MFIA Clinic Files Lawsuit in Five Eyes Alliance Case

Yale Law School’s Media Freedom & Information Access Clinic and Privacy International filed a lawsuit on July 5, 2017 against the National Security Agency (NSA), the Office of the Director of National Intelligence (ODNI), the Department of State, and the National Archives and Records Administration seeking access to the text of a 1946 intelligence-sharing agreement under the Freedom of Information Act.

The United States, United Kingdom, Australia, Canada, and New Zealand, informally known as the “Five Eyes alliance,” are parties to the agreement. The most recent version of the agreement available to the public dates from 1955 and was declassified by the NSA in 2010. The agreement provides that all Five Eyes countries shall exchange by default all signals intelligence they gather, as well as methods and techniques related to signals intelligence operations.

In an effort to learn more about the intelligence-sharing arrangement, in December 2016, Privacy International filed FOIA requests with the NSA, ODNI, and Department of State seeking access to more recent versions of the Five Eyes agreement, as well as to records such as agency rules, policies, and legal interpretations relating to the agreement itself. In March 2017, Privacy International filed another request with the National Archives and Records Administration as well. None of the agencies have provided a single record in response to the request, according to the clinic.

“The records sought are critical to understanding whether the safeguards in place to protect individuals from surveillance comply with the First and Fourth Amendments,” said Hannah Bloch-Wehba, Clinical Lecturer in Law and Stanton First Amendment Fellow at the MFIA Clinic. “Without knowing the procedures and rules that govern intelligence sharing among the Five Eyes, it is impossible for the public to know if this secretive surveillance abides by constitutional restrictions.”

“For years, Privacy International has fought to shed light on the closely integrated relationship between the intelligence agencies of the Five Eyes alliance,” added Scarlet Kim ’11, legal officer at Privacy International. “Yet key documents, including the current agreement, remain secret, despite being critical to proper scrutiny of U.S. surveillance activities. The public has a right to know what rules govern the exchange of information – which may include purely domestic communications and data – through this private pact.”

The filing, which MFIA students Catherine Martinez ’19 and Andy Udelsman ’17 worked on, is part of MFIA’s broader national security and surveillance project. Under this initiative, the clinic represents clients asserting constitutional and statutory rights to information critical to oversight of the nation’s security policies.

“Disclosure of the laws, rules, and regulations that constrain government surveillance is fundamental to basic democratic oversight,” said Bloch-Wehba. “The government’s failure to make available even the most basic information about the rules currently in place corrodes public confidence in the rule of law and undermines our democracy.”

The Media Freedom and Information Access Clinic (MFIA) is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation and developing policy initiatives.