House Judiciary Spends 5.5 Hours Making Themselves Look Foolish, Without Asking Many Actual Tough Questions Of Tech CEOs

from the what-did-I-just... dept

How was your Wednesday? I spent 5 and a half hours of mine watching the most inane and stupid hearing put on by Rep. David Cicilline, and the House Judiciary Committee's Subcommittee on Antitrust, Commercial & Administrative Law. The hearing was billed as a big antitrust showdown, in which the CEOs of Google, Facebook, Apple and Amazon would all answer questions regarding an antitrust investigation into those four companies. If you are also a glutton for punishment, you can now watch the whole thing yourself too (though, at least you can watch it at 2x speed). I'll save you a bit of time though: there was very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.

If you want to read my realtime reactions to the nonsense, there's a fairly long Twitter thread. If you want a short summary, it's this: everyone who spoke is angry about some aspect of these companies but (and this is kind of important) there is no consensus about why and the reasons for their anger is often contradictory. The most obvious example of this played out in regards to discussions that were raised about the decision earlier this week by YouTube and Facebook (and Twitter) to take down an incredibly ridiculous Breitbart video showing a group of "doctors" spewing dangerous nonsense regarding COVID-19 and how to treat it (and how not to treat it). The video went viral, and a whole bunch of people were sharing it, even though one of the main stars apparently believes in Alien DNA and Demon Sperm. Also, when Facebook took down the video, she suggested that God would punish Facebook by crashing its servers.

However, during the hearing, there were multiple Republican lawmakers who were furious at Facebook and YouTube for removing such content, and tried to extract promises that the platforms would no longer "interfere." Amusingly (or, not really), at one point, Jim Sensenbrenner even demanded that Mark Zuckerberg answer why Donald Trump Jr.'s account had been suspended for sharing such a video -- which is kind of embarrassing since it was Twitter, not Facebook, that temporarily suspended Junior's account (and it was for spreading disinfo about COVID, which that video absolutely was). Meanwhile, on the other side of the aisle, Rep. Cicilline was positively livid that 20 million people still saw that video, and couldn't believe that it took Facebook five full hours to decide to delete the video.

So, you had Republicans demanding these companies keep those videos up, and Democrats demanding they take the videos down faster. What exactly are these companies supposed to do?

Similarly, Rep. Jim Jordan made some conspiracy theory claims saying that Google tried to help Hillary Clinton win in 2016 (the fact that she did not might raise questions about how Jordan could then argue they have too much power, but...) and demanded that they promise not to "help Biden." On the other side of the aisle, Rep. Jamie Raskin complained about how Facebook allowed Russians and others to swing the election to Trump, and demanded to know how Facebook would prevent that in the future.

So... basically both sides were saying that if their tools are used to influence elections, bad things might happen. It just depends on which side wins to see which side will want to do the punishing.

Nearly all of the Representatives spent most of their time grandstanding -- rarely about issues related to antitrust -- and frequently demonstrating their own technological incompetence. Rep. Greg Steube whined that his campaign emails were being filtered to spam, and argued that it was Gmail unfairly handicapping conservatives. His "evidence" for this was that it didn't happen before he joined Congress last year, and that he'd never heard of it happening to Democrats (a few Democrats noted later that it does happen to them). Also, he said his own father found his campaign ads in spam, and so clearly it wasn't because his father marked them as spam. Sundar Pichai had to explain to Rep. Steube that (1) they don't spy on emails so they have no way of knowing that emails were between a father and son, and (2) that emails go to spam based on a variety of factors, including how other users rate them. In other words, Steube's own campaign is (1) bad at email and (2) his constituents are probably trashing the emails. It's not anti-conservative bias.

Rep. Ken Buck went on an unhinged rant, claiming that Google was in cahoots with communist China and against the US government.

