In 2013 and 2014, a bipartisan amendment to limit surveillance by the National Security Agency and protect encryption was passed with increasingly wide margins in the House of Representatives, but later stripped out in a Senate conference committee. This Wednesday the amendment, sponsored again by Democratic Rep. Zoe Lofgren of California and Republican Reps. Tom Massie of Kentucky and Ted Poe of Texas, was defeated in the wake of the Orlando massacre committed by Omar Mateen.
The amendment to the Defense Appropriations bill, as in the past, would have prohibited funds being allocated for the NSA to continue warrantless searches of Americans’ data authorized under Section 702 of the FISA Amendments Act. It also would have barred the Defense Department from spending on projects designed to make software or hardware vulnerable to security breaches.
Essentially, it was a move to reinforce the much-battered Fourth Amendment.
The Electronic Frontier Foundation notes that the NSA has previously weakened encryption as well as user security and privacy by various means including "’extend[ing] the reach of surveillance under cover of advising companies on protection,’ and intercepting hardware shipments and surreptitiously undermining their operation.”
The amendment was backed by civil liberties organizations with the aim of keeping the NSA and the Central Intelligence Agency from subverting the purpose of encryption devices and standards. Activists have viewed it as one step forward in their efforts to maintain citizens’ security and privacy against the vast amount of unconstitutional government surveillance, evidence of which was leaked three years ago by whistleblower Edward Snowden.
Cory Bennett reports:
“This amendment prohibits the government from searching data already in its possession collected lawfully … to determine whether Omar Mateen was in contact [with terrorists overseas],” said House Judiciary Committee Chairman Bob Goodlatte (R-Va.) during the extended debate over the fiscal 2017 defense appropriations bill.
Investigators have said they’re trying to determine whether Mateen communicated with any terrorist groups at home or abroad — a task that would be made more difficult if he used encryption to shield data on his phone or computer. [...]
The language “does not take any tools away from those that want to investigate what happened in Orlando,” Massie insisted.
The amendment’s encryption provision, advocates say, would have kept the CIA and NSA from forcing companies to alter their products to make government snooping easier. Foes argued that the latest encrypted devices—iPhones and some apps, for instance—prevent authorities from reading digital communications even in those instances when a lawful warrant has been issued.
They cite the example of the San Bernardino shooting last December in which 14 people were killed and more than 20 injured. The FBI could not unlock the phone of Syed Rizwan Farook and took Apple to court to try and force the issue. The case became moot when the bureau found a third party who managed to bypass the phone’s encryption software.
The San Bernardino killings, the Paris and Brussels killings (in which 162 people were murdered), and the 49 deaths in Orlando made it easier for surveillance hawks to get their way in the House Wednesday. The amendment went down in a 198-222 vote, hugely different from the big margins in favor of it the two previous years.
At the end of next year, Section 702 of the FISA Amendments Act expires. The election in November could change the balance of power in Congress in such a way as to prevent its renewal and deal with the encryption issue. Progressives should do all we can over the next five months to leverage that change.
