The US and UK authorities are holding secret negotiations that would allow British domestic spies to tap into servers in the Land of the FreeTM when investigating Her Majesty’s citizens.
A draft proposal, seen by the Washington Post, would allow MI5 to get access to data stored on overseas computers run by American firms, and conduct live wiretaps if necessary. It’s a reciprocal deal, so US agents would also get access to British servers.
Currently, MI5 agents – who primarily tackle bad guys on Blighty’s soil – can apply for access to data from US companies under a mutual legal assistance treaty, but it’s a lengthy process that can take months. Under the proposed deal, US companies would be compelled to hand over the data on request.
“This has been an issue with the UK and other countries for a number of years,” said one senior US administration official.
“More and more, UK nationals — including criminals in their country — are using providers like Google, Facebook, Hotmail. The more they are having challenges getting access to the data, the more our US providers are facing a conflict of laws.”
The plan may run into legal obstacles however, due to UK law. Wiretap orders don’t require a judicial review in the UK – instead they can be issued by the British Home Secretary (the elected official who oversees the police) at her whim.
“What it means is they’re going to allow a country that doesn’t require independent judicial authorization before getting a wiretap to continue that practice, which seems to be a pretty fundamental constitutional protection in the United States,” said Eric King, visiting lecturer in surveillance law at Queen Mary University of London. “That’s being traded away.”
Curiously, that doesn’t seem to bother the US government. The UK “already [has] strong substantive and procedural protections for privacy,” an administration official said.
“They may not be word-for-word exactly what ours are, but they are equivalent in the sense of being robust protections. We are not weighing into legal process standards in the UK, no more than we would want the UK to weigh in on what our orders look like.”
Plenty of people don’t agree, not least the NSA whistleblower Edward Snowden. “Last time they did this, we assembled the Minutemen,” he commented on Twitter.
US Congress might not agree either, particularly as the White House seems keen to strike a deal with the Brits. Any agreement would require changes to the Wiretap Act and the Stored Communications Act, and the Republican-controlled Congress might decide that that dog just won’t hunt. ®
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