On that front, Rep. Jim Jordan put on quite a show, repeatedly misrepresenting various content moderation decisions as "proof" of anti-conservative bias. Nearly every one of those examples he misrepresented. And then when a few other Reps. pointed out that he was resorting to fringe conspiracy theories he started shouting and had to be told repeatedly to stop interrupting (and to put on his mask). Later, at the end of the hearing, he went on a bizarre rant about "cancel culture" and demanded each of the four CEOs to state whether or not they thought cancel culture was good or bad. What that has to do with their companies, I do not know. What that has to do with antitrust, I have even less of an idea.

A general pattern, on both sides of the aisle was that a Representative would describe a news story or scenario regarding one of the platforms in a way that misrepresented what actually happened, and painted the companies in the worst possible light, and then would ask a "and have you stopped beating your wife?" type of question. Each of the four CEOs, when put on the spot like that, would say something along the lines of "I must respectfully disagree with the premise..." or "I don't think that's an accurate representation..." at which point (like clockwork) they were cut off by the Representative, with a stern look, and something along the lines of "so you won't answer the question?!?" or "I don't want to hear about that -- I just want a yes or no!"

It was... ridiculous -- in a totally bipartisan manner. Cicilline was just as bad as Jordan in completely misrepresenting things and pretending he'd "caught" these companies in some bad behavior that was not even remotely accurate. This is not to say the companies haven't done questionable things, but neither Cicilline nor Jordan demonstrated any knowledge of what those things were, preferring to push out fringe conspiracy theories. Others pushing fringe wacko theories included Rep. Matt Gaetz on the Republican side (who was all over the map with just wrong things, including demanding that the platforms would support law enforcement) and Rep. Lucy McBath on the Democratic side, who seemed very, very confused about the nature of cookies on the internet. She also completely misrepresented a situation regarding how Apple handled a privacy situation, suggesting that protecting user's privacy by blocking certain apps that had privacy issues was anti-competitive.

There were a few Representatives who weren't totally crazy. On the Republican side, Rep. Kelly Armstrong asked some thoughtful questions about reverse warrants (not an antitrust issue, but an important 4th Amendment one) and about Amazon's use of competitive data (but... he also used the debunked claim that Google tried to "defund" The Federalist, and used the story about bunches of DMCA notices going to Twitch to say that Twitch should be forced to pre-license all music, a la the EU Copyright Directive -- which, of course, would harm competition, since only a few companies could actually afford to do that). On the Democratic side, Rep. Raskin rightly pointed out the hypocrisy of Republicans who support Citizens United, but were mad that companies might politically support candidates they don't like (what that has to do with antitrust is beyond me, but it was a worthwhile point). Rep. Joe Neguse asked some good questions that were actually about competition, but for which there weren't very clear answers.

All in all, some will say it was just another typical Congressional hearing in which Congress displays its technological ignorance. And that may be true. But it is disappointing. What could have been a useful and productive discussion with these four important CEOs was anything but. What could have been an actual exploration of questions around market power and consumer welfare... was not. It was all just a big performance. And that's disappointing on multiple levels. It was a waste of time, and will be used to reinforce various narratives.

But, from this end, the only narrative it reinforced was that Congress is woefully ignorant about technology and how these companies operate. And they showed few signs of actually being curious in understanding the truth.

Filed Under: antitrust, bias, big tech, david cicilline, greg steube, house judiciary, jamie raskin, jeff bezos, jim jordan, jim sensenbrenner, joe neguse, kelly armstrong, ken buck, lucy mcbath, mark zuckerberg, matt gaetz, politics, sundar pichai, techlash, tim coo
Companies: amazon, apple, facebook, google

Bad Take: Rep. Sensenbrenner's Response Over Internet Privacy Concerns: 'Nobody's Got To Use The Internet'

from the and-nobody's-got-to-vote-for-you-either dept

As we've explained, with Congress voting (and the President signing) a bill to kill off the FCC's broadband privacy rules, things are not necessarily as bad as some might have you believe, but they're still bad. And lots and lots of people seem to be asking their elected representatives why they did this. After all, despite the fact that the vast majority of both Republican and Democratic voters supported the rules (as they did with net neutrality rules as well...), in Congress everyone lined up along party lines over this issue, with Republican members of Congress voting down the rules.

