Amendment Blocking Backdoor Searches, Backdooring Encryption To Be Added To Defense Funding Bill

from the well-here-we-go dept

In the last few weeks, we've pointed out that the House of Representatives have been attaching a bunch of interesting amendments to appropriations bills to block surveillance. Last week, for example, there was overwhelming support for an amendment to an appropriations bill that would block funding from NIST (National Institute of Science and Technology) for helping the NSA or CIA undermine encryption. Other amendments blocked funds being used by the DOJ/FBI to force companies to put backdoors into encryption. Other amendments stripped out funding for warrantless use of stingrays.

Now, with the focus on defense appropriations, it appears that Reps. Zoe Lofgren and Thomas Massie are pushing a repeat amendment of last year's bill to block funding for two different kinds of "backdoors" used in surveillance. You can see the amendment here.

There are two key parts to this. The first would block Defense funds from being used for so-called backdoor searches of information collected via the infamous Section 702 "upstream" collection program. We knew that the NSA felt that it was fine to sniff through these so-called "incidental" collections of information, but as we learn more and more about how they do so, the more worried we should be. These backdoor searches are a way for the NSA to spy on many people without ever needing to get a warrant -- and this amendment would block that in cases where the government is searching for information on a US person through that database of info:

Except as provided in subparagraph (b), none of the funds authorized to be appropriated by this Act may be used by an officer or employee of the United States to conduct a search of a collection of communications acquired under section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) in an effort to find communications of a particular United States person (other than a corporation).

The second part of the amendment would block funding for having the federal government demand products have backdoors in them:

Except as provided in subsection (b), none of the funds authorized to be appropriated by this Act may be used by an officer or employee of the United States to mandate or request that a manufacturer, developer, or seller of covered products design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency.

There is some overlap with some of those earlier amendments we talked about from last week, but from different funding bills, so these are an important way to make sure funding for such programs doesn't continue via other channels. Last year, this was the amendment that passed overwhelmingly, surprising many in the intelligence community. And there are some indications that it has even more support this year, as more and more Representatives area aware of intelligence community abuse of surveillance powers. Unfortunately, last year, this amendment was later stripped out, but if support for it continues to grow it'll be impossible to block it forever.

Filed Under: backdoor, backdoor searches, defense appropriations, encryption, funding, nsa, section 702, surveillance, thomas massie, zoe lofgren

How The House Leadership Tried To Misrepresent Amendment That Defunded NSA Backdoor Searches

from the and-yet-it-still-passed-overwhelmingly dept

We already wrote about how Reps. Goodlatte and Ruppersberger misrepresented the milestone amendment put forth by Reps. Massie, Lofgren and Sensenbrenner to defund the NSA's backdoor searches and mandates to put (different kinds of) backdoors in technology. However, we'd heard that the House leadership was so desperate to block the amendment that they put a totally misleading description on it -- and it's true: If you can't see that, it says:

Prohibits funds from being used to fully exploit lawfully collected foreign intelligence information collected under Sec. 702 of the Foreign Intelligence Surveillance Act.

This is, of course, nearly identical to the language that Goodlatte himself used on the floor to urge his colleagues to vote against it. And, of course, as it was when Goodlatte said it, it's tremendously misleading here. It presumes that the information is "lawfully" collected, and also leaves out the rather key point that the amendment was merely blocking the ability to search the communications of Americans collected in this manner without a warrant. In other words, it not only totally misrepresented the amendment, but it purposely painted it in a ridiculous light, pretending that it was about blocking the NSA from doing something perfectly legal.

Given just how laughably misleading the House's own description of the amendment is, it's that much more incredible that the House overwhelmingly voted for the amendment, 293 to 123. In the end, it's a small miracle that it still passed, and by such a large margin -- but it also shows that many more in the House are realizing just how misleading leadership and "NSA-friendly" Representatives are being about these programs.

