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The Five Eyes is a close-knit group. The levelof cooperation under the UKUSA agreement isso complete that “the national product is oftenindistinguishable.” 3 This has resulted in formerintelligence officials explaining that the close-knitcooperation that exists under the UKUSA agreementmeans “that SIGINT customers in both capitalsseldom know which country generated either theaccess or the product itself.” 4 In addition to fluidlysharing collected SIGINT, it is understood that manyintelligence facilities run by the respective Five Eyescountries are jointly operated, even jointly staffed,by members of the intelligence agencies of FiveEyes countries. Each facility collects SIGINT, whichcan then be shared with the other Five Eyes states.Code-named programmes that have been revealedto the public over the last decade go someway to illustrating how the Five Eyes alliance collaborateson specific programmes of activity andhow information is shared. One important exampleis the TEMPORA programme, revealed by Snowden.By placing taps at key undersea fibre-optic cablelanding stations, the programme is able to intercepta significant portion of the communications that traversethe UK. The Guardian has reported that 300analysts from GCHQ and 250 from the NSA weredirectly assigned to examine material collected. 5TEMPORA stores content for three days and metadatafor 30 days.Once content and data are collected, they canbe filtered. The precise nature of GCHQ’s filtersremains secret. Filters could be applied based ontype of traffic (e.g. Skype, Facebook, email), origin/destination of traffic, or to conduct basic keywordsearches, among many other purposes. Reportedly,approximately 40,000 search terms have been chosenand applied by GCHQ, and another 31,000 by theNSA to information collected via TEMPORA. GCHQhave had staff examining collected material sincethe project’s inception in 2008, with NSA analystsbrought to trial runs of the technology in summer2011. Full access was provided to NSA by autumn2011. An additional 850,000 NSA employees andUS private contractors with top-secret clearance3 Aldrich, R. (2004). Transatlantic intelligence and securitycooperation. International Affairs, 80(4), 731-753. www2.warwick.ac.uk/fac/soc/pais/people/aldrich/publications/inta80_4_08_aldrich.pdf4 Lander, S. (2007). International intelligence cooperation: An insideperspective. Cambridge Review of International Affairs, 17(3), p.487.5 The Guardian quotes an internal GCHQ report that claims“GCHQ and NSA avoid processing the same data twice andproactively seek to converge technical solutions and processingarchitectures.” It was additionally reported that the NSA providedGCHQ with the technology necessary to sift through the materialcollected.reportedly also have access to GCHQ databases.GCHQ received £100 million (USD 160 million) in secretNSA funding over the last three years to assistin the running of this project. 6A core programme that provides filtering capabilityis known as XKEYSCORE. It has beendescribed by internal NSA presentations as an“analytic framework” which enables a single searchto query a “3-day rolling buffer” of “all unfiltereddata” stored at 150 global sites on 700 databaseservers. 7 The NSA XKEYSCORE system has sites thatappear in Five Eyes countries. 8 The system indexesemail addresses, file names, IP addresses and portnumbers, cookies, webmail and chat usernamesand buddylists, phone numbers, and metadata fromweb browsing sessions including searches queried,among many other types of data that flow throughtheir collection points.While UKUSA is often reported as having createda “no spy pact” between Five Eyes states,there is little in the original declassified documentsfrom the 1940s and 1950s to support such a notion.Crucially, first and foremost, no clause exists thatattempts in any form to create such an obligation.As best as can be ascertained, it seems there is noprohibition on intelligence gathering by Five Eyesstates with respect to the citizens or residents ofother Five Eyes states. There is instead, it seems,a general understanding that citizens will not bedirectly targeted, and where communications areincidentally intercepted, there will be an effort tominimise the use and analysis thereof by the interceptingstate. Outside the Five Eyes, everyone elseis fair game, even if they have a separate intelligence-sharingagreement with one or several FiveEyes members. 9The rights implicationsThe world has changed dramatically since the1940s; then, private documents were stored in filingcabinets under lock and key, and months could passwithout one having the need or luxury of making aninternational phone call. Now, private documentsare stored in unknown data centres around the6 MacAskill, E. (2013, November 2). Portrait of the NSA: no detailtoo small in quest for total surveillance. The Guardian. www.theguardian.com/world/2013/nov/02/nsa-portrait-totalsurveillance7 The Guardian (2013, July 31). XKeyscore presentation from 2008.www.theguardian.com/world/interactive/2013/jul/31/nsaxkeyscore-program-full-presentation8 Ibid., p. 5.9 Poitras, L. et al. (2013, July 1). How the NSA targets Germanand Europe. Spiegel Online. www.spiegel.de/international/world/secret-documents-nsa-targeted-germany-and-eubuildings-a-908609.htmlworld, international