At least some are now facing backlash over this... and they don't seem to be handling it well. Rep. Jim Sensenbrenner seems to have what may be the worst possible take on this after being asked about it. He told a constituent, to maybe just not use the internet if you don't like it. That linked article only has part of the quote, but here's the video of the question and the response:

The questioner points out, correctly, that for individual services, like Facebook, people have a choice of how much they actually use them or what info they give, but for your overall ISP that's not true -- and also notes that there aren't competitive options. Sensenbrenner's answer is... maddeningly nonsensical and wrong, and basically ignores everything the questioner just said to him:

"You know, again, nobody's got to use the internet. And the thing is, if you start regulating the internet like a utility, if you did that right at the beginning, we'd have no internet. Internet companies have invested an awful lot of money in having almost universal services, now. And the fact is, you know, I don’t think it’s my job to tell you that you cannot get advertising through your information being sold. My job, I think, is to tell you that you have the opportunity to do it and then you take it upon yourself to make the choice that the government should give you. And that's what the law has been and I think we ought to have more choices, rather than fewer choices, with the government controlling our everyday lives.”

Now, it's a live situation, and perhaps Rep. Sensenbrenner misspoke. But, no, his press office doubled down on this when someone called it out on Twitter. Amusingly, the press office was trying to parse the difference between "don't use the internet" (as a Tweeter claimed Sensenbrenner said) and "you have a choice" which is... well... not a very big difference, despite his press office claiming it's a "big difference."

The idea that people "have a choice" in using the internet today is laughably out of touch. Indeed, so many things that people rely on today pretty much require the internet. Jobs, transportation, housing and more frequently require the internet. And, to put an even stronger "WTF" on Sensenbrenner's misguided statement: a big part of the problem here is the very lack of choice. The vast majority of Americans have no real choice when it comes to getting true broadband access -- as the very questioner stated, and which Sensenbrenner totally ignored. Thanks to bad policies, we have a non-competitive market, where if you want broadband, you basically have to go with one company, and then it gets access to a ton of data about you.

If Sensenbrenner truly meant what he said here, he'd have been against rolling back the rules. As small ISP boss Dane Jasper recently noted on our podcast, without these privacy rules, it actually gives the giant providers that much more power over the smaller upstarts, and makes it harder for the small providers to compete.

Also, Sensenbrenner is simply flat out wrong with his argument about "if the internet was regulated like a utility at the beginning" because it WAS regulated like a utility at the beginning and it resulted in tons of competition and innovation. Indeed, for most of the internet's early rise it was treated as a utility in terms of things like open access and line sharing. And privacy rules. It's only more recently that that went away.

Also, I have no clue what Sensenbrenner is trying to say when he says: "I don't think it's my job to tell you that you cannot get advertising through your information being sold. My job, I think, is to tell you that you have the opportunity to do it and then you take it upon yourself to make the choice that the government should give you." What does that even mean? First of all, it was the FCC's job, and it did so. What Sensenbrenner did here was to roll back what the FCC said. Second, even with the rules, it never said that "you cannot get advertising through your information being sold." All the rules did was say that ISPs had to tell you about it and offer clear options on how you controlled your data. Third, seriously, what is he saying when he says his job is "to tell you that you have the opportunity to do it and then you take it upon yourself to make the choice that the government should give you." I honestly keep reading that sentence and cannot parse it. The privacy rules were what gave individuals choices. It gave them choices in how their data could be used. Rolling back those rules takes away the choice.

For years, we've pointed out that Congress appears totally and completely out of touch when it comes to basic tech policy -- especially related to the internet. Jim Sensenbrenner's vote and statements on this issue have only confirmed that basic fact.

