House Intel Boss, Rep. Devin Nunes, Lying To Congress About Attempt To Stop Encryption Backdoors

from the liar-liar dept

Wed, Jun 15th 2016 11:48am — Mike Masnick

There are some in Congress who apparently have no problem deceiving both their colleagues and the American public in the pursuit of making Americans less safe and putting our country, economy and infrastructure at risk. This time, it's House Intelligence Committee chair Rep. Devin Nunes, along with Rep. Lynn Westmoreland, who chairs the NSA subcommittee. They've been sending around a letter that blatantly misrepresents a proposal designed to better protect Americans' privacy and security.

For the past two years, around this time, we've talked about the importance of an attempt by Reps. Thomas Massie and Zoe Lofgren to prevent two different kinds of "backdoor" surveillance -- the use of backdoor searches to the NSA's 702 collection and (perhaps more importantly) attempts to backdoor encryption. The Massie/Lofgren amendment has been overwhelmingly supported in the House the past couple of years, but the Senate (with help from surveillance state supporters in the House) keeps conspiring to strip it out of the final agreement.

The Massie/Lofgren amendment is back again this year, and it's pretty straightforward. First, it defunds gov't employees from doing "backdoor" searches (i.e., searching through massive databases of material on Americans that was collected "incidentally" but still kept anyway):

... none of the funds made available by this Act may be used by an officer or employee of the United States to query a collection of foreign intelligence information acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) using a United States person identifier.

But, more importantly, it blocks any funding for attempts to force anyone to backdoor encryption:

none of the funds made available by this Act may be used by the National Security Agency or the Central Intelligence Agency to mandate or request that a person (as defined in section 101(m) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(m))) alter its product or service to permit the electronic surveillance (as defined in section 101(f) of such Act (50 U.S.C. 1801(f))) of any user of such product or service for such agencies.

While that's a bit of a word jumble, in short, it says that the NSA and CIA cannot force companies to backdoor encryption to enable government surveillance. This point is especially important this year, following on the DOJ/FBI's flubbed attempt to force Apple to decrypt some iPhones earlier this year, combined with the dangerous Burr/Feinstein anti-encryption bill (thankfully dead for now), to offer Congress a clear attempt to say that it will not accept attempts to backdoor encryption.

In the past, those in Congress against this amendment have tried to stop it by totally misrepresenting what the amendment covers, and that appears to be the strategy of Nunes and Westmoreland this time around.

In the letter being sent around to other Representatives, they lay on a thick layer of misleading to downright false FUD (fear, uncertainty and doubt) -- and of course, they exploit the tragedy in Orlando to further their misleading claims.

The national security threats to the United States and its allies are greater today than at any point since 9/11. To keep Americans safe, our Intelligence Community needs to fully employ every tool available to it. We cannot be lulled into a false sense of security. As recent events in Orlando have made tragically clear, terrorists will continue to attack the U.S. homeland.

That seems like a somewhat misleading and self-serving description of what happened in Orlando. While there's still a variety of reports, it's clear that the shooter was an American, born in America, and it doesn't appear he had any connection whatsoever to overseas terrorist organizations. In short: this doesn't look like an issue that the intelligence community would have been able to figure anything out about. The shooter was already known to the FBI, who investigated him and found nothing. And then it appears that he did the shooting on his own, meaning there is little "communication" that the intel community would have needed to track. But even if there was, nothing in this amendment would stop law enforcement or the intelligence community from getting access to such information. Nothing.

But Nunes and Westmoreland are just warming up. It's the next part that is really extremely misleading.

Despite the threats that face us, Congressman Massie and Congresswoman Lofgren's amendment to the Department of Defense Appropriations Act (H.R. 5293) would end the use of a vital tool for identifying and disrupting terrorist plots at home and abroad. If this amendment were enacted, the Intelligence Community would not be able to look through information lawfully collected under FISA Section 702 to see if Omar Siddiqui Mateen, the Orlando nightclub attacker, was in contact with any terrorist groups outside the United Statets.

