Similarities with UK bulk powers
3.56.
There are marked similarities between the s702 programme and bulk
interception as practised in the UK, particularly via the “strong selector process”
summarised at 2.19(a) above:162
(a) Both are foreign-focused capabilities, based on the interception of a cable
and the collection of “wanted” communications by the application of strong
selectors.
(b) The application of those selectors from a very early stage gives both the
flavour of targeted capabilities, though as explained at 2.19(a) above, the
holding of communications in bulk for a short period means that a bulk
warrant will be required under the Bill.163
(c) Both offer the advantages of operational scale and flexibility to service the
range of foreign intelligence missions.
(d) Even the authorisation regimes are similar, with external authorisation of the
intelligence purposes for which the data can be accessed and used and the
procedures for targeting and handling of information, but with decisions
relating to individual selectors being delegated to GCHQ / NSA.164
Utility of the s702 programme
3.57.
162
163
164
The PCLOB devoted seven pages of its report to the value of the s702
programme. Its analysis was limited to “the counterterrorism value” of the
programme, though it noted that “the programme serves a broader range of
foreign intelligence purposes”.
As there noted, the ISC preferred to think of this process as targeted rather than bulk collection:
the PCLOB, similarly, characterised s702 as “acquiring the communications of specifically
targeted foreign persons who are located outside the United States”: p.9. It would appear
nonetheless from p.56 of the PCLOB s702 report that the scale of data generated by s702 is
sufficient to allow for “at times complex queries across large datasets” – a capability that is
reminiscent of the “complex query process” described at 2.19(b) above.
The PCLOB described s702 as authorising the targeting of persons (pp.20-21).
PCLOB s702 report, p.106: “Targeting decisions are made by NSA analysts and reviewed only
within the executive branch.” There are of course differences in the applicable safeguards: for
example, s702 selectors may not be applied to US citizens (whereas UK citizenship is a
relevant consideration neither under RIPA nor under the Bill); on the other hand, UK warrants
last six months rather than a year; and the UK has much shorter retention periods for data
collected under bulk warrants than the five years referred to at p. 60 of the PCLOB s702 report.
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