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The U.S. Intelligence Community Can Share Your Personal Information With Other Governments, and We’re Demanding Answers

Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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June 13, 2017

While the ACLU’s focus on foreign intelligence surveillance typically centers on the U.S. government’s National Security Agency, intelligence collection actually operates on a global scale. Our government is just one branch of an international network of intelligence services that coordinate their efforts with virtually no transparency or accountability.

That’s why the ACLU has joined with seven of our partners in the International Network of Civil Liberties Organizations (INCLO) to file freedom of information requests seeking government records concerning how intelligence sharing between countries actually works. Along with a request we filed today under the Freedom of Information Act, our seven partners filed similar requests in their own countries, in Argentina, Canada, the United Kingdom, Hungary, Ireland, Russia, and South Africa.

Fight for surveillance reform

Our concerns with these arrangements are not academic. American intelligence agencies reportedly played a role in surveilling Nelson Mandela and the African National Congress in the 1960s. More recently, in exchange for providing the CIA with information about Libyans suspected of ties to international terrorism, the United States allowed Libya to interrogate prisoners at Guantánamo Bay. And American intelligence agencies reportedly work closely with their Ethiopian counterparts on counterterrorism in the Horn of Africa, despite the Ethiopian government’s documented abuses against political opponents, the press, and detainees.

Since the Snowden revelations, we’ve learned a lot about the NSA’s expansive surveillance tools — like Upstream surveillance, which we’re challenging as unconstitutional in Wikimedia v. NSA, and MYSTIC, under which the NSA can record, store, and revisit every phone call in a given foreign country. But far less is known about the extent to which the government shares information collected through that surveillance with other countries.

We do know that the government shares data it collects with other countries, through partnerships like its “Five Eyes” arrangement with the United Kingdom, Australia, Canada, and New Zealand, and through unilateral agreements with countries like Germany, Israel, and Saudi Arabia. (Some of these agreements may have been jeopardized in recent months, after President Trump shared with Russian officials evidence of Israeli intelligence gathering in Syria, and British officials were upset by U.S. leaks concerning the U.K.’s investigation of the Manchester bombing.)

But what do these agreements say? How do they work in practice? And what safeguards are present to ensure that the United States does not sidestep domestic legal constraints by laundering surveillance through other countries — for example, by asking a foreign government to conduct surveillance that the U.S. government could not do itself? Or that it does not — advertently or otherwise — contribute to the use of American intelligence to facilitate human rights violations or other abuses?

We need to scrutinize these practices, especially as we approach what is sure to be a contentious debate surrounding the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act later this year. We know that the products of the government’s surveillance under Section 702 have been shared with foreign governments — for example, when the NSA reportedly intercepted the communications of people associated with a Fijian pro-democracy campaign and then shared the messages with the agency’s New Zealand counterpart.

Moreover, the rules approved by the Foreign Intelligence Surveillance Court governing how Section 702–collected data may be used by the NSA explicitlystate that “[i]nformation acquired pursuant to section 702 of the Act may be disseminated to a foreign government,” with weak protections for individuals’ privacy, including that of Americans. (The rules governing how the FBI may share Section 702–collected data are, perhaps unsurprisingly, entirely redacted from the FISC-approved guidelines.)

Coordinated surveillance by some of the most powerful countries in the world demands, in turn, that civil society coordinate its response. We’ve joined with our INCLO partners in this effort because we know that in today’s interconnected world, an email we send to a friend abroad could end up not just in our own government’s hands, but the hands of foreign governments as well. The same goes for our friend.

We’re hoping that this joint project helps shed some light on these practices, both at home and around the world.