US surveillance reports raise UK questions

London, United Kingdom – Revelations that the United States is involved in a massive Internet surveillance programme, and of Britain’s alleged involvement in the operation, has reignited the debate about intelligence gathering and privacy.

In recent days US President Barack Obama and UK Foreign Secretary William Hague have been forced to explain what is known about PRISM – a National Security Agency (NSA) programme that mines data including emails, instant messaging and photos from the some of the world’s biggest Internet companies such as Google, Microsoft and Facebook.

It is alleged, too, that the UK’s eavesdropping centre, GCHQ, used the US’s massive digital snooping operation to get private data on its own citizens.

In confirmation that the surveillance programme has expanded considerably under the current administration, Obama admitted last week that the US does collect the phone records of American citizens and spy on millions of Internet users – revelations first reported by the UK’s the Guardian newspaper and The Washington Post last week.

“It’s bleeding obvious this stuff has been going on for decades. It circumvents domestic security and surveillance laws.” –  Annie Machon,  former MI5 officer

Despite this, former spies and legal experts say there are many unanswered questions about the scandal, such as the regulatory framework in which intelligence agencies operate and how information is shared between authorities. 

One expert said communications interception by agencies and cross-border sharing of data is nothing new, and it is done to “circumvent” domestic laws.

“It’s bleeding obvious this stuff has been going on for decades,” said former MI5 officer Annie Machon, who famously accused the British intelligence services of corruption and incompetence in her book: Spies, Lies and Whistleblowers: MI5, MI6 and the Shayler Affair.

She added: “It circumvents domestic security and surveillance laws. In the UK, if GCHQ wanted to intercept a UK citizen’s telephone number they need to get a warrant from the Foreign Secretary. However, if the NSA in America wants to intercept something abroad such as a UK citizen in the UK, they can do it perfectly legally without a warrant and share it with GCHQ and vice versa.”

Loopholes?

It is hard to say whether the UK got around its own laws and exploited a loophole to spy on UK citizens because that would depend whether it asked the US for information or was offered it, said Matthew Ryder, a London-based barrister who specializes in surveillance and national security.

“Of course, if the UK cynically asked others to do to its surveillance work for them, specifically to avoid UK law, this may well be unlawful,” Ryder said.

But, he continued: “If the UK alerts the US authorities about UK citizens who may be of interest ‘to the US’, the US authorities may then collect data about those UK citizens for ‘their own’ purposes.

“Any information the US authorities then obtain about those UK citizens may be freely and informally shared with the UK authorities at a later date.”

Any exploitation of a loophole such as this is wrong, said Machon, a classics graduate from Cambridge University in the UK who spent three years on the run after quitting MI5 more than 15 years ago.

“It’s unacceptable – it’s bending the spirit of law,” she said.

Photos of NSA contractor Edward Snowden and President Barack Obama on the front of newspaper pages [Reuters]

In a statement earlier in the week, Hague would not be drawn in on whether the UK has access to PRISM, insisting the UK complies with the law in how it gathers intelligence.   

Indeed, as Ryder points out, Hague’s insistence that the UK has obeyed the law could be irrelevant since there is an absence of regulation surrounding international data sharing.

“US laws require the US government to obtain a warrant before collecting personal data about a schoolteacher in Arkansas,” said Ryder. “But the same is not true of foreigners: an office worker in Cardiff has no greater protection from the US government monitoring her data than an arms trader in Kandahar,” he said.

This throws up more unanswered questions, observers say. What regulation is there to oversee the US when it decides to spy on a foreign citizen, or on a resident whose information is held on US Internet servers? And what limits are there on the UK accepting and using intelligence once it is in the possession of US authorities?

‘Massive implications’

Machon said she believes the data-mining furore could spark a diplomatic row if the US has been obtaining personal information of other European citizens without those countries’ consent. She added more governments could have known about the US and UK’s covert surveillance operation.

“This has massive implications across Europe,” she said.

However, the spying scandal should come as no surprise, former CIA analyst Ray McGovern told Al Jazeera.

An ex-NSA director blew the whistle last year on the controversial snooping activities of his former employer, saying US telecoms company AT&T had been supplying billing data to intelligence services.

William Binney, who resigned from the agency in 2001 over its domestic surveillance programme, said in April last year the NSA had been collecting personal data of US citizens since the September 11 terrorist attacks.

“After 9/11, all the wraps came off for NSA, and they decided to – between the White House and NSA and CIA … to eliminate the protections on US citizens and collect on domestically,” he told Democracy Now in 2012.

“Disingenuous is one word that comes to mind, but that is a very mild word for the deceit and the duplicity that is going on.“ – Ray McGovern, former CIA analyst

“They started collecting … from the one commercial company that I know of that participated, probably, on the average, about 320 million records of communication of a US citizen to a US citizen inside this country,” Binney said at the time.

NSA’s Internet spying operation was a “gross violation of rights”, McGovern said.

He said the passing of a law in 2008 by Congress that expanded the spying reach of the US government and handed immunity to telecoms firms that collaborated with the NSA was a key plank of legislation that enabled American intelligence services to broaden its surveillance operation.

“Disingenuous is one word that comes to mind, but that is a very mild word for the deceit and the duplicity that is going on,” McGovern added.