I n t e r c e p t i o n o f C o m m u n i c a t i o n s - II

INTERCEPTION OF COMMUNICATIONS- II STORM CLOUDS GATHER OVER SPY AGENCY Simon Davies

I Simon Davies discusses the concern that is arising over alleged "secret" US/EU plans for a "seamless" tele- coms surveillance system across national boundaries

Immediately following the Second World War, in 1947, the governments of the United States, the United Kingdom, Canada,Australia and New Zealand signed a National Security pact k n o w n as the "Quadripartite", or "United Kingdom-United States" (UKUSA) agreement. Its intent ion was to seal an Intelligence bond in which a common National Security objective was created.

Under the terms of the agreement, the five nations carved up the earth into five spheres of influence, and each country was assigned particular signals intelligence (SIGINT) targets (Britain, for example, was responsible for intercepting the Chinese, through its Hong Kong listening post, while the US was given other responsibilities to cover from its listening posts in Taiwan,Japan and Korea).

The UKUSA Agreement standardized terminology, code words, intercept handling procedures, arrangements for co- operation, sharing of information, and access to facilities.

One important component of the agreement was the exchange of data and personnel. The link means that opera- tives from, say, the New Zealand signals intelligence agency GCSD or NSA, could work from the Canberra facilities of Australia's Defence Signals Directorate, to intercept local communications, and pass on the contents to the Australian Intelligence agencies, without either nation having to formal- ly approve or disclose the interception.

The strongest alliance within the UKUSA relationship is the one between the US National Security Agency (NSA), and Britain's Government Communications Headquarters (GCHQ).

The most important facility in the alliance is Menwith Hill, in the north of England. With two dozen radomes and a vast computer operations facility, the base has the capacity to eavesdrop on vast chunks of the communicat ions spectrum. With the creation of Intelsat and digital telecommunications, Menwith and other stations developed the capability to eavesdrop on an extensive scale on fax, telex and voice mes- sages. It is widely believed that Menwith Hill has around 40 000 lines connected to it, through which access could be gained to much of European and Soviet communications.

In 1998, members of the European Parliament (EP) were provided with evidence that the NSA, in collusion with the British Government, has created the means to intercept almost every fax, email and te lephone call within the

European Union. The revelation has irritated governments throughout Europe, culminating in a current Italian judicial inquiry into the legality of the NSA's activity, as well as action in the US Congress to clip the NSA's wings.

The NSA has a mandate of eavesdropping on the world's communications networks for the benefit of the United States. In doing so, it has built a vast spying operation that reaches into the telephone systems of nearly every country on earth. Its operations are so secret that this activity, outside the US, occurs without any democratic oversight, and without any legal basis.

The issue has erupted now because of two recent European Parliament studies that confirm the existence in Britain of a network of communicat ions intelligence bases operated by the NSA. The publication last year of the first report, An Appraisal of the Technologies of Political Control, confirmed for the first time that the NSA had established a surveillance capacity over the entire European communica- tions network. It also described a grid of supercomputers, known as ECHELON, capable of scanning vast areas of the communicat ions spectrum to detect keywords.

Sketchy details of the NSA's spying activities in Europe have been common currency for decades, but had never been formally acknowledged. 1 Attempts by British MPs to raise the matter in Parliament have for some years been ignored by successive governments.

Of particular interest to the Parliament was the report 's assertion that the NSA has been engaged in commercial espi- onage activities. According to evidence presented to the Parliament, the NSA has been routinely intercepting sensitive traffic relating to bids, takeovers, mergers, investments and tenders for the economic benefit of the US.

Concerns have subsequently been raised by parliamentari- ans in Germany, Norway, Italy, Denmark, Holland and Sweden. Then, in September 1998, the plenary session of the European Parliament took the unprecedented step of openly debating the activities of the NSA. In a Consensus Resolution of all major parties, the Parliament signalled its concern by calling for more openness and accountability of this once hidden activity.

In 1999, a second EP report, Interception Capabilities 20003 set out the technical specifications of the interception system. The report describes a secret plan by US and EU authorities to create a 'seamless' web of telecommunications

392 Computer Law & Security Report V01.15 no. 6 1999 ISSN 0267 3649/99/$20.00 © 1999 Elsevier Science Ltd. All rights reserved

I n t e r c e p t i o n o f C o m m u n i c a t i o n s - - II

surveillance across all national boundaries. The strategy is advised by national security agencies and by the FBI, which instigated with Brussels a top-secret planning organization called the Internat ional Law Enforcement Tele- communicat ions Seminar (ILETS). In time, two vast systems - - one designed for national securit T and one for law enforce- ment - - will merge, and in the process will compromise national control over surveillance activities.