Filed Under: backdoor search, bob goodlatte, defense appropriations, house leadership, james sensenbrenner, nsa, section 702, surveillance, thomas massie, zoe lofgren

House Overwhelmingly Votes To Slam The Backdoor Shut On The NSA!

from the big-win dept

A week ago, we told you that there were plans for a very important amendment to slam the backdoor shut on the NSA's use of backdoor searches, as well as mandates for backdoors in technology. On Wednesday, we asked you to call your Representatives to support the Amendment. The story got almost no other press. And yet, last night, the amendment passed by an overwhelming majority, 293 to 123. And it was also an overwhelmingly bipartisan vote: Republicans voted for it 135 to 94, and Democrats voted for it 158 to 29. Go take a look at the vote results in the link above -- and if your Representative voted Aye, please go thank them for standing up to protect your privacy and 4th Amendment rights from the NSA. You can use the Sunlight Foundation's new Congressional email system. Separately, a huge shoutout goes to Reps. Zoe Lofgren, Thomas Massie and James Sensenbrenner for putting together this amendment in the first place. As we noted earlier this week, Sensenbrenner's support on the bill is perhaps the most striking, as it's a clear rebuke to House leadership for watering down his own USA Freedom Act.

As we stated, this amendment only fixes two specific problems. It stops the very questionable use of "backdoor searches" of information collected under the Section 702 program. This is the very questionable setup by which the NSA spies on Americans while insisting that they don't actually spy on Americans. It also blocks the NSA from mandating that any technology companies create backdoors in their software or hardware to enable wiretapping (such as the NSA forcing Skype to no longer be encrypted end-to-end).

In many ways, this is more important as a symbolic gesture than for the specifics -- but it should have a much wider impact as well. This is the first time that Congress has overwhelmingly voted to defund an NSA program. Last year's Amash Amendment came very, very close to defunding a different program (the Section 215 bulk records collection program), but by passing by an overwhelming margin, this vote is a pretty big sign that the House (on both sides of the aisle) is not happy with how the NSA has been spying on Americans. As mentioned above, it's also a big slap in the face to the White House and certain members of the House leadership who conspired to water down the USA Freedom Act a few weeks ago, stripping it of a very similar provision to block backdoor searches.

While this particular Amendment is far from a sure thing (it still needs to make it through a Senate equivalent and then the White House), it is quite important as a sign that the House really is fed up with the NSA's surveillance and how the USA Freedom Act process went. It should serve as a warning to the Senate, which is now considering its own version of the USA Freedom Act, that passing a similarly watered down version is simply not acceptable.

This is one step forward in a big process, but it is a big milestone. For the first time since the Snowden revelations began, the House overwhelmingly voted to defund some NSA practices. Once again, if you're an American, I urge you to look over the list of Aye votes, and send a thank you to those Representatives who took a stand for your privacy and against the NSA last night.

Filed Under: backdoor searches, backdoors, defense appropriations, fisa amendments act, jim sensenbrenner, nsa, section 702, surveillance, thomas massie, zoe lofgren

Stop The NSA's Backdoor: Call Congress Today To Support Key Amendment

from the speak-up-now dept

Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping. The Defense Appropriations bill is expected to hit the House floor sometime soon, under open rules, meaning that the amendment in question won't be blocked by the House Rules Committee, as happens on a variety of other bills.

The amendment has powerful bipartisan backing, sponsored by Reps. James Sensenbrenner, Thomas Massie and Zoe Lofgren, along with co-sponsors Reps. Conyers, Poe, Gabbard, Jordan, O’Rourke, Amash, and Holt. Having Sensenbrenner bring out this amendment is a big deal. This amendment would restore at least one aspect of the USA Freedom Act that was stripped out at the last minute under pressure from the White House. Sensenbrenner sponsoring this bill highlights that he's clearly not satisfied with how his own bill got twisted and watered down from the original, and he's still working to put back in some of the protections that were removed. Conyers is a powerful force on the other side of the aisle, whose support for the USA Freedom Act was seen by some as a signal that the bill was "okay" to vote on. Having both of them support this Amendment suggests that neither were really that satisfied with the bill and felt pressured into supporting it.