Filed Under: broadband, competition, fcc, internet, jim sensenbrenner, privacy

Rep. Sensenbrenner Thinks We Can Pay For The Border Wall With More Asset Forfeiture

from the GIVE-UNTIL-IT-HURTS-Act dept

President Trump appears to have thrown his support behind asset forfeiture, even as the issue has begun reaching critical mass in the mainstream media. (It's been thoroughly covered by more libertarian publications like Reason for years.) In addition to not being able to "see anything wrong with it," Trump jokingly suggested he'd ruin the careers of politicians mounting reform efforts.

His recent executive orders appear to back this "gloves off" approach to criminal justice. In addition to singling out immigrants as troublemakers, the orders ask law enforcement officials to take a look around and see if they're being constrained by any state or federal laws. Presumably, any recent forfeiture reform legislation would fall under this heading as it prevents law enforcement agencies from acting in the way they've become accustomed: seize first, convict later... if at all.

With Jeff Sessions in place as attorney general, asset forfeiture appears to be headed for the wrong kind of renaissance. Sessions is a firm believer in the general rightness of taking aways citizens' property and due process simultaneously because, as he sees it, the process only affects people who've "done nothing but deal dope their whole lives."

Now, there's this: Rep. Jim Sensenbrenner is offering up another bill with a clumsily reverse-engineered acronym -- one that could further pervert the incentives of asset forfeiture. (via Watchdog.org)

Today, Congressman Jim Sensenbrenner introduced the Build Up Illegal Line Defenses With Assets Lawfully Lifted (BUILD WALL) Act of 2017 in the House of Representatives.

[...]

This legislation would require the U.S. Attorney General to provide a detailed report on the amount of annual profits brought into the United States by Mexican drug cartels, as well as a study of how the Department of Justice can increase assets seized from such cartels.

Additionally, the BUILD WALL Act would use money forfeited from drug traffickers to fund increased border security on the U.S./ Mexican border. This defense could include a wall, another type of physical barrier, and/or a technology-supported solution. The use of this funding would ease the financial burdens on taxpayers and help build stronger relations between the United States and Mexico while fighting back against drug trafficking in both countries.

While Sensenbrenner's statements mention Mexican drug cartels, the reality is that the billions the cartels make from drug sales are safely back in Mexico and (mostly) out of reach of US law enforcement. That leaves everyone on this side of the border, who can now be viewed as unwilling donors to the cause. If Trump's ever going to be able to, uh, BUILD WALL, he's going to need several billion more dollars than was stated in his original estimate. That's where Mr. and Mrs. Interstate Traveler come into play. A few hundred dollars here and there, and eventually it adds up to real wall-building money.

This means the federal government would be looking to take a larger share of any revenue generated from asset forfeiture in partnerships with local law enforcement. This may not make the local boys happy, but considering many of them use these partnerships to route around local forfeiture restrictions, they can't complain too much about the slightly-smaller cut of the proceeds, when the alternative might be nothing at all.

Lawmakers who support DJT's Folly are casting about in hopes of landing a few billion in wall funding. Mexico has only extended a middle finger in response to the Wall Plan, so it's up to us Americans to make a billionaire's dreams come true. If that means having our cash, cars, and houses seized without accompanying criminal allegations, much less convictions, so be it. The security of our nation depends on our unwilling sacrifice. This wall must be built to ensure our nation is only susceptible to the thieves already in our midst.

Filed Under: asset forfeiture, build wall, civil asset forfeiture, donald trump, immigration, jim sensenbrenner

FBI Director Says Congress Will Fix Phone Encryption 'Problem;' Congress Says 'Bite Us'

from the Bureau-cordially-invited-to-go-fuck-itself dept

James Comey's pleas that something must be done for the [potentially-molested] children of the United States seem to be falling on mostly deaf ears. Mostly. After realizing that there's nothing in current laws that compels Google and Apple to punch law enforcement-sized holes in their default encryption, Comey has decided to be the change he wishes to force in others.

