ANNEX 15: THE LAW OF THE FIVE EYES
101.
Section 215 has become controversial in the light of the disclosures in the Snowden
Documents, when it became clear that the FBI had applied, on behalf of the NSA, for
orders authorising the collection of nearly all call information generated by certain
telephone companies in the USA. The NSA had then queried the database of
information that resulted by enquiring for all calls to or from telephone numbers in
respect of which there was a “Reasonable Articulable Suspicion” that it was associated
with terrorism (the seed number). The NSA then operated a system known as contact
chaining whereby all persons in contact with the seed number - the first hop - all
numbers directly in contact with the first hop numbers (the second hop) and all numbers
in contact with those second hop numbers as well (the third hop) could be accessed
and stored.122 The judges of the FISC had authorised that program pursuant to a series
of 90 day orders.
102.
Finally, EO 12333 provides an extra-statutory basis for the intelligence services to carry
out interception of communications. It was first issued in 1981 and has been amended
on three occasions since. Part 1 of EO 12333 sets out the various roles of the
intelligence bodies in the United States. Part 2 includes a broad power to collect
information. Comparatively little is known about the use of those powers. If it is relied
upon as a basis for carrying out interception, the intelligence agencies may do so
without judicial authorisation.
Oversight
103.
The intelligence services in the United States are subject to multiple forms of oversight.
In 2007 Congress established a Privacy and Civil Liberties Oversight Board to review
and oversee civil liberties in the context of national security. The Board has published
two report. Its first, in January 2014 concerned the “section 215 program” and held that
it did not comply with the statute itself. In particular, the Board held that the program
had been authorised by reference to counter-terrorism investigations in general, and
not a specific authorised investigation (as required). They also expressed their serious
reservations about whether or not it complied with the Constitution.123 A second report
in July 2014, concerning s702 concluded that certain historical programs “push the
program close to the line of constitutional reasonableness.”124 However, they
concluded that the program was, in broad terms, lawful. Both Houses of Congress also
provide legislative oversight in the form of a permanent select committee on
intelligence.
104.
A separate President’s Intelligence Oversight Board reports directly to the President on
potential violations of the law committed by the Agencies. Many of the Agencies
themselves also contain an Office of Inspector General, with a remit to review
compliance internally.125
122
Following a change in 2014 the FISC now has to approve RAS determinations before contact chaining
may be carried out.
http://www.fas.org/irp/offdocs/pclob-215.pdf. That was a view shared by the President’s Review Group
on Intelligence and Communications Technologies, p. 85.
https://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf.
http://www.pclob.gov/library.html page 9.
17th Report of Session 2013-14, HC231 (May 2014), p. 92.
123
124
125
369