Dueling Amendments To Cut NSA Surveillance Funding; But One Is A Red Herring To Trick Congress

from the vote-for-the-right-one dept

We've been talking about the effort by Rep. Justin Amash to pass an amendment to the defense appropriations bill that would strip funding from the NSA when it comes to their surveillance efforts. While some in the House were trying to block his amendment from getting anywhere, it's been ruled in order and is likely to be voted on this week, most likely tomorrow (Wednesday). To be clear (as we'll describe in more detail below), it only tries to stop the funding of one specific program: the bulk collection of metadata. You can see the amendment here, but the key text:

None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence: ‘‘This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).’’

To translate this back to English, it's saying that Congress would basically defund the vast dragnet gathering of every bit of metadata done by the NSA on all phone records (and potentially other bulk records not yet revealed). These are done under a very questionable interpretation of §215 of the Patriot Act, which is the "tangible things" section or the "business records" section. In the law, it's also known as 50 USC 1861, where any common sense reading of the law would suggest that it only applies to specific records related to a non-US person under investigation. But, it's been twisted and stretched to mean the NSA can collect all records on all phone calls to search through at a later date at their leisure. What Amash's amendment is seeking to do is to basically say no funds can be use for this crazy and twisted interpretation, but rather funds can be used for the original and common sense interpretation. That is, the feds can still request business records under this section, but only if those specific records "pertain to a person who is the subject of an investigation."

In short: this part of the law can no longer be used to justify "collect everything and sort it out later."

However, since NSA supporters were unable to kill the Amash amendment outright, it looks like they've moved onto a sneaky alternative move: getting Rep. Richard Nugent to introduce a competing amendment that looks like it does something similar in defunding NSA surveillance, but in reality just reinforces the status quo. In other words, the Nugent amendment is a nefarious red herring, designed to attract votes from Reps away from Amash's amendment. It's a pretty scammy trick. The Nugent Amendment reads as follows:

None of funds made available by this Act may be used by the National Security Agency to—

(1) conduct an acquisition pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 for the purpose of targeting a United States person; or

(2) acquire, monitor, or store the contents (as such term is defined in section 2510(8) of title 18, United States Code) of any electronic communication of a United States person from a provider of electronic communication services to the public pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978.

At a quick glance, these amendments may look similar. Both say stuff about how no funds can be used for certain forms of surveillance. But the specifics are very important here. There's been an awful lot of confusion over the past couple of months of revelations between two different programs and which laws they come under. As described above, much of the concern with the vast collection of data is about Section 215 under the Patriot Act. The separate concerns, about the PRISM program, fall under Section 702 of FISA. It looks like the Nugent amendment may be pulling funding from that, but it's not. It just says that it wouldn't allow funds to be used for Section 702 if it's "targeting a US person." But Section 702 already forbids the targeting of US persons and while there are some questions as to how well the NSA follows this limitation, so far there's been no real evidence that 702 is used to target US persons. So, this is just restating the status quo, and doing absolutely nothing to fix the gross reinterpretation of Section 215.

There are problems with a wide variety of NSA programs, but the Amash amendment actually seeks to pull funding from one of the worst parts, while the Nugent amendment has the appearance of doing so while actually just reinforcing the status quo. Someone looks like they're trying to pull a fast one on everyone. Now might be a good time to phone your own elected representative to tell them that you expect them to support the Amash Amendment. If the Amash Amendment passes, there's nothing wrong with the Nugent Amendment also passing -- it doesn't really change anything. But if any Rep votes for the Nugent Amendment believing it's an alternative to the Amash Amendment, they're making a huge mistake.

Filed Under: fisa, funding, justin amash, nsa, nsa surveillance, patriot act, red hering, richard nugent, section 215, section 702

Rep. Justin Amash Now Looking To Strip NSA Of Its Power To Collect Phone Data On Innocent Americans

from the telcos-will-have-to-find-a-different-way-to-ingratiate-themselves-with-the-govt dept

We recently wrote about Rep. Justin Amash's plan to strip the NSA of funding by adding an amendment to the defense appropriations bill making its way through the house. The plan was not without its obstacles, not the least of which was a last-minute change in rules deliberately aimed at preventing actions like Amash's.

With the open amendments process effectively nullified by the change in process, Amash has changed tactics a bit.

Representative Justin Amash of Michigan is on his way to forcing the first legislative showdown over the National Security Agency’s controversial policy of collecting the phone logs of every American.

The venue for the fight is an amendment to the Defense Appropriations bill that would ban the NSA from collecting information from people who aren’t under investigation.

