(c) The broadly-phrased Executive Order 12333, currently under review by the
PCLOB, implicitly authorises an extremely wide range of techniques for use
outside the USA, whereby data may be acquired in bulk as a basis for
subsequent selection.
(d) As a US interlocutor pointed out to me, there are also “bulk” elements (as in
the UK) to many other powers: for example anti-money laundering
programmes which require banks to report all transactions above a certain
level, and requirements on airlines to furnish passenger name records, most
of which do not relate to current targets, to the US Government.
(6) National Academy of Sciences Report
3.66.
In 2014, the White House issued Presidential Policy Directive 28 [PPD-28],
which requested the Director of National Intelligence to assess the feasibility of
alternatives to bulk collection for the US intelligence community.166
3.67.
The resultant NAS Report, published in 2015, was the culmination of a study
conducted by a security-cleared committee whose nine members (supported by
three consultants and four staff) included:
“individuals with expertise in national security law; counterterrorist operations;
privacy and civil liberties as they relate to electronic communications; data
mining; large-scale systems development; software development; Intelligence
Community needs as they relate to research and development; and
networking and social media”.167
3.68.
The study focused on the bulk collection by the US Government (as opposed to
CSPs) of both content and communications data, with particular emphasis on the
latter. It extended to the bulk collection of metadata for domestic telephone calls
under FISA s215, which had previously been the subject of the PCLOB report
referred to above, but also to “a broader set of activities, including the collection
of metadata and contents of foreign telephone calls, emails, and other
communications”.
3.69.
The NAS Report had no doubt that bulk collection was useful:
“A key value of bulk collection is its record of past SIGINT that may be
relevant to subsequent investigations. If past events become interesting in
the present because of new circumstances – such as the identification of a
new target, indications that a nonnuclear nation is now pursuing the
development of nuclear weapons, discovery that an individual is a terrorist, or
emergence of new intelligence-gathering priorities, historical events and the
166
167
The White House, PPD-28 “Signals Intelligence Activities”, January 2014, section 5(d).
NAS Report, Preface p vii.
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