In 1946, an alliance was formed between five anglophone countries and their security agencies: the US (NSA), the UK (GCHQ), Australia (ASD), Canada (CSEC) and New Zealand (GCSB) comprising of a series of bilateral agreements on surveillance and intelligence-sharing. Though these arrangements are commonly referred to as the United Kingdom-United States Communication Intelligence Act (UKUSA) agreement, the documents underpinning the Five Eyes alliance are numerous, intricate, and secret.
Pursuant to these arrangements, each of the Five Eyes states conducts interception, collection, acquisition, analysis and decryption activities, sharing all intelligence information obtained with the others by default.
Information on the Five Eyes alliance has emerged piecemeal since its birth. We now know that Five Eyes have integrated programmes, integrated staff, integrated bases, and integrated analysis.
Intelligence-sharing agreements have now expanded beyond the Five Eyes to include other states:
9 Eyes: the Five Eyes, with the addition of Denmark, France, the Netherlands and Norway;
14 Eyes: the 9 Eyes, with the addition of Germany, Belgium, Italy, Spain and Sweden;
41 Eyes: all of the above, with the addition of the allied coalition in Afghanistan;
Tier B countries with which the Five Eyes have “focused cooperation” on computer network exploitation, including Austria, Belgium, Czech Republic, Denmark, Germany, Greece, Hungry, Iceland, Italy, Japan, Luxembourg, Netherland, Norway, Poland, Portugal, South Korea, Spain, Sweden, Switzerland and Turkey;
What is the problem
The Five Eyes intelligence-sharing arrangements are shrouded in secrecy, allowing for arbitrary or unlawful intrusions on the right to privacy which circumvent domestic legal restrictions on state surveillance. There is no domestic legislation governing intelligence-sharing, meaning that many of these arrangements lack legal basis and therefore democratic legitimacy. The “third party rule”, often included in intelligence-sharing agreements, forbids the disclosure of inter-agency information to third parties, ousting the possibility of oversight.
Some of the bilateral agreements falling under the UKUSA umbrella reveal the outsourcing of surveillance activities to corporations without limiting their access to classified information, contributing to the privatisation of espionage. This raises questions about the delegation of governmental functions to private actors that remain unanswered.
What is the solution
The public should have clarity as to the circumstances in which Five Eyes intelligence agencies will exchange information and the procedure governing such exchange, including limiting the sharing of intelligence to what is necessary and proportionate.
Governments must extend domestic and international constraints applicable to state surveillance to international intelligence-sharing agreements to prevent the emergence of parallel surveillance frameworks with double-standards.
In order to avoid the mishandling of intelligence information, due diligence obligations must be imposed on states obtaining, accessing, using, analysis retaining and sharing intelligence information. In particular, states must be required to analyse the accuracy or verifiability of the information received prior to acting upon it, and ensure the agencies with whom the information is shared do not have a negative human rights record,
Oversight mechanisms must be implemented to review, monitor and express recommendations on all aspects of intelligence-sharing agreements, ensuring that States comply with due diligence obligations.
What PI is doing
PI continues to work on revealing and analysing the intelligence-sharing, surveillance and legal implications of the arrangements forming the Five Eyes alliance:
By analysing emerging documents, revealing the role played by Five Eyes in the covert exploitation of devices and the extent to which Five Eyes operations are consolidated and integrated across state parties.
By advocating for the introduction of limits and privacy safeguards to Five Eyes intelligence-sharing arrangements, notably writing to national intelligence oversight bodies in over 40 countries outlining the human rights challenges posed by intelligence-sharing
By using legal action to compel the US National Security Agency and other US-based intelligence agencies to share records related to the Five Eyes alliance under the Freedom of Information Act. .