The 1946 agreement that lets the NSA read your email
Britain’s spies receive £100m for sharing information with America’s NSA. We look at how a cold war agreement plus the advent of the web has accelerated the possibilities for spying.
The internet is new, but sharing data is not.
The Guardian’s revelation that the NSA paid GCHQ £100m for spying information in the last three years has thrown new focus on how the spy agencies collaborate. A lot of it is not new: it is still governed by an agreement signed in 1946.
‘Boundless’ remit
But how it can be interpreted is new, and that is thanks to technical change – the invention of the internet. And that makes the cold war agreement that puts almost no limits on the exchange of information, a whole lot more powerful, a privacy campaigner said earlier.
“The remit is almost boundless,” said Gus Hosein, executive director of Privacy International, speaking of the UK USA Agreement 1946, that still forms the basis for intelligence sharing between the US, UK and also Canada, Australia and New Zealand.
“It allows these intelligence services to essentially act as one.”
How most email could count as foreign communications
Only foreign communications are covered by the agreement, but thanks to new ways of communicating on the internet – huge swathes of general communication can now be easily classed as foreign.
“If I were emailing another person in the UK, or Skyping them, all my communications would be going outside the UK, into servers in America or elsewhere,” explained Mr Hosein.
“And so the question is whether that would allow GCHQ to monitor that communication even though we’re both in the UK.”
The barrier for what type of information can be shared is set low by the agreement: covering “communications of a foreign country which may contain information of military, political or economic value.” A broad definition left to the judgement of any given spy service.
The agreement leaves flexibility for the spy services to share the content of the communication and not simply the information around it. The agreement says that “communication documents” can be shared, that could be interpreted to mean content, says Mr Hosein.
‘Huge hole’
A 2000 piece of legislation aimed at limiting and installing checks and balances on the investigatory powers of secret services – the Regulation of Investigatory Powers Act (Ripa) – has a “huge hole” in it, says Mr Hosein.
“It is not a very powerful piece of legislation. There are big holes within Ripa and one of the biggest says that secretary of state can sign what is called a national security certificate that exempts the law from applying to a whole class of communications. The foreign secretary can sign an agreement every few months that says that all communications coming into or going out of Britain are fair game. That allows GCHQ to do mass collection of anything that goes in or comes out under Ripa.”
A spokesperson for GCHQ said he could not comment on whether the term “communications documents” was interpreted to mean the contents of email or not. And, citing Baroness Warsi’s response to a question in parliament, said he could not comment on whether an email sent between two people in Britain but routed to a server outside Britain counted as a foreign communication.
