are made to us, after establishing the legal framework which is to apply to
them”.
147
(5) Assessments by the Privacy and Civil Liberties Board (USA)
3.43.
The Privacy and Civil Liberties Board [PCLOB] is an independent bipartisan
agency within the US executive branch, established by the Implementing
Recommendations of the 9/11 Commission Act of 2007 but beginning operations
as an independent agency only in August 2012. Its oversight mandate is limited
to those measures taken by the government to protect the nation from
terrorism.148 The Board comprises four part-time members and a full-time
chairman, all of them distinguished academic and/or practising lawyers who were
appointed by the President and confirmed by the Senate. Both they and their
small staff hold very high levels of security clearance.
3.44.
The PCLOB has produced two reports to date on programmes associated with
bulk collection. Significant parts of those reports consist of statutory and
constitutional analysis, which are US-specific and concern matters which are
outside the remit of this Review. The PCLOB’s analysis of the privacy and civil
liberties implications of the programmes that it reviewed, and its
recommendations regarding safeguards, are also beyond the scope of this
Review.
3.45.
But both reports also expressed firm and reasoned conclusions on the utility of
the programmes that they reviewed. The first of them in particular has been
heavily relied upon by NGOs and others seeking to challenge the utility of bulk
powers in the UK.
3.46.
The two reports, and the extent of their relevance in the UK context, are
summarised below.
Section 215 telephone records programme
3.47.
The PCLOB’s first report was on the telephone records programme conducted
under an order that was issued by the Foreign Intelligence Surveillance Court
[FISC] under s215 of the USA PATRIOT Act and renewed approximately every
90 days.149 In the PCLOB’s summary:
“The FISC order authorizes the NSA to collect nearly all call detail records
generated by certain telephone companies in the United States, and specifies
147
148
149
Human Rights Watch Inc. and others v Secretary of State for the Foreign and Commonwealth
Office, [2016] UKIPTrib15 165-CH, 16 May 2016, para 44.
42 USC §2000ee.
PCLOB, Report on the Telephone Records Program Conducted under Section 215 of the USA
PATRIOT Act and on the Operations of the FISC, January 2014.
57