In Washington, the House Permanent Select Committee on Intelligence has ordered the NSA to hand over documents relating to ECHELON.The NSA has - - for the first time in the Commi t t ee ' s his tory - - refused to do so, claiming attorney/client pr ivi lege?

Representative Bob Barr, worr ied by the potential breach of constitutional privacy rights, has introduced an amend- merit to the fiscal 2000 Intelligence Authorization Act requir- ing the director of Central Intelligence, the director of NSA and the attorney general to submit a report outlining the legal standards being employed within project ECHELON to safe- guard the privacy of American citizens.

The NSA's silence has fueled the present inquiry by the Rome judiciary: The head of the inquiry, Deputy District Attorney Vittorio De Cesare, intends to determine the extent to which the activities of the NSA may breach Italian law.

Italy's privacy watchdog, Stefano Rodota, has also expressed his concern, and recently told local media, "The US government [has] not replied to the requests for clarifications made explicitly by the European Parliament." Rodota has motivated his fellow privacy commissioners throughout Europe to formally investigate the Echelon system.

In Brussels, following the first stage of the controversy, Jacques Santer circulated a memo to all senior Commission staff warning of the threat of interception of Commission communi- cations.The Commission's own internal securit T unit began an informal review of the potential threat of interception.

One Brussels official told the DailyTelegraph"It takes only one country to formally refer the matter to the Commission and this matter will take on a life of its own."

Strictly speaking, the Commission does not have a man- date to regulate or intervene in national security matters. However it does have a responsibility to ensure that security is harmonized throughout the Union, and this is where the formal protests are likely to emerge.

Title V of the Maastricht Treaty specifies "Member States shall inform and consult one another within the Council on any matter of foreign and security policy of general interest ha order

to ensure that their combined influence is exerted as effectively as possible by means of concerted and convergent action."

Whether the commercial espionage activities at Menwith Hill can be defined as "security...of general interest" will depend on a definition yet to emerge from the Commission. For Britain, this definition would be vitally important. If the NSA's activities are deemed to be of a general security nature, then Britain has fallen foul of its obligations under the Treat3,. If the NSA's activities are not deemed to bc security issues, then the special relationship be tween the UK and the US may have to be reviewed. Britain may not be able to offer the NSA the cloak of secrecy it has hitherto enjoyed. Either way, any referal on the matter by one country will put both Britain and the US in a delicate diplomatic position.

The Commission is also concerned that if the NSA issue escalates further, companies may demand protection.Title II, Article 3 (c) of the Treaty requires the creation of"an internal market characterized by the abolition, as be tween Member States of obstacles to the free movement of goods, persons, services and capital."

The existence of a spy base on British soil could poten- tially act as an obstacle to the free movement of capital bv interfering in delicate negotiations and transactions.

However, one loophole in the European treaties could ensure that the arrangement be tween the IIS and the UK may yet survive. In a provision engineered primarily by the UK, any bilateral arrangement be tween an EU and a non-EU coun- try is exempt from intervention by Brussels, or by other mem- ber European States.

The catch-22 is that Brussels cannot even read the"Special Relationship" agreements that form the basis of the NSA's tenure in Britain.The UKUSA agreement which bindsAmerica and Britain to a joint signals intelligence arrangement is unob- tainable. A senior EU security official told the Telegraph "I have never seen such a document, so 1 would not know how to assess the (NSA) situation."

These recent events have left observers contemplating two profound conclusions. First, the NSA and its partner agen- cies can now intercept most communicat ions networks world wide. Second, the distinction be tween traditional police and security agencies has been blurred to an unprece- dented extent. The implications lot privacy protection are protbund.

Simon Davies I)irector, Privacy International, London

FOOTNOTES

1See Nick'3." tlager Secret Power, Craig Potton Publishing, Nelsen, New Zealand, 1998. British researcher Duncan Campbell also pub- lishcd information in the New Statesman as far back as 1988. 2Published by Science and Technology Options Assessment (STOA). Ref: project no. IV/STOA/RSCH/LP/politicon. 1. 3Report to the Director General for Research of the European Parliament (Scientific and Technical Options Assessment pro- gramme office) on the development of surveillance technology and

risk of abuse of economic information. This study considers t h e state of the art in Communications intelligence (Comint) of auto- mated processing for intelligence purposes of intercepted broad- band multi-language leased or common carrier systems, and its applicability to Comint targeting and selection, including speech recognition *Daniel Verton,"Congress, NSA butt heads over ECHELON", Federal

Computer Week, 3 June 1999.

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