U.S. mulled secretly spying on Canadians

Canada’s consent not needed, leaked NSA document says

The U.S. National Security Agency considered spying on Canadians without the knowledge or consent of its intelligence partners in this country, according to a top-secret draft NSA directive.

The 2005 memo, leaked to the Guardian newspaper by former NSA contractor Edward Snowden, details how the NSA considered “unilaterally” targeting the citizens and communication systems of Canada, Australia and New Zealand. The countries are part of the “Five Eyes” intelligence-gathering pact that also includes the U.S. and United Kingdom. The directive refers to partner nations as “second-party” countries.

“Under certain circumstances, it may be advisable and allowable to target second party persons and second party communications systems unilaterally when it is in the best interests of the U.S. and necessary for U.S. national security,” says the directive, classified as “NF” for No Foreign and is titled Collection, Processing and Dissemination of Allied Communications.

“Such targeting must be performed exclusively within the direction, procedures and decision processes outlined in this directive.”

The document states the proposed U.S. spying on its Five-Eyes partners can take place even when the partner government has explicitly denied the U.S. permission to do so, says the Guardian. “The memo makes clear that partner countries must not be informed about this surveillance, or even the procedure itself.”

In a later part of the draft cleared for release to the Five-Eyes countries, the document suggests there may be circumstances in which Canada, Australia and New Zealand should co-operate to allow the U.S. to target their citizens.

The public release of the directive is part of a series of calculated leaks over the past year in which Snowden has exposed a vast campaign by the NSA, assisted by Five-Eyes partners, to snoop on U.S. and global electronic communications in the name of counterterrorism.

“The slow release of secret documents by Snowden (via journalist Glenn) Greenwald is having a cumulative effect which may reach a tipping point,” says Tom Quiggin, an Ottawa security and intelligence expert.

“The NSA runs the risk of losing the confidence of its allies and forcing allied agencies into distancing themselves from the NSA and the U.S. government.”

Meanwhile, U. S. Internet and telecommunications companies such as Cisco are now reporting slipping international sales directly attributable to the drip-drip-drip of Snowden’s unauthorized disclosures.

Microsoft moved this week to assure international customers by pledging to fight in court any attempt by U.S. intelligence agencies to seize its foreign customers’ data under American surveillance laws, one of a series of steps aimed at reassuring nervous users abroad.

Microsoft general counsel Brad Smith told Reuters the company will dramatically increase the amount of encryption it uses for internal traffic, following similar moves by Google and Yahoo after reports the NSA had illicitly tapped into their facilities overseas.

The Five-Eyes coalition was formed under the 1946 UKUSA Agreement, which was believed to limit the ability of the partner countries to spy on each other. Ottawa’s Communications Security Establishment Canada, the country’s premier intelligence agency, maintains a close partnership with the NSA.

The original 1946 UKUSA agreement between the U.S. and Britain was previously designed only for “foreign intelligence” operations. The draft directive appears to indicate that the agreement has changed, according to the Guardian.

“(The 1946 UKUSA) agreement has evolved to include a common understanding that both governments will not target each other’s citizens/ persons” says the directive. “However, when it is in the best interest of each nation, each reserved the right to conduct unilateral Comint (communications intelligence) action against each other’s citizens/persons.”

In a later part of the draft cleared for release to the Five-Eyes countries, the document suggests there may be circumstances in which Canada, Australia and New Zealand should co-operate to allow the U.S. to target their citizens.

International law does not provide much guidance on transnational peacetime spying, says Craig Forcese, a leading expert on national security law at the University of Ottawa.

“International law rules pertaining to spying are best described as a checkerboard of principles,” he wrote in a recent blog posting. “The clearest principle is a simple expression of sovereignty preoccupations: don’t spy on the territory of another state, in violation of its laws.

“Beyond that, there is no simple rule governing the international legality of spying. This may not be a happy situation, but it is fair to say that this is the world that states have quite clearly set out to create. After all, all states spy at one time or another.”

In the long run, the real damage may be to U.S. society, concludes Quiggin.

“Ironically, it was similar spying and information collection activities of the British Crown that lit the fires of revolution in America in the 1760s. Using a new law called the ‘ Writs of Assistance,’ the King’s men were able to search the homes, papers and belongings of anyone without warning and seize all information and goods,” in pursuit of smuggled contraband.