A bipartisan group of House members are preparing to introduce measures widely supported by their colleagues that would rein in NSA domestic surveillance and protect encryption. But a change in procedure adopted by the House leadership may deny the House a chance to even consider their proposal.
Based on their successful amendments to the House Defense Appropriations bill two years ago, Representatives Thomas Massie (R-KY), Zoe Lofgren (D-CA), and Ted Poe (R-TX) aim to reintroduce measures backed by civil liberties organizations and activists as amendments to the Defense Appropriations bill currently moving through the House.
When allowed an opportunity to support similar measures in 2014, policymakers came together across party lines to approve them, with 2/3 of the House in agreement to defend encryption and protect privacy.
By prohibiting backdoor searches and preventing the NSA and CIA from undermining encryption devices and standards, their proposals would represent a significant step forward in the ongoing battle to secure privacy and security in the face of ongoing unconstitutional surveillance documented in 2013 by Edward Snowden.
Stopping Backdoor Searches
The first measure would prohibit government funds from being spent to perform warrantless backdoor searches. Backdoor searches are when the government searches its database of intercepted online traffic for the communications of specific Americans—without a warrant, prior court authorization, or any external restriction.
Even policymakers can be targets of warrantless backdoor searches. For instance, members of Congress who exchange emails discussing a controversial foreign policy issue—say, for example, the nuclear anti-proliferation agreement with Iran—are likely to be included as NSA programs collect related communications. The same is true for any constituents who discuss foreign policy issues, either with their representatives or among themselves. Once one agency (often NSA) collects those communications to include in a government database, other agencies (such as the FBI) are able to search those communications without any restriction.
These searches are controversial because the Foreign Intelligence Surveillance Act (FISA) requires agencies to seek and secure a judicial warrant in order to intercept communications involving domestic targets. Backdoor searches circumvent this law by enabling agencies to spy on Americans without legal restrictions imposed by FISA to minimize the collection of intelligence about United States persons, and the retention or dissemination of that data.
Under the Massie-Lofgren amendment, the NSA would be prohibited from using any funding from the Defense Appropriations bill to conduct these kinds of warrantless searches targeting Americans.
A second provision would protect encryption standards and devices. In particular, it would prohibit Defense Department funds from being spent to create security vulnerabilities in software or hardware manufactured by American companies beyond their obligations already imposed under other laws.
In the past, the NSA has undermined encryption, user privacy, and security through a range of efforts, from "extend[ing] the reach of surveillance under cover of advising companies on protection," to intercepting hardware shipments and surreptitiously undermining their operation.
In the wake of widespread controversy stemming from the government's efforts to undermine the device encryption of Apple iPhones, public appreciation for encryption has only grown in the two years since the Massie-Lofgren amendment first passed the House.
When allowed an opportunity to support similar measures in 2014, policymakers came together across party lines to approve them, with 2/3 of the House in agreement to defend encryption and protect privacy. Their vote reflected a remarkable—and increasingly rare—bipartisan consensus.
Despite overwhelming support across both major political parties to defend encryption and curtail backdoor searches, Congressional leaders from both major political parties came together that fall to block meaningful reform by stripping the Massie-Lofgren measures from the final Senate bill. Today, their bipartisan sponsors are ready to introduce them again as amendments to this year’s Defense Appropriations bill.
Unfortunately, however, changes to the House rules imposed under Speaker Paul Ryan (R-WI) may prevent members from even considering the Massie-Lofgren amendments. The House Rules Committee could allow an open rule enabling amendments, or it could choose to maintain a closed rule permitting no debate on amendments to protect privacy and security.
Closing the backdoor search loophole and protecting encryption would continue the initial steps that Congress began in last year's USA Freedom Act, which imposed some limits on the collection and retention of telephone records and increased transparency at the secret FISA court.
Approving the Massie-Lofgren measures would also set the stage for the scheduled expiration in 2017 of other legal authorities enabling Internet spying, namely section 702 of the Foreign Intelligence Surveillance Act. While civil liberties groups remain united in calling for section 702 surveillance to end absent significant reform, Congress should take advantage of the bipartisan consensus across the House to impose limits before then on NSA and CIA activities that indirectly target Americans and undermine encryption standards that keep us safe.
At the very least, members of Congress should have a chance to consider the proposals, and an opportunity to cast their votes.