GCHQ’s Alleged Interception of Communications under PRISM

This statement was obtained from the Intelligence and Security Committee of Parliament web site, July 17, 2013.

INTELLIGENCE AND SECURITY COMMITTEE OF PARLIAMENT  Chairman: The Rt. Hon. Sir Malcolm Rifkind, MP   Statement on GCHQ’s Alleged Interception of Communications under the US PRISM Programme  Introduction  1. Over the last month, details of highly classified intelligence-gathering programmes run by the US signals intelligence agency – the National Security Agency (NSA) – have been leaked in both the US and the UK. Stories in the media have focussed on the collection of communications data and of communications content by the NSA. These have included the collection of bulk ‘meta-data’ from a large communications provider (Verizon), and also access to communications content via a number of large US internet companies (under the PRISM programme).  2. The legal arrangements governing these NSA accesses, and the oversight and scrutiny regimes to which they are subject, are matters for the US Congress and courts. However some of the stories have included allegations about the activities of the UK’s own signals intelligence agency, GCHQ. While some of the stories are not surprising, given GCHQ’s publicly acknowledged remit, there is one very serious allegation amongst them – namely that GCHQ acted illegally by accessing communications content via the PRISM programme. What is the PRISM programme? 3. PRISM is a programme through which the US Government obtains intelligence material (such as communications) from Internet Service Providers (ISPs). The US administration has stated that the programme is regulated under the US Foreign Intelligence Surveillance Act (FISA), and applications for access to material through PRISM have to be approved by the FISA Court, which is comprised of 11 senior judges. Access under PRISM is specific and targeted (not a broad ‘data mining’ capability, as has been alleged). 4. Stories in the media have asserted that GCHQ had access to PRISM and thereby to the content of communications in the UK without proper authorisation. It is argued that, in so doing, GCHQ circumvented UK law. This is a matter of very serious concern: if true, it would constitute a serious violation of the rights of UK citizens. Our investigation 5. The ISC has taken detailed evidence from GCHQ. Our investigation has included scrutiny of GCHQ’s access to the content of communications, the legal framework which governs that access, and the arrangements GCHQ has with its overseas counterparts for sharing such information. We have received substantive reports from GCHQ, including: • a list of counter-terrorist operations for which GCHQ was able to obtain intelligence from the US in any relevant area;  • a list of all the individuals who were subject to monitoring via such arrangements who were either believed to be in the UK or were identified as UK nationals;  • a list of every ‘selector’ (such as an email address) for these individuals on which the intelligence was requested;  • a list of the warrants and internal authorisations that were in place for each of these individual being targeted;  • a number (as selected by us) of the intelligence reports that were produced as a result of this activity; and  • the formal agreements that regulated access to this material.  We discussed the programme with the NSA and our Congressional counterparts during our recent visit to the United States. We have also taken oral evidence from the Director of GCHQ and questioned him in detail.  Next Steps  6. Although we have concluded that GCHQ has not circumvented or attempted to circumvent UK law, it is proper to consider further whether the current statutory framework2 7. In some areas the legislation is expressed in general terms and more detailed policies and procedures have, rightly, been put in place around this work by GCHQ in order to ensure compliance with their statutory obligations under the Human Rights Act 1998. We are therefore examining the complex interaction between the Intelligence Services Act, the Human Rights Act and the Regulation of Investigatory Powers Act, and the policies and procedures that underpin them, further. We note that the Interception of Communications Commissioner is also considering this issue.   1 There are other matters arising from the leaks that we are considering, although we note that none alleges – as the PRISM story did – any illegality on the part of GCHQ.  2 The Intelligence Services Act 1994, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000.

Déjà vu all over again

The Patriot Act was an Act of the U.S. Congress that was signed into law
by President George W. Bush on October 26, 2001

I wrote a letter to the editor 10 years ago (wow, time flies!) upon learning of concerns expressed by the American Library Association over the threat of the FBI and other government agents obtaining access to the library records of its patrons without their knowledge. The issue didn't receive the attention it deserved then, but now that anyone who emails, tweets, 'chats', posts, pins, phones, or farts is having their 'meta data' collected by the NSA, people are starting to perk up.