This one seems like it might have a better chance of surviving any pushback by Republicans hoping to shepherd the appropriations bill through the house. Even with the rules change, if Amash's amendment is allowed to receive a floor vote, it could still end up as part of the larger bill. So far, the House Rules Committee is fighting the amendment by postponing the vote, something it did twice last week.

Even if the HRC manages to kill off the amendment by denying it a floor vote, it may find itself facing something even worse.

The catch is, if the Rules Committee doesn’t allow a vote on the amendment, Amash and a coalition of Republicans and Democrats probably have the votes to bring the whole bill down. To do so, they could vote against the “rule,” which governs debate for the bill. Those are typically party-line votes, so only a few Republicans would need to join the Democrats to defeat it.

Amash's actions can't be making Speaker of the House John Boehner very happy. Rather than easing through an annual DoD budget, Boehner is facing combative legislators attempting to send a message to the NSA (and to their constituents). Neither option looks particularly palatable, and thus far, the Speaker hasn't shown he can muster a unified front, much less cross party lines like Amash can.

Amash says the amendment could get widespread support in a roll call vote. “The coalition is much broader than just libertarian-leaning conservatives and liberals. If you talk to members from across the political spectrum you’ll find widespread disapproval of what the NSA is doing...”

Either way this plays out, the NSA's going to be perturbed. If the appropriations bill sails through with the amendment attached, it will be faced with a possible ban on part of its domestic surveillance activities. There's little doubt the NSA will get its powers reinstated, but it will have to go through a very public battle in order to do so. In the current climate, it's doubtful that many would leap to its defense, other than the usual suspects.

If Amash's amendment is prevented from receiving a floor vote, the entire appropriations bill might be shot down. If that happens, and the Department of Defense's budget is in jeopardy, you can imagine the Speaker's office will be quickly filling up with agency heads looking to get their hands on an impotent Boehner.

Filed Under: congress, justin amash, nsa, nsa surveillance

Senator Rand Paul Wants A Class Action Lawsuit Against NSA Surveillance

from the how-about-doing-something-in-congress-first dept

We've been hearing more about outraged Congressional Representatives and Senators concerning NSA surveillance, with Rand Paul announcing that he's going to file a "class action lawsuit" against the administration, and Rep. Justin Amash suggesting something similar. While I appreciate the gesture, it seems like since those two (and others) are in Congress, their time might be better spent seeing what they can do to fix things from there. The lawsuits are going to flow, that seems fairly certain. But we'd already seen Senators and Representatives who tried to alert the world to what was going on prior to the leaks, so why don't Amash, Paul and the others team up and fix things the way they can: by using the legislature to rein in an intelligence community that is out of control, in large part because of permission Congress gave them.

Filed Under: class action, congress, justin amash, nsa, rand paul, surveillance

CISPA Renders Online Privacy Agreements Meaningless, But Sponsor Sees No Reason To Fix That

from the all-talk dept

CISPA's sponsors insist the law is 100% voluntary—it doesn't compel companies to do anything. But as we've been warning for a year and warned again yesterday, the bill's blanket immunity provision doesn't merely clear a "legislative thicket" of laws restricting information-sharing about cyber threats. It also bars companies from making enforceable promises to their users about how they might share users' information with the government or other companies in the name of protecting cybersecurity. Yesterday the House Rules Committee refused to allow a bipartisan amendment, sponsored by Rep. Justin Amash to fix this problem, to be brought to the floor for a vote.

At that Committee meeting (1:01:45), the bill's chief sponsor Chairman Rogers emphatically repeated his earlier assertions that CISPA wouldn't breach private contracts in response to questions from Jared Polis:

Polis: Why wouldn't it work to leave it up, getting back to the contract part, and I think again there may be a series of amendments to do this, if a company feels, if it's voluntary for companies, why not allow them the discretion to enter into agreements with their customers that would allow them to share the information? ...

Rogers: I think those companies should make those choices on their own. They develop their own contracts. I think they should develop their own contracts. They should enforce their own contracts in the way they do now in civil law. I don't know why we want to get in that business.

And yet... CISPA will go to the House floor as written, providing an absolute immunity from "any provision of law," including private contracts and terms of service.

Only in Congress can you swear up and down that your bill doesn't do X, then refuse to amend it so that it really doesn't do X—and then lecture those who note the disconnect, like Polis, with patronizing comments like "once you understand the mechanics of the bill..." (1:02:50).

It brings to mind what Galileo said after he was forced to sign a confession recanting belief in Copernicus's heretical idea that the Earth revolves around the sun: "And yet, it moves."

And yet... for all Rogers' bluster, CISPA moots private contracts—and House Republican leadership won't fix the problem, even when five of their GOP colleagues offer a simple, elegant fix.

