As the UK government passes increasingly far-reaching surveillance laws that bind companies to capture, store and share data on their customers' activities, US tech giants like Facebook and Google are caught in a dilemma: much of what the UK government demands of them, the US government prohibits.
A leaked draft of an agreement between the UK and the US would allow British spy agencies to require the US companies to turn over their records — the private data of Britons, Americans and citizens and residents of other nations.
Unnamed Obama administration officials predict the agreement will become law, because the rules governing UK spy agencies include "robust protections" for privacy. However, the UK Parliament's own select committee on Science and Technology has concluded that the spy laws are so badly and broadly drafted that no one can figure out what they mean.
The UK system allows government ministers to secretly issue surveillance orders without judicial review — orders that come with gag clauses prohibiting anyone from discussing them. This falls short of the minimal protections afforded under the US's kangaroo court surveillance rules.
It looks like this has the backing of the big tech companies, who just want legal clarity on what they must do to avoid legal trouble.
Senior administration officials say that they have concluded that British rules for data requests have "robust protections" for privacy and that they will not seek to amend them. But British and U.S. privacy advocates argue that civil liberties safeguards in Britain are inadequate.
The negotiating text was silent on the legal standard the British government must meet to obtain a wiretap order or a search warrant for stored data. Its system does not require a judge to approve search and wiretap warrants for surveillance based on probable cause, as is done in the United States. Instead, the home secretary, who oversees police and internal affairs, approves the warrant if that cabinet member finds that it is "necessary" for national security or to prevent serious crime and that it is "proportionate" to the intrusion.
If U.S. officials or Congress do not seek changes in the British standards, "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, a privacy advocate and visiting lecturer in surveillance law at Queen Mary University of London. "That's being traded away."
The British want to come to America — with wiretap orders and search warrants
[Ellen Nakashima and Andrea Peterson/Washington Post]