During the second world war intelligence officers from Britain and the US would crouch over bulky radio transmitters listening in on crackling enemy exchanges. In the years since then, communications technology has changed drastically – and intelligence gathering is far easier in the digital age.
But despite the changes it is the same agreement that still governs the sharing of signals intelligence between Britain, the US, Australia, New Zealand and Canada – known in shorthand as the "5-Eyes" countries.
The exchange of intelligence was an important part of US-UK efforts during the second world war. This co-operation continued after the war, resulting in the UKUSA agreement of 1946. As a British dominion at the time, Australia was not party to the agreement in its own right, but all British dominions occupied a special status that elevated them above other "third-party" countries.
By 1955 the role of the other 5-Eyes nations was formalised when the agreement was updated: "At this time only Canada, Australia and New Zealand will be regarded as UKUSA-collaborating Commonwealth countries," an annexure in the new agreement reads.
The Defence Signals Branch – now known as the Australian Signals Directorate – was to "collaborate directly", with tasks as determined by the US National Security Agency, and "will exchange raw material, technical material and end product of these tasks".
It is not clear how much the agreement has changed since then, and whether Australia is still being allocated "tasks" in such a way – but the nature of those tasks would be very different.
“In the days when the agreement was put together, your main source of signals was high-frequency radio that could be transmitted for several thousand kilometres around the world, so you had a whole network of stations to monitor HF radio,” says Australian National University professor Des Ball, an Australian intelligence expert. “Many of those stations are still here.”
Throughout the 1960s these radio signals were left behind; in their place came satellite or microwave relay communications, and each of the parties began developing interception methods for these. With each leap in technology came new capabilities.
“As communications moved into much much higher of the frequency spectrum with mobile phones and then cell phones, they moved into facilities that could intercept those much shorter range signals, so there has been an evolution which has matched the change in means of communications,” Ball says.
Intelligence gathering has developed even further with digital communication interceptions, and as leaked NSA documents have shown, Australia has been operating listening posts around the Asia-Pacific region, passing data back to the US.
But high-frequency radio transmissions are vastly different from the internet, in both form and purpose. The executive director of the Cyberspace Law and Policy Centre, David Vaile, says the internet should not be seen as a medium designed for this kind of mass data collection.
"With the vast amount of information that's exposed online there is a greater need for more protection," Vaile says.
The original agreement was created to share information about intelligence gathered on foreign countries, not domestic surveillance. But that purpose and the scope of the intelligence being gathered also appears to have changed.
The 1946 agreement specifically related to "foreign intelligence", which is defined as "all communications of the government or of any military, air, or naval force, faction, party, department, agency, or bureau of a foreign country, or of any person or persons acting or purporting to act therefor, and shall include communications of a foreign country which may contain information of military, political or economic value". It specifically excludes the US, the British Commonwealth and nations, and the British empire from the scope of this sort of information.
But we now know from documents provided by the whistleblower Edward Snowden that the NSA has been able to retain vast amounts of data from Britain and other 5-Eyes nations, allowing information about ordinary citizens to be caught up in the dragnet.
In a draft 2005 directive in the name of the NSA's director of signals intelligence, the agency prepared policies that would enable spying on 5-Eyes partners, even without permission of the other country: “[The March 1946 UKUSA agreement] has evolved to include a common understanding that both governments will not target each other's citizens/persons. However, when it is in the best interest of each nation, each reserved the right to conduct unilateral Comint action against each other's citizens/persons.
"Under certain circumstances, it may be advisable and allowable to target second-party persons and second-party communications unilaterally when it is in the best interests of the US."
This shift in the agreement is what Vaile says is one of the most serious risks, because it helps facilitate spying on the citizens of other parties to the agreement.
"If you actually did want to spy more on the local people then it appears that with co-operation of the other partners this is easier, because they would have the legal right in their own domestic law to treat the citizens of the other countries as foreigners, and that appears to be where the rot has set in."
“There used to be a very clear distinction between intelligence gathering on non-nationals and domestic citizens, but that appears to have changed.”
The limitations placed on the activities of the 5-Eyes countries with respect to the what they can gather on the other partners appear to have changed over time. The question that remains is just how far the partners have gone in conducting surveillance on each other.