Having set the stage with a Greek chorus comprised of law enforcement officials chanting "iPhones are for pedophiles," Comey is now making overtures to legislators, targeting an already-suspect law for further rewriting: CALEA, or the Communications Assistance for Law Enforcement Act. As it stands now, the law specifically does NOT require service providers to decrypt data or even provide law enforcement with the means for decryption. Up until this point, the FBI's director seemed to consider Congressional support a foregone conclusion.

Last week, FBI director James Comey suggested that encryption "threatens to lead all of us to a very dark place" and suggested that if Apple and Google don't remove default encryption from iOS and Android then "Congress might have to force this on companies."

Now, Congress members are firing back at Comey, reminding him that Congress doesn't have to do shit.

"To FBI Director Comey and the Admin on criticisms of legitimate businesses using encryption: you reap what you sow," California Republican Rep. Darrell Issa tweeted. "The FBI and Justice Department must be more accountable—tough sell for them to now ask the American people for more surveillance power."

Rep. Zoe Lofgren estimates Comey's legislative "fix" has a "zero percent" chance of passing. This tepid statement is the warmest response Comey's received so far.

“It's going to be a tough fight for sure,” Rep. James Sensenbrenner (R-Wis.), the Patriot Act’s original author, told The Hill in a statement.

Of course, in this anti-surveillance climate, there aren't too many representatives willing to openly support toxic rewrites like the one Comey desires. But give it a few more years and anything's possible. This is the time to start watching upcoming bills closely. It's not completely unheard of for unpopular legislation to be tacked onto other bills whose popularity (or complete mundanity) gives them a higher chance of passing.

Comey also still seems to think that it's simply a matter of wording. He's done all he can to portray the encrypted future as a nightmarish world where child abusers, drug dealers and terrorists run amok while law enforcement fumbles around in the dark. This clumsy propaganda machine has done little to soften up the public or its representatives. Now, he's shifting gears, pretending that it's not a "backdoor" he's seeking, but rather some sort of magical doggie door for law enforcement.

“We want to use the front door with clarity and transparency,” he said.

How that word picture converts to real life remains to be seen. Comey doesn't seem to have any idea but believes the answer runs through an amended CALEA. The good news is that no one's in any hurry to help him out. The FBI (and much of law enforcement) is so used to getting what they want (as well as being completely absent when it's time to reap what's been sown) with minimal resistance that this pushback has forced them to think on their feet -- something they're clearly not comfortable doing. Between talk of "golden keys" and the hilarious assumption that Congress would simply do as it's told, the FBI's anti-encryption fit-pitching is looking more ridiculous by the moment.

Filed Under: darrell issa, encryption, fbi, james comey, jim sensenbrenner, phones, 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

House Passes Fake USA Freedom Act; Fight Turns To The Senate To Fix A Broken Bill

from the losing-hope dept

As explained earlier, due to pressure from the White House and NSA's supporters in Congress, what could have been real NSA reform was completely changed at the last minute, in secret. The bill, which was substantially different than what both the Judiciary and Intelligence Committees unanimously approved, went to a floor vote and passed 303 to 121. It seems notable that many of the no votes were from people who felt the bill didn't do enough to protect the public from the surveillance state, rather than NSA fanboys worried about reform. Basically, the NSA and its supporters hijacked the reform process and got a bill they wanted, rather than one that actually protects the American public.

Rep. Jim Sensenbrenner, who was the original sponsor of the bill admitted that he was disappointed in what his bill eventually turned into -- though he still voted for it:

“Let me be clear: I wish this bill did more,” Sensenbrenner said during floor debate Thursday. “To my colleagues who lament the changes, I agree with you. The privacy groups who are upset about lost provisions, I share your disappointment.”

