Privacy International v. National Security Agency, Office of the Director of National intelligence, Department of State, and National Archives and Records Administration (Five Eyes FOIA)

Five eyes

United States District Court for the District of Columbia

On 5 July 2017, Privacy International filed a Freedom of Information Act (“FOIA”) lawsuit seeking to compel the disclosure of records relating to a surveillance agreement governing the exchange of signals intelligence between the governments of the U.S., U.K., Canada, Australia and New Zealand (“Five Eyes alliance”). Privacy International is represented by the Media Freedom Information Access Clinic at Yale Law School.

The origins of the Five Eyes alliance stretch back to World War II, but the relationships between the five countries are formalized in the United Kingdom-United States Communications Intelligence Agreement (“UKUSA Agreement”), first signed in 1946. Pursuant to the UKUSA Agreement, the Five Eyes countries agree to exchange by default all signals intelligence they gather, as well as the methods and techniques related to signals intelligence operations.

1955 version of the Agreement is the most recent version to have been made public. Communications methods have changed dramatically since 1955, vastly increasing the opportunities for governments to acquire, store and/or analyse communications and data and to share that information with other governments. The nature of signals intelligence has also changed dramatically since 1955. As modern communications have evolved, intelligence agencies have developed more advanced ways to access, acquire, store, analyse and disseminate information.

Privacy International has sought for years to obtain information about the UKUSA Agreement and the rules governing the Five Eyes alliance via freedom of information requests and other methods. In the U.S., Privacy International has made FOIA requests to the National Security Agency (“NSA”), the Office of the Director of National Intelligence (“ODNI”), the State Department (“State), and the National Archives and Records Administration (“NARA”).

Privacy International’s requests seek the current text of the UKUSA Agreement and the rules and regulations governing the exchange of signals intelligence pursuant to the Agreement. Privacy International seeks these records so as to determine whether the Five Eyes intelligence sharing activities appropriately accommodate the constitutional rights of American citizens and residents as well as the human rights of non-American citizens and residents.