The number of signals intelligence reports based on s702 was said to have
“increased exponentially” since 2008.
3.62.
The fact that strong selectors are already known when data is accessed under
s702 raises the question of why a targeted warrant would not be an acceptable
alternative. The PCLOB’s answer was that the less rigorous procedures
necessary for the use of s702 permitted “greater flexibility and a dramatic
increase in the number of people who can realistically be targeted”.165 See
further 5.22 below.
PCLOB - conclusion
3.63.
The conclusions of the PCLOB in its s215 report have been heavily relied upon
for the proposition that bulk powers such as those under review are useless or of
limited utility.
3.64.
But on close analysis, the reality turns out to be different:
(a) The bulk acquisition power in the Bill is different in its nature from the s215
power: there is no reason to assume that its utility is similarly limited (and
there is much evidence that it is not: chapter 6 below).
(b) The bulk interception power in the Bill, as described at 2.19(a) above, is very
similar to the s702 power which the PCLOB found to have a high and
increasing value in fighting terrorism.
3.65.
More broadly, it is not wholly accurate to suggest – as some have done – that
the US has turned away from bulk, in the broader sense of that word (1.5 above)
or even in the narrower sense (1.7 above). The USA Freedom Act did mark the
end of a capability to acquire metadata in bulk – a capability found by two review
bodies to have been of very limited utility. However:
(a) The s215 replacement capability, which the FBI anticipated would be at least
as useful as the power it replaced (3.49 above), permits the targeted
querying of communications retained by service providers. The large
amounts of data from which the targeted selection is made continue to
include a significant portion that is not associated with current intelligence
targets.
(b) The s702 arrangements continue to permit the targeted selection and
retention by the NSA of wanted communications from bulk internet traffic, in
very much the same way as the strong selector process described at 2.19(a)
above.
165
PCLOB s702 report, p.106.
64