Memo on International Electronic Surveillance Concerns
TO: Interested Persons
FROM: American Civil Liberties Union, Center for Democracy and Technology, Eagle Forum, Electronic Frontier Foundation, Electronic Privacy Information Center, Free Congress Foundation
RE: International Electronic Surveillance
DATE: June 7, 1999
The organizations listed above join to encourage the Judiciary and Government Reform Committees to undertake an investigation, including public hearings, on the threat to the privacy and civil liberties of Americans posed by the involvement of the US government in international electronic surveillance activities. We also urge the House and Senate to ensure that the conference committee on the Intelligence Authorization Act (H.R. 1555) retains the amendment requiring a report on the legal standards for international electronic surveillance of Americans.
It has been known for a long time that the US government engages in extensive electronic surveillance activities overseas through the National Security Agency and other components of the intelligence community. Some of these activities are unilateral, some are undertaken in cooperation with various allies. Probably the most important cooperative arrangement arises from the UKUSA agreement, under which the intelligence agencies of the US, UK, Canada, New Zealand and Australia have long intercepted communications and shared the results in an intelligence gathering effort of huge proportions.
Recently, official disclosures in Europe and Australia have described aspects of this UKUSA system, focusing in particular on the automated system for processing intercepted material, referred to as ECHELON. According to reports prepared by the Scientific and Technological Option Assessment unit of the European Parliament, the ECHELON system uses monitoring stations around the globe to capture satellite, microwave, cellular and fiber-optic traffic, including communications to and from North America.
Regardless of what the international surveillance systems are called, they merit examination in terms of their effect on the communications privacy of US citizens. The last time any broad examination was given to these issues was during the late 1970s, when Congressional inquiry culminated in the adoption of the Foreign Intelligence Surveillance Act of 1978 (FISA).
Revolutionary changes in communications technology since 1978 prompt our call for a fresh Congressional look at the implications of US surveillance of international communications on the rights of Americans. The volume of sensitive corporate and personal information being transmitted electronically has multiplied exponentially. International communications are now common. Most businesses, even small businesses, recognize that they must compete globally. The Internet has emerged as the first truly global communications medium. Indeed, because of the nature of satellite communications and the Internet, messages sent from one point in the US to another destination in the US may cross US borders and even pass through Europe or other countries.
At the same time that the dividing line between domestic and international communications has blurred, so has the dividing line between law enforcement and foreign intelligence. Intelligence agencies are drawn increasingly into activities in support of law enforcement objectives. Yet FISA does not apply at all to the interception activities of the US government abroad, even when they involve the interception of the communications of US citizens, nor does FISA limit the surveillance activities of US allies, even though the US government often receives the product of such surveillance.
We see two fundamental questions that merit Congressional inquiry:
(1) Are the rules governing US government surveillance overseas adequate to protect the rights of US citizens?
The first step in answering this question is to determine what rules govern surveillance of Americans. Under what criteria does the US government target for interception the communications of American citizens abroad, including communications intercepted abroad where one terminus of the communication is in the US? And, since undoubtedly many communications of Americans are intercepted abroad where no American was intentionally targeted, what are the rules governing dissemination of information regarding Americans collected abroad that is relevant to a law enforcement or national security interest of the US? Rules governing US surveillance abroad were embodied in Executive Branch directives or memos developed in the 1970s. Have they changed since then, and, if so, how? (It would be startling if they hadn't changed, given the changes in law enforcement, intelligence priorities and communications technology that have occurred since the late 70s.)
Getting answers to this first question was significantly advanced on May 13 when the full House adopted the Barr amendment to the Intelligence Authorization Act requiring components of the intelligence community to report to the Congress on the legal standards for interception activities abroad that affect the rights of US citizens. We urge the House and Senate to support this provision and to work with Mr. Goss and Mr. Barr to ensure that this provision survives through conference and that the resulting report's unclassified version and the legal interpretations released to the public are as comprehensive as possible.
Once the intelligence community report is submitted, we urge the Committees to hold public hearings to consider whether the guidelines and standards spelled out in the report are sufficient for the digital age.
(2) Are the rules governing the receipt from foreign governments of information they intercept concerning the communications of Americans adequate to protect the rights of US citizens?
The US government conducts monitoring operations on the soil of allied nations and shares with those governments information acquired about the activities of their nationals and others of interest to them. Are there similar sharing arrangements for information other countries collect in the United States, in Canada, or elsewhere involving the communications of US citizens? Under what criteria does the US government request allies to target for interception the communications of American citizens abroad, including communications intercepted abroad where one terminus of the communication is in the US?
We are not asking for any inquiry that would challenge the role of the intelligence agencies abroad collecting intelligence on terrorists or foreign threats, so we do not believe that this is an inquiry solely for the Intelligence Committees. Our concerns focus on the legal standards concerning: (i) the targeting of US citizens for electronic surveillance abroad by any component of the US government; (ii) the dissemination and use of information about the intercepted communications of Americans, whether such information was collected intentionally or inadvertently; (iii) the receipt from foreign governments of information about the intercepted communications of Americans, again whether such information was collected intentionally or inadvertently; and (iv) the interception of communications transmitted from one point in the US and bound for another point in the US, but accessible overseas as they are routed through the Internet or transmitted by means of satellite. We believe that a public inquiry into these legal and policy questions can be conducted without jeopardizing sensitive information about specific targets or techniques.
We are available to meet with Members and staff about this and other privacy issues. We look forward to working with individual Members, the chairs of the relevant Committees, and the leadership in addressing these issues, which are of growing concern to the American public.