There had been some hope that Rep. John Conyers might flip his vote and vote against it, but he not only voted for it, he falsely claimed that this bill would "end domestic bulk collection across the board." It does nothing of the sort. The folks who really understood this stuff were much more direct in saying what a bad bill this is. Last night, I had a chance to speak to Rep. Zoe Lofgren, who still hoped that there was a chance her colleagues would recognize how the bill had been changed in secret, and how problematic that was -- and she tried to fight the good fight on the floor this morning telling her colleagues (unlike what Conyers claimed) that this "is a bill that will actually not end bulk collection, regrettably." Furthermore, she tried to remind people that this was not the bill that was voted out of committee, to highlight the last minute changes.

Unfortunately, those who aren't paying close attention don't seem to care. They just want to be able to go back to their districts and claim they did something to "reform" the NSA, when they could have done much more. But this bill doesn't do that. As Lofgren noted on the floor: "If we leave any ambiguity at all, we have learned that the intelligence community will drive a truck through that ambiguity." And this bill leaves in a ton of ambiguity. On purpose. That was put in at the last minute, with help from the White House.

Either way, the fight now shifts over to the Senate, who will have to approve their own version. Senator Leahy has a version of the bill, but he will face fierce opposition from Senator Feinstein, and the support for reform in the Senate has always been weaker than in the House anyway. Still, some hope that a strong enough public outcry may pressure the Senate into at least something better than the House version.

Filed Under: bulk collection, congress, house, jim sensenbrenner, john conyers, nsa, section 215, surveillance, usa freedom act, zoe lofgren

USA Freedom Act Passes Out Of House Judiciary Committee With Some Good And Some Bad

from the it's-meh-all-around dept

As expected, the USA Freedom Act has been passed out of the House Judiciary Committee today, moving the bill forward in a process that will likely bring some version of it to the House floor in the next few weeks. The markup include a variety of amendments, some dopier than others. One generally good amendment was added, bringing back the transparency provisions for tech companies to reveal some information about government requests they receive. Unfortunately, this wasn't as strong as it should be, keeping very wide "bands" under which the tech companies have to obfuscate how many requests they actually receive and how many users are impacted. There was some push to tighten the bands, and that is likely to continue, but it's unlikely to change. Late yesterday, the manager's amendment also added an important definition for "specific selection term" -- which if left totally undefined would easily lead to abuse. The definition is... not great. It can still be abused, but not as readily as when there was no definition.

The other major problem is that this new version strips out the attempt to close the loophole that allowed backdoor searches on Americans without a warrant. This is a big deal as the original version would have closed that loophole. The NSA apparently lobbied hard to remove it, and when Rep. Zoe Lofgren tried to amend this new version to bring back the ban, it was rejected quickly. In other words, the NSA (who has pretended this is no big deal) likely uses this "loophole" quite a bit and doesn't want to lose it.

That said, the bill is clearly a step forward, and both EFF and CDT have cautiously praised the House Judiciary Committee for moving forward on the bill, while still asking for more civil liberties protections and greater transparency.

The real question, though, is what will the House Intelligence Committee do with the bill tomorrow. As we noted earlier today, after fighting it for months, Rep. Mike Rogers has now indicated he's more comfortable with the (weakened) bill, and will be doing a dual markup of both his own bill and this new USA Freedom Act, leading many to suspect that some sort of deal has been reached to effectively incorporate parts of his (bad) bill into this USA Freedom Act -- potentially weakening it even further. We'll find out in a few hours.

Filed Under: bulk data collection, house intelligence committee, house judiciary committee, jim sensenbrenner, mike rogers, nsa, surveillance, usa freedom act

Looks Like 'Compromise' Has Been Reached On NSA Reform Bills

from the and-that-may-not-be-a-good-thing dept

On Monday, we noted that two different competing NSA reform bills had started lurching forward in Congress, though in looking through the Manager's Amendment of the "good" bill, it quickly became clear that it had been very watered down, such that it really wasn't that "good" any more. Late last night, there was a report coming out that the NSA's number one defender, Rep. Mike Rogers, was actually much happier with the USA Freedom Act. In other words, it had been watered down so much that even Mike Rogers was willing to say it was a good bill.