To the Editor, Tri-City Herald, September 2003

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (First Amendment, U.S. Constitution)

In an unusual preface to a speech to the American Restaurant Association conference Monday, September 15th, 2003, Attorney General John Ashcroft suggested that librarians had been deluded by “baseless hysteria” because of the concern they’ve voiced over Section 215 of the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism“ Act, otherwise known as the “Patriot Act.”

Earlier (September 11, 2003), the Tri-City Herald published an Op Ed piece by James McDevitt, the U.S. attorney for Eastern Washington, in which Mr. McDevitt argues that “Section 215 of the Act has received much misplaced criticism.” He goes on to say, “library records are not the focus of Section 215” and “the word ‘library’ is not found in Section 215.” He repeatedly urges us to look at the facts, and states, “even the media should be mindful of this requirement.” Mr. McDevitt’s claim is that “critics have tried to create a false choice between civil liberties and national security.”

I take issue with Mr. McDevitt on three counts. First, to say that library records are not the focus, or that the word “library” is not found in Section 215 is disingenuous. You won’t find the word “bank,” or “bookstore,” or “college” in Section 215, but they are all, nevertheless, subject to the Act, just as are libraries and a whole host of other institutions. Under Section 215, government agents involved in an authorized investigation may obtain court orders "requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities." Under the Act, a United States Person can be investigated in part on the basis of activities protected under the First Amendment to the U.S. Constitution.

Furthermore, the law states, "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the FBI has sought or obtained tangible things under this section." In other words, those served with an order to produce “tangible things,” for example, a list of the books John Doe checked out of a library, are gagged, and John is kept in the dark about the invasion of his privacy.

Second, critics of the Act are quite knowledgeable of the facts concerning the Patriot Act. One need only type “patriot act” into their Google search engine to find a plethora of learned analyses of the Act and its implications. The American Library Association provides a detailed explanation of their concerns on their web page (http://www.ala.org/). Because of their mission, and because they are cognizant of the facts, libraries are especially concerned about the freedom of their patrons to read books, to view videos, to access internet web pages, or to gain information and insights from any of the many resources they make available to us, and to do this in privacy.

Third, to claim, as Mr. Ashcroft did recently, that librarians are hysterical about the Act doesn’t just demonstrate a lack of diplomacy, it demonstrates a troubling willingness to pass over history. This same lack of historical perspective colors Mr. McDivett’s argument that critics have tried to create a false choice between civil liberties and national security.

Some 50 years ago Senator Joseph McCarthy made a mockery of civil liberties. In addition to the many excesses for which [I hope] he is well known, 30,000 books in the Overseas Library Program were identified by what his researchers labeled as "communists, pro-communists, former communists and anti anti-communists." After the publication of this list, these books were removed from library shelves.

In the 1960s, the FBI instituted the “Library Awareness Program” to recruit librarians to report on the research behavior of “suspicious people” -- at that time patrons from Soviet Block countries. This program was carried on in secret for over twenty years before a New York Times article exposed it 16 years ago last Thursday (New York Times, Sept 18, 1987).

Just over 25 years ago, the Select Committee to Study Governmental Operations with Respect to Intelligence Activities concluded in its final report (April 1976): “Domestic intelligence activity has threatened and undermined the Constitutional rights of Americans to free speech, association and privacy. It has done so primarily because the Constitutional system for checking abuse of power has not been applied.”

The Committee’s report points out something that every American should be very aware of, “A tension between order and liberty is inevitable in any society.”

There will always be choices to make between ensuring our security and protecting our rights. Anyone that has endured the long lines, luggage searches, and body scans at our nation’s airports certainly has come to appreciate this. The trick is to find the right balance between preservation of our civil liberties and protection of our national security. This is never an easy task. It is made more difficult today when we feel viscerally the menace from those who would do us harm. Thus it is all the more important that we remain vigilant; that we be willing to pay that price for the liberty we cherish.

I support our nation’s fight against terrorism both philosophically and in deed. I respect and admire the efforts of our military, our law enforcement community, and our intelligence community in carrying on this fight – it will be a long, hard fight. I also respect the right of every citizen of this great nation to question the laws and actions of its government and to retain a healthy skepticism when told that freedoms must be sacrificed on the altar of national security.