In­ter­net and phone data of Amer­ic­ans in the hands of an­oth­er coun­try without leg­al over­sight when ob­tain­ing a war­rant is “not tech­nic­ally feas­ible.”

The data, once ob­tained, can be kept for up to two years, ac­cord­ing to in­tern­al policies dis­closed by the Brit­ish gov­ern­ment. GCHQ was forced to re­veal that it can re­quest and re­ceive vast quant­it­ies of raw, un­ana­lyzed data col­lec­ted from for­eign gov­ern­ments it part­ners with dur­ing leg­al pro­ceed­ings in a closed court hear­ing in a case brought by vari­ous in­ter­na­tion­al hu­man-rights or­gan­iz­a­tions, in­clud­ing Pri­vacy In­ter­na­tion­al, Liberty U.K., and Am­nesty In­ter­na­tion­al. The suit chal­lenges cer­tain as­pects of GCHQ’s sur­veil­lance prac­tices.

It is well known that the NSA and GCHQ closely share in­tel­li­gence data with one an­oth­er, as part of a long-stand­ing sur­veil­lance part­ner­ship. Some de­tails of the agen­cies’ spy pact were ex­posed by former NSA con­tract­or Ed­ward Snowden last year, in­clud­ing the ex­ist­ence of GCHQ’s Tem­pora pro­gram, which taps in­to fiber-op­tic cables to scoop up on­line and tele­phone traffic across the Web for up to 30 days.

But this is the first time the Brit­ish gov­ern­ment has dis­closed that it does not re­quire a war­rant to ac­cess data col­lec­ted and main­tained by its Amer­ic­an coun­ter­parts. The rev­el­a­tion ap­pears to counter state­ments made by an over­sight com­mit­tee of the Brit­ish Par­lia­ment in Ju­ly of last year that “in each case where GCHQ sought in­form­a­tion from the U.S., a war­rant for in­ter­cep­tion, signed by a min­is­ter, was already in place.”

It is un­clear wheth­er any re­stric­tions on Bri­tain’s ac­cess to NSA sur­veil­lance data is im­posed by the U.S. However, doc­u­ments provided by Snowden to The Guard­i­an last year re­veal that the NSA shares raw in­tel­li­gence data with Is­rael without re­mov­ing in­form­a­tion about U.S. cit­izens.

In a state­ment, the NSA said it works with a num­ber of part­ner coun­tries to fur­ther its “for­eign in­tel­li­gence mis­sion.” But it did not spe­cify wheth­er it was aware of or con­doned Bri­tain’s ap­par­ent war­rant­less ac­cess of its data.

“Whenev­er NSA shares in­tel­li­gence in­form­a­tion, we com­ply with all ap­plic­able rules, in­clud­ing rules de­signed to safe­guard U.S. per­son in­form­a­tion,” the agency said. “NSA does not ask its for­eign part­ners to un­der­take any in­tel­li­gence activ­ity that the U.S. gov­ern­ment would be leg­ally pro­hib­ited from un­der­tak­ing it­self.”

Amer­ic­an pri­vacy ad­voc­ates quickly con­demned any war­rant­less ac­cess of U.S. com­mu­nic­a­tions data by Brit­ish au­thor­it­ies.

“The ‘ar­range­ment’ dis­closed today sug­gests that the two coun­tries are cir­cum­vent­ing even the very weak safe­guards that have been put in place,” Jameel Jaf­fer, deputy leg­al dir­ect­or of the Amer­ic­an Civil Liber­ties Uni­on, said in a state­ment to Na­tion­al Journ­al. “It un­der­scores both the in­ad­equacy of ex­ist­ing over­sight struc­tures and the press­ing need for [sur­veil­lance] re­form.”


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