communications are conducteddaily, and our lives are lived – ideas exchanged, financialtransactions conducted, intimate momentsshared – online.With the advent of the internet and new digitalforms of communication, now most digital communicationstake the fastest and cheapest routeto their destination, rather than the most direct.This infrastructure means that the sender has noability to choose, nor immediate knowledge of, theroute that their communication will take. This shiftin communications infrastructure means that communicationstravel through many more countries,are stored in a variety of countries (particularlythrough the growing popularity of cloud computing)and are thus vulnerable to interception by multipleintelligence agencies. From their bases within theterritory of each country, each Five Eyes intelligenceagency collects and analyses communications thattraverse their territory and beyond.An analysis of the legal provisions in each of theFive Eyes countries reveals that they fall far shortof describing the fluid and integrated intelligencesharingactivities that take place under the ambit ofthe Five Eyes arrangement with sufficient clarity anddetail to ensure that individuals can foresee theirapplication. 10 None of the domestic legal regimesset out the circumstances in which intelligenceauthorities can obtain, store and transfer nationals’or residents’ private communication and otherinformation that are intercepted by another FiveEyes agency, nor the circumstances in which any ofthe Five Eyes states can request the interception ofcommunications by another party to the alliance.The same applies to obtaining private informationsuch as emails, web histories, etc., held by internetand other telecommunication companies. Carefullyconstructed legal frameworks provide differinglevels of protections for internal versus externalcommunications, or those relating to nationals versusnon-nationals.The Five Eyes agencies are seeking not only todefeat the spirit and purpose of international humanrights instruments, they are in direct violation oftheir obligations under such instruments. The rightto privacy is an internationally recognised right. 11The way the global communications infrastructureis built requires that the right to privacy of commu-10 Privacy International. (2013). Eyes Wide Open. https://www.privacyinternational.org/reports/eyes-wide-open11 Article 17 (1) of the International Covenant on Civil and PoliticalRights provides: “No one shall be subjected to arbitraryor unlawful interference with his privacy, family, home orcorrespondence, nor to unlawful attacks on his honour andreputation.”nications be exercised globally, as communicationscan be monitored in a place far from the locationof the individual to whom they belong. When anindividual sends a letter, email or text message, ormakes a phone call, that communication leaves theirphysical proximity, and travels to its destination.In the course of its transmission the communicationmay pass through multiple other states and,therefore, multiple jurisdictions. The right to privacyof the communication remains intact, subjectonly to the permissible limitations set out underhuman rights law. Accordingly, whenever Five Eyescountries interfere with the communication of anindividual, thus infringing upon their privacy, theyinvoke jurisdiction over that individual, and have tocomply with human rights obligations accordingly.The practice of mass surveillance detailed in theSnowden documents is contrary to internationallaw. The Special Rapporteur on the promotion andprotection of the right to freedom of expressionand opinion, for example, has described the invasivenessof mass interception of fibre-optic cables:“By placing taps on the fibre optic cables, throughwhich the majority of digital communication informationflows, and applying word, voice and speechrecognition, States can achieve almost completecontrol of tele- and online communications.” 12The Special Rapporteur reasons that “[m]assinterception technology eradicates any considerationsof proportionality, enabling indiscriminatesurveillance. It enables the State to copy and monitorevery single act of communication in a particularcountry or area, without gaining authorization foreach individual case of interception.” 13Taking actionThe intelligence agencies of the Five Eyes countriesconduct some of the most important, complexand far-reaching activities of any state agency, andthey do so behind the justification of a thicket ofconvoluted and obfuscated legal and regulatoryframeworks. The laws and agreements that make upthe Five Eyes arrangement and apply it to domesticcontexts lack any semblance of the clarity or accessibilitynecessary to ensure that the individualswhose rights and interests are affected by them areable to understand their application. Their actionshave been justified in secret, on the basis of secretinterpretations of international law and classified12 Report of the Special Rapporteur on the promotion and protectionof the right to freedom of expression and opinion, Frank La Rue, 17April 2013, A/HRC/23/40, para. 38. www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.40_EN.pdf13 Ibid., para. 62.52 / Global Information Society Watch Thematic reports / 53