While this Amendment doesn't fix everything, it is an important chance for members of Congress to show that they really do support protecting Americans' privacy. But they need to know that. Please contact your Representative today to let them know you want them to support this amendment. The EFF and others have set up a website, ShutTheBackDoor.net, to help you contact your official. Please do so today.

Filed Under: backdoors, defense appropriations, jim sensenbrenner, john conyers, justin amash, mandates, nsa, surveillance, thomas massie, zoe lofgren

Does Congress Believe In Protecting Your Privacy? Key Amendment Next Week Is The Test

from the let's-find-out dept

Last month, we wrote about how the USA Freedom Act was completely changed at the last minute in secret. This was even after the bill had been marked up and approved unanimously by two committees (Judiciary and Intelligence). Then the White House (read: NSA) came in and basically changed the bill around entirely, such that some say it's even worse than before. Earlier this week, it even came out that the very author of the USA Freedom Act, Rep. Jim Sensenbrenner, was frozen out of the final negotiations on his own bill, such that the final product looked nothing like the original. While some in Congress tried to warn their colleagues that the bill they were voting on had been changed in secret, many Representatives didn't fully comprehend what happened, and the bill passed.

While the official fight over the bill has now moved to the Senate (and early indications there are not good at all), Representatives in the House have another big chance next week with the giant Defense Appropriations bill. From what we've been hearing, a bipartisan group of Representatives will be introducing an amendment to put in two key measures that will block the NSA from two major abuses involving two different kinds of "backdoors." If Congress is actually serious about protecting the privacy of Americans and making sure the NSA cannot do domestic surveillance, this is the opportunity to prove it.

The first part of the amendment would put back in a bit of the USA Freedom Act that got stripped out at the last minute, stopping what has been referred to as "backdoor searches" of American's data that was collected under Section 702 of the FISA Amendments Act. This is content, not metadata, and the NSA has very wide leverage to search through it once it's been collected. While the NSA is not supposed to search on American's content, a sneaky "rule change" in 2011 gave the NSA the authority to run searches on Americans' content collected via this program, and it includes a lot of content. This is a very big deal. The NSA and its defenders have been using sneaky language to pretend they don't do searches on US persons' content, but that was proved untrue thanks to these backdoor searches. The expected amendment would say that the NSA can't do those searches without a warrant.

In short: here's a chance for Representatives in the House to tell their constituents that they support their privacy and have reminded the NSA how the 4th Amendment works. Will they take that opportunity, or will they continue to allow the NSA to spy on American's emails, files, documents, pictures, etc?

The second part of the amendment is expected to also block a different kind of backdoor: blocking the US government from mandating that any technology include backdoors for law enforcement (beyond what's currently required under the wiretapping CALEA statute). In other words, no more having the NSA go around and tell RSA to use compromised encryption. And no way for DOJ/NSA to force internet service providers to install backdoors into their technology. This is important for a variety of reasons, but most importantly, because any such backdoor will eventually (sometimes quickly) be discovered and exploited by those with malicious intent. In other words, this is another chance for Congress to show that they protect the privacy of Americans, by blocking one of the biggest threats to our cybersecurity: the NSA purposely weakening our technology and services.

This amendment won't fix all of the problems with the NSA (or even most of the problems with the NSA), but it will correct two very big problems, and it's a chance for the House to push back on the secret deal that was negotiated by the NSA at the last minute, which radically change the USA Freedom Act from a bill that reined in the NSA, to one that actually may have opened up more bad practices. If Congress really wants to show they believe in protecting the public, here's a chance. We'll have more details as this process moves forward, including looking at who is willing to step up and protect your privacy, and who's trying to weaken your privacy.

Filed Under: 4th amendment, backdoor searches, congress, defense appropriations, fisa amendments act, nsa, section 702, technology mandates, usa freedom act