October 4, 2013 | By Cindy Cohn

EFF Gives Expert Testimony on NSA Spying in Challenge to British Surveillance Program

Three major British privacy organizations on Thursday launched an important legal challenge to the United Kingdom’s participation in the massive global surveillance scandal. To support the case as an expert witness, I submitted a 32-page statement laying out much that is publicly known about the National Security Agency’s PRISM and UPSTREAM programs, and explained how US law offers no protections for non-US persons against spying by the agency.

Big Brother Watch, Open Rights Group and English PEN, together with German internet activist Constanze Kurz, all filed papers with the European Court of Human Rights alleging that GCHQ—the UK’s version of the NSA—is invading the privacy of millions of European citizens. Specifically, the organizations point to violations of Article 8 of the European Convention on Human Rights, which guarantees an individual’s right to a private life, including private correspondence.

The British and US governments both need to be held accountable for the practices of the NSA and GCHQ, and this case is a vital step in that work and a complement to our cases in the US.

The application—what we would call a “complaint” in the US judicial system—attacks two aspects of the UK’s participation in the mass spying program.  First, it challenges the legality of the use of data from the NSA’s PRISM and UPSTREAM programs by the British intelligence services. Second, it challenges TEMPORA, the UK’s own program of accessing transatlantic fiber optic cables under rolling, six-month general warrants.

My declaration focuses on the two NSA programs. Originally revealed by The Guardian based on a presentation obtained by intelligence contractor Edward Snowden, and later confirmed by the US government, PRISM is an internal government system to access metadata and internet content from the world’s largest service providers (e.g. Microsoft, Google and Facebook). UPSTREAM, is an NSA program established to copy all traffic passing through fiber optic cables of US communications service providers (e.g. AT&T, Verizon).  The existence of the UPSTREAM program was exposed by AT&T whistleblower Mark Klein in 2006 and is the focus of EFF’s pending Jewel v. NSA lawsuit.

In Jewel, as well as our new case First Unitarian Church of Los Angeles v. NSA, EFF represents US persons and the legal arguments center on the violations of statutory and constitutional rights of Americans (although some of the associations in First Unitarian have non-US persons as members). As I explain in the declaration, the US laws that the government claims as justification for the mass spying are all focused on the treatment of US persons and their communications records that are collected and analyzed along with foreign communications. 

In other words: As EFF and our Canadian friends at CIPPIC have outlined in our Spies Without Borders series, US law currently allows the NSA to conduct mass collection and spying on hundreds of millions of non-US persons around the world. It's unacceptable that international standards of human rights are not applied to communications surveillance as they should be, especially given the global reach of such violations.

The pervasiveness of US surveillance on people who are not “US persons” makes standing up for these rights more important than ever. EFF is delighted to assist our colleagues and our European members in this fight. You can follow the progress of the case and take action to support it at the Privacy Not PRISM website.


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