detailed rules for the use and retention of these records. Call detail records
typically include much of the information that appears on a customer’s
telephone bill: the date and time of a call, its duration, and the participating
telephone numbers. ... The records collected by the NSA under this program
do not, however, include the content of any telephone conversation. After
collecting these telephone records, the NSA stores them in a centralized
database.”
3.48.
Following the PCLOB report, the s215 programme was allowed to lapse but was
replaced by a new programme under the USA Freedom Act. The bulk collection
of telephone metadata by the NSA has therefore ceased. But under the new
programme, “telephone metadata” collected by service providers is still made
accessible to the NSA. The bulk collection of such data thus continues on the
basis of the broad definition of bulk (1.5-1.6 above), though not on the narrow
definition favoured in the USA and in the Bill (1.7-1.8 above): see further 3.65
below.
3.49.
It should also be noted that Jim Comey, Director of the FBI, was quoted in late
2015 as saying that the replacement programme in the USA Freedom Act
“should work as well or better than what we used to have”.150
Comparison with UK bulk powers
3.50.
On the basis of the summary description quoted above, the s215 programme
has obvious similarities with the bulk acquisition power described at 2.29-2.45
above. In particular:
(a) Each programme allows for the storage of telephone communications data
(or metadata, in the US terminology) in a single database.
(b) The “call detail records” described by the PCLOB fall within the definition of
the “traffic data” to which all current s94 directions for bulk communications
data apply.
3.51.
My potential to comment further is limited by the degree of public disclosure in
relation to these programmes that has been deemed possible, both in the US
and in the UK. But it would be wrong to assume that the two programmes are
identical, or even close equivalents. In particular:
(a) Nature of communications: The s215 power is limited to the collection of
“telephone records” relating to “calls”. The UK bulk acquisition power relates
to “communications data”, a category which is capable of including data
150
https://morningconsult.com/2015/12/09/comey-effectiveness-of-usa-freedom-act-not-yet-clear/.
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