The House struck a blow for reasonable limits on the NSA's overreaching surveillance Thursday, passing an amendment to the 2015 Defense appropriations bill from Reps. James Sensenbrenner (R-WI), Thomas Massie (R-KY), Zoe Lofgren (D-CA), and others that would limit "backdoor searches." The amendment passed easily, 293-123.
Under the FISA Amendments Act adopted in 2008, Congress expanded the NSA warrantless surveillance powers to include a sort of blanket warrant on entire surveillance programs, rather than on the specific targets. Congress included a provision in the FAA to bar the intelligence agencies from using that new power to "target" Americans, but the NSA has found a way around that. They collect huge amounts of communications involving both Americans and foreigners, with the understanding that the foreigners are the targets. But they store that information, and have asserted that they can search this database for information about the Americans who were swept up in it, and that that doesn't break the law against targeting Americans. That's a backdoor search, and the House just said they can't do it anymore. This amendment says that the NSA can't use any of their funding to search that database specifically for a U.S. target unless it has a specific warrant. It also bars the NSA and CIA from making device manufacturers install technology that create "backdoors" in their devices.
What does this mean for the chances of curtailing the NSA?
By itself, the amendment falls short of the kind of sweeping NSA reforms some civil liberties groups support. But the vote represents the first time a house of Congress has voted to curtail the controversial practices revealed by Ed Snowden last year. It will give NSA critics renewed political momentum and may force President Obama to make further concessions to critics of the NSA.It should also strengthen the hand of the Senate reformers, Patrick Leahy, Mark Udall, Ron Wyden. This was a strong, bipartisan vote—for once—with 158 Democrats supporting it and 135 Republicans. The Senate, the White House, and the NSA and CIA have to take this seriously.
In August, Rep. Justin Amash (R-MI) offered an amendment to last year's defense funding bill that would have shut down a different NSA program: the collection of Americans' phone records. That vote failed in a razor-thin 205 to 217 vote. The surprising closeness of the vote was widely interpreted as a sign of congressional anger over the NSA's actions.
Julian Sanchez, a senior fellow at the Cato Institute, argues that the vote is a rebuke to the House Permanent Select Intelligence Committee. That body is supposed to serve as a watchdog over NSA surveillance, but in recent years it has more often acted as a defender of NSA policies. The vote, Sanchez says, "demonstrates pretty dramatically that the gatekeepers in the Intelligence Committee are out of synch with the sentiment of the broader House."