This is just blatantly false. It's true that outlawing backdoor searches would mean that law enforcement and intelligence wouldn't be able to do backdoor searches on Mateen's communications, but this falsely implies that's the only way in which Mateen's communications could be checked. That's just wrong. Law enforcement still can (and I'm sure already has) get access to Mateen's call records and lots of other communications information through a variety of third parties (and I'm sure would have no trouble getting warrants issued if necessary). Law enforcement and the intelligence community could still get a warrant to search through the information that has been collected. They just need to get a warrant -- which should be pretty damn easy. So there's nothing stopping law enforcement from figuring out if Mateen was in contact with people overseas. The bill just means that the intelligence community can't just go randomly sniffing through the massive database they've already collected of "incidental" information from other searches.

This is no way to legislate. To blatantly mislead their Congressional colleagues in order to protect programs that harm Americans' privacy and security is a pretty cowardly approach to handling these issues. It's fine to debate the relative merits (or lack of merits) of the Section 702 program or other surveillance techniques, but flat out lying to colleagues to block an amendment that they've overwhelmingly supported for the past two years just seems... dishonest and sleazy.

MASSIE-041-Xml (PDF)MASSIE-041-Xml (Text)

Nunes-FUD-letter (PDF)Nunes-FUD-letter (Text)

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Filed Under: amendment, appropriations, backdoor searches, backdoors, devin nunes, encryption, house intelligence committee, lynn westmoreland, omar mateen, section 702, surveillance, thomas massie, zoe lofgren

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Anonymous Coward, 15 Jun 2016 @ 12:15pm

Law enforcement and the intelligence community could still get a warrant to search through the information that has been collected

I do not think a judge will sign a warrant to search the data belonging to every one, because the security services suspect everyone of doing something wrong.
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Hephaestus (profile), 15 Jun 2016 @ 12:26pm

This election cycle is about people being really fed up with politics as usual. Hence the rise of Sanders and Trump.

With how many people are getting news through social media, and online through various other sources, bypassing traditional media, lets hope these politicians and bureaucrats keep this business as usual for another 4 or 5 years. Perhaps then we can have term limits in the form of a "vote them all out" campaign.
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Anonymous Coward, 15 Jun 2016 @ 12:27pm

So essentially Representative Nunes is trying to sabotage U.S. technological superiority and further suppress U.S. economic activity by demoralizing the 18%~ of Americans that avoid conducting economic activity online due to fears of Government surveillance.

And for what? The opportunity to jump at yet *another* shadow? Gleefully sacrifice everyone else's rights in order to assuage his paranoid delusions that the only way to protect our liberties is to ensure there are no liberties left to protect?
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Anonymous Coward, 15 Jun 2016 @ 12:37pm

just seems... dishonest and sleazy.

Just seems... standard congressional procedure.

There fixed it for you.
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Anonymous Coward, 15 Jun 2016 @ 12:41pm

Re:
Wrong attitude to have. There are good Congresspersons out there, but cynicism like yours discourages citizens from meeting with their lawmakers. When citizens don't see lawmakers, all that are left are lobbyists.

Help the good Congresspersons. Empower them. They are out there.
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Anonymous Coward, 15 Jun 2016 @ 12:44pm

The line about our security threats being so large made me laugh - if anything these clowns have helped to amplify threats with hyper reactionary policies.
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Anonymous Coward, 15 Jun 2016 @ 12:44pm

Re: Re:
To clarify - I'm not saying you're the problem. Just that the cynicism you displayed is all too common. There's no need for it!
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JonC (profile), 15 Jun 2016 @ 1:22pm

I love the idea behind this amendment, but the text seems to have massive loopholes.

First we have this:
... none of the funds made available by this Act may be used by an officer or employee of the United States to query a collection of foreign intelligence information acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) using a United States person identifier.

Ok, so an officer or an employee of the United States can't do it, but what about a contractor?

Now this part:
none of the funds made available by this Act may be used by the National Security Agency or the Central Intelligence Agency to mandate or request that a person (as defined in section 101(m) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(m))) alter its product or service to permit the electronic surveillance (as defined in section 101(f) of such Act (50 U.S.C. 1801(f))) of any user of such product or service for such agencies.

It only mentions the NSA and the CIA. What about the FBI, DEA, ATF, etc?

I think it's critical to place strong limits on these powerful agencies. The spirit of the amendment seems to be good, but letter seems like it needs some improvement.
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Anonymous Coward, 15 Jun 2016 @ 1:30pm

I'm throwing the BS flag
The national security threats to the United States and its allies are greater today than at any point since 9/11.

