undertaken within the US.37 Section 702 of FISA permits the US Attorney
General and Director of National Surveillance to authorise surveillance
within the US by targeting non-US persons “reasonably believed to be
located outside” the US.38
71.
The Government describes PRISM and Upstream as “targeted” rather
than “bulk” programmes, and states that they require the NSA to identify
a specific person whose communications or communications data are to be
obtained (Observations, § 1.6(2)). In the Factual Appendix, the Applicants
counter this statement, by detailing why Upstream, in particular, may
fairly be characterised as “bulk”.
2.
The accuracy of the Applicants’ descriptions
Government’s bulk surveillance programmes
of
the
US
72.
The Government does not deny that the NSA conducts bulk surveillance,
as it clearly does through its programmes under Executive Order 12333. It
merely confines its Observations to a discussion of PRISM and Upstream.
Even if the Government were correct that PRISM and Upstream are
targeted, the factual premise that the US only engages in “targeted”
surveillance is false.
3.
The nature and scale of US-UK intelligence sharing
73.
Intelligence sharing between the US and UK must be viewed within the
context of a long-standing arrangement between the intelligence activities
of the two countries, along with Australia, Canada and New Zealand,
Executive Order 12333 technically applies to all foreign intelligence activities, even where they
take place within the US. However, it requires that all activities comply with relevant US
statutes, which would include FISA. Thus, to the extent that FISA regulates surveillance
undertaken within the US, Executive Order 12333 directs that the US Government comply with
that framework. It is also worth noting that FISA does not cover all electronic surveillance that
takes place within the US, only such surveillance falling within a particular statutory definition
(50 U.S.C. § 1801(f)). The Applicants limit their discussion of FISA to PRISM and Upstream,
both of which fall squarely within the FISA framework.
38 Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated
Pursuant to s702 of FISA, p1, available at https://www.pclob.gov/library/702-Report.pdf.
37
33