telephone records because it helps in cases where there is no threat to the
United States.”160
Conclusion
3.53.
The PCLOB’s conclusion that s215 had minimal value in protecting the USA from
terrorism echoed comments made by the President’s Review Board on
Intelligence and Communications Technologies, was not doubted by the NAS
Report (p. 57) and is of course not questioned by me.
3.54.
But that conclusion cannot simply be read over to the bulk acquisition power in
the Bill, because of the significant and material differences between the two
powers. In particular:
(a) The nature of the communications subject to the two powers, the types of
provider from whom it is collected and the categories of records collected
cannot be assumed to be the same (3.51(a)(b)(c) above).
(b) The purposes for which the UK data may be used are considerably broader
than those available to the NSA, and the frequency of use is on a completely
different scale (3.51(d) above and 6.9-6.11 below).
(c) The 25 case studies in Annex 9, on which we have commented at 6.12-6.36
below, together with the internal documents summarised at 6.39-6.43 below,
demonstrate the utility of bulk acquisition power, particularly in relation to the
domestic terrorist threat (including live attack plans), but also in relation to
travel to Syria, counter-proliferation and counter-espionage.
Section 702 surveillance programme
3.55.
The PCLOB came to a much more positive conclusion about the utility of FISA
s702, a power under which the US Government with the compelled assistance of
CSPs “collects the contents of electronic communications, including telephone
calls and emails, where the target is reasonably believed to be a non-US person
located outside the United States”.161
160
161
s215 report, pp. 11-12. Similar conclusions were expressed by the President’s Review Group
on Intelligence and Communications Technologies in its “NSA Report: liberty and security in a
changing world”, December 2013, chapter 3 p.57: “[T]he information contributed to terrorist
investigations by the use of section 215 telephony meta-data was not essential to preventing
attacks and could readily have been obtained in a timely manner using conventional section
215 orders”.
PCLOB, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign
Intelligence Surveillance Act, July 2014, p.1. In contrast to its predecessor the s702 report
received a critical reaction from privacy advocates: “NSA reformers dismayed after privacy
board vindicates surveillance dragnet”, The Guardian, 2 July 2014.
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