No. It's not. The sum total of the damage that all foreign entities are capable of doing to the US is really inconsequential.

On the other hand, we're losing 30,000 people a year to gunfire. That's roughly ten 9/11's worth. Every year.

So if the goal here is to keep Americans safe, then let's start by making background checks work, let's stop providing access to guns to those on watch lists, and let's ban assault weapons.
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Anonymous Coward, 15 Jun 2016 @ 1:39pm

The lies they tell each other
Congress has devolved to the point of congressmen lying to each other, is nothing sacred?

Nope.
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David (profile), 15 Jun 2016 @ 1:43pm

Re: The lies they tell each other
Sorry, now I'm logged in.
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Anonymous Coward, 15 Jun 2016 @ 1:54pm

Re: I'm throwing the BS flag
I'm not an internet troll, but I am an optimist. I think that if you start over and really work hard, you can really hack a commenter off in this thread.
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Anonymous Coward, 15 Jun 2016 @ 2:12pm

Re: I'm throwing the BS flag
You are wrong. Taking guns away will save no one, you can't even get a report even remotely close to indicating it either.

People are killed with vehicles, hammers, knives, beating, long walks off build ledges you get the idea.

There are a lot of people accidentally placed on those watch lists, if you are okay with some random clerk taking peoples rights away just because they are a suspect then congratulations! You are everything wrong with the world today. Everyone is now guilty until proven innocent and I hope your ASS LANDS ON IT the next time you are on your way out to a vacation with the family!

Enjoy your anal exam terrorist!
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Anonymous Coward, 15 Jun 2016 @ 2:17pm

Re: Re: Re:
Hello mom!

Perhaps you should worry less about the tone people are taking over the internet and focus on the matter at hand.

If their attitude is wrong or bad, what makes your any better? Why is it that YOU are the authority on what attitude people can have or not have on the internet....

Whoooooooooo!
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Anonymous Coward, 15 Jun 2016 @ 2:21pm

Re:
Little secret. They don't amplify them.

THEY CREATE THEM!

Government has long been both the cause and solution to about 90% of the worlds problems. The US created the Terrorists and then lost control of them. Not that this is really a problem for the US government, it now gives them loads of excuses to quite easily get all of the coward Americans to give up most of their rights with little challenge.
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David, 15 Jun 2016 @ 2:37pm

Be fair:
To blatantly mislead their Congressional colleagues in order to protect programs that harm Americans' privacy and security is a pretty cowardly approach to handling these issues.

Oh come on, they probably believe what they write. Never attribute to malice what can sufficiently be explained by stupidity.

Now just why the voters and tax payers would vote and pay for either malicious or stupid Congress Members is a different question, but then the presidential race looks like you'll get either one or both there as well without even looking at the running mates.
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Anonymous Coward, 15 Jun 2016 @ 2:38pm

Re: Re: Re:
I do know that not all congressmen are lairs, etc. However when you spend your day with pigs you become just as muddy. At some point you give up and either make pork chops or let the pig get stuff dirty all the time.

The problem is not my cynicism, the problem is that there are enough corrupt politicians that my cynicism is warranted.

If a politician wants to break the mould and operate in the best interests of all his/her constituents as well as the nation then let's give them praise. Until then I am calling it like I see it.
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That One Guy (profile), 15 Jun 2016 @ 2:50pm

Now don't you feel safer?
So you've got two people who are heads and/or high ranking members of groups supposedly meant to provide oversight over the NSA and intelligence agencies and act as a check on their actions, lying to their fellow politicians in order to prevent any sort of check or reduction of power regarding the intelligence agencies in question, making it abundatly clear that they have no interest in limiting the very groups they are supposedly meant to oversee.

