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The Time to Shut the NSA's Backdoors is Now—Not in Two Years

DEEPLINKS BLOG
May 13, 2015

The Time to Shut the NSA's Backdoors is Now—Not in Two Years

As we’ve noted, our support for the current version of USA Freedom that is moving through the Senate and the House is conditional on amendments that improve the bill. While we hope to see such amendments, we also know that they may not be possible, since Judiciary Committee leaders noted during the USA Freedom markup that it is the product of “painstaking and careful negotiations,” that would be killed by any changes. And yesterday, the hearing on HR. 2048 in the House Rules Committee made it clear that USA Freedom Act will not be amended.

However, several members of the House Judiciary Committee made some significant statements about what reform they might support going forward—including statements about reforming Section 702. So did members of the Rules Committee. Now, we have a chance to see whether they’re willing to act on those statements.

That’s because Representatives Ted Poe, Thomas Massie, and Zoe Lofgren have introduced the bipartisan End Warrantless Surveillance of Americans Act (H.R. 2233). EFF joined 29 groups to send a letter in support of the legislation this week, and we look forward to seeing which lawmakers support it as it moves through the house.

H.R. 2233 has goals similar to last year’s Massie-Lofgren amendment to the Department of Defense Appropriations Act for FY 2015, which passed overwhelmingly with strong bipartisan support: 293 ayes, 123 nays, and 1 present.  That legislation would have closed the so-called National Security Agency “backdoors”—security flaws engineered into products and services to enable or facilitate government access to, and warrantless searches of, the contents of Americans’ communications—by prohibiting NSA and the Central Intelligence Agency from using appropriated funds to mandate or request that companies build backdoors into products or services.

H.R. 2233 goes further, because the prohibition on mandating or requesting backdoors would apply to any federal agency. This change is especially important for U.S. companies, who have suffered reputational harm overseas, and even lost business, in the wake of revelations about the extent of NSA spying. H.R. 2233, like the Massie-Lofgren amendment, does have an exception for backdoors mandated by the Communications Assistance for Law Enforcement Act, a law that we’ve long had concerns about.  

H.R. 2233 would also address the “backdoor search loophole” by prohibiting any officer or employee of the United States from searching through communications collected under Section 702 for communications of a particular U.S. person without a court order. This provision has exceptions for certain limited circumstances.

What’s new is that H.R. 2233—unlike last year’s Massie-Lofgren amendment—aims to prohibit backdoor searches for particular U.S. persons of communications collected under authorities other than Section 702—including, according to Rep. Lofgren, Executive Order 12333. While many people have never even heard of this presidential order, as the Washington Post pointed out in October, “Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) has acknowledged that Congress conducts little oversight of intelligence-gathering under the presidential authority of Executive Order 12333 , which defines the basic powers and responsibilities of the intelligence agencies.”

H.R. 2233 does have flaws. The above prohibition on EO 12333 searches would be an amendment to the Intelligence Authorization Act of 2015, so it presumably would limit only funds appropriated under that Act.  And while the bill prohibits backdoors, it’s not clear how that prohibition would be enforced or where it would be published.

That being said, the legislation is a good start to shutting backdoors. As the coalition letter states:

All three of these measures would make appreciable changes that would advance government surveillance reform and help rebuild lost trust among Internet users and businesses, while also preserving national security and intelligence authorities. We urge the Congress to move speedily to enact this legislation.

While the House Judiciary Committee repeatedly noted that they thought the FISA Amendments Act should be fixed when it is up for reauthorization, and some members of the Rules Committee noted that they would be happy to see another appropriations amendment, Rep. Massie made it clear why these changes can’t wait:

The constitution is not negotiable, and we have a crisis right now…if we wait two years, we are prolonging a constitutional crisis, and that is dangerous.

He also pointed out that business are suffering right now: “If we put it off, I don’t think you can undo the damage that will be done” to U.S. businesses.

We couldn’t agree more—the time to fix the backdoor problem is now.

But while USA Freedom attempts to rein in overbroad surveillance, and H.R. 2233 focuses on the government’s backdoors, some in Congress are trying to ensure that intelligence agencies get to keep doing exactly what they have been doing. Legislation introduced by Senate Majority leader Mitch McConnell and Senate Select Committee on Intelligence Chair Richard Burr would reauthorize three sections of the Patriot Act, including Section 215, through 2020. If you want to see Congress end mass surveillance under the Patriot Act, let your elected representatives know at Fight215.org.

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