Sept. 13, 2017
This week, New America’s Open Technology Institute (OTI) joined Privacy International, the Electronic Frontier Foundation (EFF), the Center for Democracy & Technology (CDT), and the Electronic Information Privacy Center (EPIC) to send a coalition letter and a Privacy International issue brief to Congress and the Privacy and Civil Liberties Oversight Board, raising concerns about the lack of transparency around international intelligence sharing agreements and to request that more information about these agreements be disclosed. This is part of a series of letters being sent to the oversight bodies of over 40 countries by Privacy International and national civil society organizations in each country.
Intelligence sharing agreements concerning foreign intelligence, counterterrorism or other national security issues, are generally formed between the intelligence agencies of two or more countries such as the Five Eyes (U.S., Canada, U.K., Australia, and New Zealand). They establish rules governing issues such as how they will share intelligence and resources, cooperate on operations, and collaborate on training and capacity building. Currently, these agreements are shrouded in secrecy, which threatens the ability for effective oversight of when and how data may be shared—oversight that, as the letter points out “is among the fundamental guarantees against a government’s unlawful interference with the right to privacy.”
These intelligence sharing agreements may be informal and extra-legal, which may permit them to avoid the requirements of international law. Indeed, they often explicitly state that they are “not to be construed as legally binding under international law.” As such, these agreements do not get checked for constitutional violations or for whether they meet the standard set forth in international law for surveillance to be necessary and proportionate.
This lack of transparency poses serious challenges for oversight and makes it impossible for the public to know whether countries comply with domestic and international laws when sharing intelligence information. Additionally, without transparency, we cannot ensure that the U.S. government only shares information with countries that have strong records of respecting human rights. It is also important that the United States only share information with countries that have an established legal framework that ensures surveillance is targeted—and is approved and overseen—by independent bodies.
To gain a better understanding of the state of oversight of these agreements, the letter inquired whether the oversight bodies are independent, and how much access they have to information about intelligence sharing agreements. The Privacy International brief also makes five recommendations for how countries can improve transparency and oversight around intelligence sharing agreements:
Make intelligence sharing agreements legally binding agreements;
Provide clarity for when and how information can be shared pursuant to these agreements;
Require recipients of information under these information sharing agreement adhere to the international and domestic legal constraints to which the country conducting surveillance is subject;
Require both countries sharing and receiving information under these agreements to perform due diligence in how information is accessed, stored, shared, and received, and to ensure all countries party to these agreements respect human rights, and that data shared under them is correct; and
Empower oversight bodies.
As the amount of surveillance around the world proliferates, the need for transparency and oversight of these agreements has never been greater. Here in the United States, we hope that this letter and Privacy International brief will help to encourage the Congressional Judiciary and Intelligence Committees and the Privacy and Civil Liberties Oversight Board to undertake that work.The letter can be read here and the Privacy International brief can be read here.