This is the same stubborn refusal to accept criticism and absorb new information that brought us SOPA, PIPA and a host of other ill-conceived attempts to regulate the Internet. It's the very opposite of what should be the cardinal virtue of Internet policy: humility. Tinkering with the always-changing Internet is hard work. But it's even harder when you stuff your fingers in your ears and chant "Lalalala, I can't hear you."

The good news is that, as with SOPA, this fight transcended partisan lines, uniting a Democrat like Jared Polis (an openly gay progressive from Boulder) with a strict constitutionalist like Justin Amash (the "Ron Paul Republican" from Grand Rapids Michigan)—and four more traditional Republicans. This is precisely the realignment predicted 15 years ago by Virginia Postrel in The Future and Its Enemies. On one side are those profoundly uncomfortable with change, desperate to control and plan the future, and so insecure about their own understanding of technology that they inevitably perceive criticism as a personal attack. On the other are those far more humble and more willing to let the future play out in all its messy unpredictability. The first camp is always pushing for the one, right piece of legislation that will avert a crisis. The second camp admits they don't know the one, best way to deal with a problem like encouraging sharing of cyberthreat information while protecting user privacy, so they reject static rules that can only be changed by Congress. They want simple rules for a complex world. At a minimum, they want what law Professor Richard Epstein argues in his book Simple Rules for a Complex World--the perfect slogan for this camp--"the most ubiquitous legal safety hatch adds three words to the formal statement of any rule: unless otherwise agreed."

It's not a battle between Left and Right, or conservatives and progressives. It's a battle between attitudes towards the future: the stasis mentality of Congressmen like Mike Rogers and Lamar Smith (of SOPA infamy) and the dynamism of Justin Amash and Jared Polis, and SOPA foes like Republicans Darrell Issa and Jason Chaffetz and Democrats Ron Wyden and Zoe Lofgren.

The dynamists may have lost this battle. But, like Galileo, we'll eventually win the war. The only questions are: How many more poorly crafted, one-size-fits-all laws will the stasists put on the books in the meantime? How long it will take to clear the real "legislative thicket"--all the complex laws that attempt to provide a single answer for a complex and unknowable future? And when will it finally become unacceptable for Congressmen like Mike Rogers to ram through legislation that doesn't even do what they claim?

Berin Szoka (@BerinSzoka) is President of TechFreedom (@TechFreedom), a dynamist tech policy think tank.

Filed Under: cispa, cybersecurity, dynamism, house rules committee, jared polis, justin amash, mike rogers, privacy

Chipping Away At The First Amendment: New 'Trespassing' Bill Could Be Used To Criminalize Legitimate Protests

from the chip-chip-chip dept

Don't you just love Congress, where almost no bills actually are what they say on the tin? There's some buzz building online about the "Federal Restricted Buildings and Grounds Improvement Act of 2011" (or HR 347), which has been positioned as a simple updating of trespassing laws concerning federal grounds. However, as some are pointing out, hidden in there is quite the Easter egg that effectively outlaws protests near people who are "authorized" to be protected by the Secret Service (mainly the President and Vice President, but it could include a lot more as well). Only three Representatives voted against it, including Rep. Justin Amash who explained his concerns via Facebook:

Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it's illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it's illegal to be in that area and has no reason to suspect it's illegal.

Some government officials may need extraordinary protection to ensure their safety. But criminalizing legitimate First Amendment activity -- even if that activity is annoying to those government officials -- violates our rights. I voted "no." It passed 388-3.

The specifics of the law pretty clearly seem to make it a crime to do a standard form of protest, such as anything that "impedes or disrupts the orderly conduct of Government business or official functions" or just if someone "engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds...." As Amash notes, there can be times when it makes sense to protect certain individuals, but "disorderly or disruptive" conduct is a pretty broad brush... and it's one very frequently abused by law enforcement officials.

You know all those stories we've had about people being arrested for filming police? Quite often those people are charged with disorderly conduct -- which often seems to boil down to "that person did something law enforcement doesn't like." To then take that and say that anything that constitutes disorderly conduct on the grounds of a building where someone who is protected by the Secret Service is a crime, it appears to be wide open to abuse, and a pretty clear restriction on the free speech rights of anyone wishing to engage in normal and healthy protest of our political process.

On top of that, the punishment can be pretty severe. You can get up to a year in jail for being found guilty of these things, and that jumps up to 10 years if you are carrying a "deadly or dangerous weapon."

As Amash notes, there are legitimate safety concerns to be aware of, and there are issues with doing something that significantly impedes government regulations. But it's really not difficult to see how this bill could very, very easily be stretched to be used against those doing standard protesting against significant political figures.

Filed Under: first amendment, justin amash, protests, secret service, trespassing