President Obama on Tuesday affirmatively stated that the United States does not have any “no spy” agreements with other countries.  Many journalists, scholars, and foreign officials have been laboring under the impression that the United States does have at least some of these agreements.  What’s the source of the disconnect?

Readers will recall that discussions of “no spy” agreements came to the fore in September 2013, after allegations emerged that the NSA had been monitoring German Chancellor Merkel’s private cell phone.  The irritated Germans publicly demanded a “no spy” agreement with the United States.  Various news articles discussed a possible precedent for such an arrangement: the “Five Eyes” agreement among the United States, Canada, Australia, New Zealand, and the UK.  Both the press and at least one Five Eyes member’s executive branch interpreted that agreement as precluding any of the five states from spying on the other.  For example, in a paper submitted by the Canadian executive branch to a Member of Parliament, Canada stated, “Five Eyes allies, in their own national interests as sovereign states, can lawfully collect intelligence in accordance with their own domestic laws while respecting the long-standing convention not to target the communications of one another.”

Ashley S. Deeks, No "No Spy" Agreements?, Lawfare (February 13, 2014).