This isn't a case of the fox guarding the hen-house, as that assumes that guard and 'guest' are working for different sides, this is more the fox guarding the fox-den, which is itself tasked with guarding the hen-house.
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Ed Allen, 15 Jun 2016 @ 3:03pm

Re: I'm throwing the BS flag
Yes, we all saw the evidence of how valuable secret, uncheckable lists kept by FBI personell are...
https://www.techdirt.com/articles/20140206/22585526126/court-says-fbi-agents-wrong-checkmark-p ut-woman-no-fly-list-barred-her-us-10-years.shtml
https://www.techdirt.com/articles/20140327/10164226 710/boston-bombing-suspect-avoided-cia-fbi-because-his-last-name-was-misspelled-dhs-database.shtml

I have no faith that the other agencies do any better with their lists.
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Anonymous Coward, 15 Jun 2016 @ 3:10pm

Re: Re: Re: Re:
Difference is that your rhetoric discourages people from talking to their Congresspersons? Which, as I said, results in a situation where only lobbyists get to have any say as they're the only ones talking (in person).
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Zonker, 15 Jun 2016 @ 3:33pm

People lie with their words. You have to uncover their intent to find the truth.
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Mike Masnick (profile), 15 Jun 2016 @ 4:38pm

Re:
It only mentions the NSA and the CIA. What about the FBI, DEA, ATF, etc?

To be fair, this is a DOD Appropriations bill, so I don't believe it covers any of those other groups, which are part of either DOJ or DHS.
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bob, 15 Jun 2016 @ 5:15pm

Re: Re: Re: Re: Re:
Wrong person to direct your comment. I didn't write the original reply to your reply. I know it's confusing because of the anonymous coward name. I did write the second reply though.

If people are still too stupid to assert their rights in influencing politicians that is their problem. Money speaks louder than words and so even if constituents do talk to their reps the lobbyists still win when the politician is corrupt.

I will put a name on these from now on btw
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Anonymous Coward, 15 Jun 2016 @ 5:24pm

Intel lingo: no lies, just "misdirections"
It depends upon what the meaning of the word 'is' is...

Oh wait, we're preparing for another 2 terms of Humpty Dumpty Hillary ('[a word] means just what I choose it to mean — neither more nor less.")
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Anonymous Coward, 15 Jun 2016 @ 10:52pm

They can break all the laws, they learned from seeing Eric holder not be held accountable as the head of the DoJ. They know they won't be held accountable eother
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JonC (profile), 16 Jun 2016 @ 7:20am

Re: Re:
Good point, I missed that. Thanks for pointing that out.
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Anonymous Coward, 16 Jun 2016 @ 2:31pm

Re: Re:
Name them, please.
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Anonymous Coward, 16 Jun 2016 @ 2:35pm

Re: I'm throwing the BS flag
And doctors. You forgot about banning doctors. Medical mistakes kill way more than 30,000 people per year.

Oh, and the military. Let's ban that too.
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John Fenderson (profile), 16 Jun 2016 @ 3:58pm

Re: Re: Re: Re:
The problem isn't so much individual politicians, it's institutional corruption.

Let's say you are a saintly person who somehow got elected to Congress. Once you arrive there, you will quickly learn that you have a choice: you can either play the corrupt congressional games or you can have no chance of actually accomplishing anything at all while you're there.
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Dheneb, 16 Jun 2016 @ 5:02pm

Re: Re: Re: Re: Re:
The saintly person will take the second option.
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Wendy Cockcroft, 17 Jun 2016 @ 2:33am

Re: Re: I'm throwing the BS flag
http://on-t-internet.blogspot.co.uk/2016/02/come-revolution-good-luck-with-that.html
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Wendy Cockcroft, 17 Jun 2016 @ 2:34am

Re: Re: I'm throwing the BS flag
We do need to be able to challenge them and get them corrected, that's reasonable and fair.
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Wendy Cockcroft, 17 Jun 2016 @ 2:35am

Re: Re: I'm throwing the BS flag
*Military-industrial complex. Making weapons of mass destruction for profit requires a market in which to sell them.
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John Fenderson (profile), 17 Jun 2016 @ 6:06am

Re: Re: Re: Re: Re: Re:
Which would mean that they're a one-term congressperson. But I would argue that an actual saintly person (rather than my iffy hypothetical one) would not run for office in the first place.
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Anonymous Coward, 17 Jun 2016 @ 8:44am

Re: Re: Re: Re: Re: Re: Re:
Which would mean that they're a one-term congressperson.

If so, then so be it.
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John Fenderson (profile), 20 Jun 2016 @ 9:50am

Re: Re: Re: Re: Re: Re: Re: Re:
Which reinforces my point: institutional corruption makes it nearly impossible for a genuine saint to have any serious effect as a congressperson.
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