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> This is because we already know that the NSA get GCHQ to do little favours for them to get around domestic spying laws. It's just as illegal under U.S. law t
by mpyne 13y ago
> This is because we already know that the NSA get GCHQ to do little favours for them to get around domestic spying laws.
It's just as illegal under U.S. law to have GCHQ do it for you as for NSA to do it directly.
This is a well-discussed loophole already and the courts have already made clear it's illegal.
E.g. you have a Fourth Amendment right to avoid having your postal mail (or any other papers or effects) searched unreasonably. You do not have a Fourth Amendment right to avoid having your UPS parcel searched by UPS.
Does this mean that the government can simply tell UPS to open your UPS parcel to evade the Fourth Amendment? It's not UPS's personal property so they have no Fourth Amendment protection to the parcel. And you have no Fourth Amendment protection from UPS.
But as it turns out once UPS acts under the direction and control of the government, they also have to comply with the strictures on the government. So they cannot legally be made to violate the Fourth Amendment on behalf of the government.
The big catch is that a third party may voluntarily divulge information (e.g. if they rip open your parcel by accident while throwing it out the truck on Christmas Eve and a bomb spills out, they can tell the government). But they can't do so on request of the government.
And so it is for GCHQ and NSA. GCHQ could conceivably tip off the NSA if they happen to get evidence of a US person plotting a terrorist act (much like the USA might tip off Germany to a German national, if it were discovered). But the NSA can't ask GCHQ to deliver information on a US person. At least, not legally, but if you're assuming the NSA will just break the law anyways you're already screwed.
- betterunix 13y agoThe "big catch" is what makes all that cooperation possible. GHCQ just happens to be spying on Americans and then giving the information to the NSA; the NSA returns the favor with a wink and a nod. Sure, nobody ever demanded that the other side do this, but both sides know that if they continue to give each other these "presents" then they can continue to exploit the loophole.
- mpyne 13y ago> GHCQ just happens to be spying on Americans and then giving the information to the NSA; the NSA returns the favor with a wink and a nod. There are about 300 million Americans. How does GCHQ know which ones to spill the beans on? It can't simply be all the information as NSA would then still need to choose which ones to look at, which would require a separate warrant to "look", even under their surreal logic. It can't be a specific person directed by NSA, as that makes GCHQ an agent of the U.S. government.
- FBT 13y ago"Wink, wink, nudge nudge; I'm not telling you you to spy on this list of people, but it sure would be convenient..."
- mpyne 13y agoI'm not arguing it's hard to get around in practice, but it is illegal. As with every other time we mention NSA, if you're going to assume they will break the law as a matter of course then you must leave the Internet immediately or face spying. :P On the other hand if you want to posit that being easy to break the law is reason enough to burn all the transatlantic fiber so that GCHQ can't cooperate with NSA then simply say so, it's at least theoretically a defensible starting point for a debate.
- lstamour 13y agoIf the five eyes already have information sharing agreements, doesn't it mean that based on a tip from an NSA agent, a GCHQ agent (or Canadian, Australian, NZ...) could investigate, and then the contents of that investigation could be seen by the NSA under the sharing agreement? And it's okay because it's not your data they're looking at, but the report on the data? Probably wrong here, but it sounds just weasel-wordy enough to pass muster.
- mpyne 13y agoI would imagine that, at best, a "report" (originated from abroad, mind) would still get you at best something similar to parallel construction: Nothing really useful other than a specific tip to start a real investigation on a specific person, which would require a warrant you can't yet get from FISC due to lack of admissible evidence of probable cause. Either way it's a very dangerous legal ground to walk on. Whatever else we can say for NSA, they've been listening to their lawyers this time.