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.
National Journal
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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