In a dramatic change of tone, Rep. Mike Rogers, the chairman of the House Intelligence Committee, praised a bill in the House Judiciary Committee that would sharply curb the National Security Agency's surveillance powers. His remarks suggest that the powerful lawmaker may be more willing to vote for tougher reforms than previously anticipated.

Rogers and other national security hawks have spent weeks arguing that the USA Freedom Act, the most aggressive NSA reform bill under consideration in Congress, would remove tools that the government needs to track phone calls by foreign terrorists. Rogers, a staunch NSA supporter, is the sponsor of another bill that would codify many of the surveillance practices opposed by privacy advocates, such as the dragnet collection of records.

As we speak, the House markup on the bill is ongoing. However, in a twist, tomorrow's "competing" markup for the FISA Transparency and Modernization Act -- which is Rogers and Rep. Dutch Ruppersberger's "competing" bill -- has now added a markup of the USA Freedom Act to the agenda. That means that a deal has been made, and if Rogers is willing to add USA Freedom to his committee's schedule, it means that the "deal" is one that favors the NSA and not the public.

That is not to say that the USA Freedom Act does nothing. It actually does a few things to limit the NSA, but really does not tackle the largest problems. There was a lot of good stuff in the earlier version of the bill (which still didn't go far enough on its own) and now it's significantly weaker. So, rather than fixing the overall mess, the new USA Freedom Act makes some small fixes while leaving all sorts of problems.

Filed Under: bob goodlatte, bulk collection, bulk records, compromise, congress, dutch ruppersberger, jim sensenbrenner, mike rogers, nsa, surveillance, usa freedom act

NSA Reform: Do You Support The Lesser Of Two Evils, Or Hope For Something Better?

from the not-a-good-situation dept

We wrote yesterday about Congress suddenly lurching forward with two competing NSA reform bills: the USA Freedom Act from Rep. Jim Sensenbrenner and the House Judiciary Committee and the FISA Transparency and Modernization Act from Reps. Mike Rogers and Dutch Ruppersberger and the House Intelligence Committee. As we noted, the USA Freedom Act -- which had been the general consensus choice as the best bill for actually stopping the worst of the worst NSA surveillance (while still not fixing everything) -- was actually being watered down by Sensenbrenner's manager's amendment.

Marcy Wheeler has been digging in and highlighting just how badly the bill has been weakened, and has now started calling it the USA Freedumb Act, noting that it's stripped out nearly all of the good stuff, basically wiping out most of the protections for you and me, but making sure that the telcos are well protected from any lawsuits that might emerge over them handing all of our info over to the government. The bill also wipes out the transparency requirements that the tech companies had pushed strongly for.

The problem then, becomes something of a political one. One of these two bills is likely to move forward, and both are pretty bad at this point, though USA Freedom is marginally better. Do you support a marginally better bill in the hopes of blocking a really bad bill? Or do you hope (with little chance of it happening) to block both bills and pray for a magical third solution that actually does something useful? It's a pretty blech situation all around.

One of the tricky parts of bills like these, which adjust the language in existing bills, is that merely reading the bills alone isn't nearly enough, because they're amending existing language, and pointing to various places. You have to put it all together to figure out what's really going on. Wheeler, again serving a tremendously important role, is attempting to do that, showing how Section 215 would look under the manager's amendment under USA Freedom. This suggests that a big problem is the lack of some key definitions -- with "selection term" being one which might actually create a loophole for the NSA to drive a surveillance barge through.

One hopeful idea is that during tomorrow's markup, someone can actually get some amendments through that actually defines these undefined terms in a way that actually limits the NSA's powers (and potentially bringing back some of the transparency requirements). Right now it's not clear if that will happen, though there's typical political horse trading going on in the back rooms. Still, a good definition (and there's a chance that any definition would be bad...) would go a long way towards taking the USA Freedumb Act back to being the USA Freedom Act.

Filed Under: dutch ruppersberger, fisa transparency and modernization act, jim sensenbrenner, mike rogers, nsa, surveillance, usa freedom act