1.
The nature and scale of the US bulk surveillance programmes
63.
As noted in the Government’s Observations, the NSA’s authority to
conduct surveillance of foreign communications stems from two sources:
Executive Order 12333 and the Foreign Intelligence Surveillance Act
(“FISA”) (Observations §1.6(1)).
a.
Executive Order 12333
64.
Executive Order 12333 sets out the framework for US foreign intelligence
activities and permits the agencies to “collect, retain or disseminate” a
broad range of information, including “[i]nformation constituting foreign
intelligence”, which is defined as “information relating to the capabilities,
intentions and activities of foreign powers, organizations or persons”.30
Importantly,
Executive
Order
12333
permits
bulk
surveillance.
Presidential Policy Directive 28 (“PPD-28”), which governs US signals
intelligence activities and was issued by President Barack Obama on 17
January 2014, makes this clear by stating that the US “must…collect
signals intelligence in bulk in certain circumstances in order to
identify…threats”.31 Moreover, PPD-28 notably outlines limitations on the
use – rather than the initial interception – of signals intelligence collected
in bulk.
65.
The Applicants presented evidence to the IPT, gathered from public
reporting of leaked NSA and GCHQ documents, detailing a number of US
programmes appearing to fall under the Executive Order 12333 regime
and which provide examples of bulk surveillance. These programmes
include: 32
Executive Order 12333, §§2.3, 3.4(d). Reply Annex No. 1.
Presidential Policy Directive 28, §2. Reply Annex No. 13.
32 King Witness Statement, paras 106-113, 134-141. At the time of the proceedings before the
IPT, the Applicants understood these programmes as falling under PRISM and/or Upstream,
which are operated pursuant to FISA section 702. This lack of clarity was a result of the fact that
information as to the scope and nature of these programmes was and continues to be limited
30
31
30