Bill Introduced To Repeal Patriot Act And Prevent The Government From Demanding Encryption Backdoors

from the a-legislator-can-dream,-can't-he? dept

Since the Snowden leaks began, there have been several efforts made -- legislative and administrative -- in response to the exposure of the NSA's domestic surveillance programs. Some have been real fixes. Some have been fake fixes. Others have targeted the thing the NSA desires even more than seemingly limitless access to data from all over the world: funding.

But none of these, not even the President's weak reform efforts, have managed to take hold. Neither will this, most likely, although you have to admire the audacity of the bill's authors, Reps. Thomas Massie and Marc Pocan.

The bill would completely repeal the Patriot Act, the sweeping national security law passed in the days after Sept. 11, 2001, as well as the 2008 FISA Amendments Act, another spying law that the NSA has used to justify collecting vast swaths of people's communications through the Internet.

If anything's due for a complete revamp, if not a complete repeal, it's the Patriot Act. It wasn't even good legislation back when it was passed. At best, it was "timely," which is a term that gives the rushed, secretive, knee-jerk legislation far more credit than it deserves. Pocan and Massie's (the latter of which has just introduced a new phone-unlocking bill with Rep. Zoe Lofgren to replace the bad one passed by the House in 2014) "Surveillance State Repeal Act" doesn't waste any time "tinkering around the edges."

Not only would the bill repeal the law, it would reset anything (amendments/additional government powers) brought into force by the Patriot Act and the FISA Amendments Act of 2008. On top of that, it would demand the immediate deletion of tons of data from the NSA's collections.

DESTRUCTION OF CERTAIN INFORMATION.—The Director of National Intelligence and the Attorney General shall destroy any information collected under the USA PATRIOT Act (Public Law 107-56) and the amendments made by such Act, as in effect the day before the date of the enactment of this Act, concerning a United States person that is not related to an investigation that is actively ongoing on such date.

The bill, oddly, also describes a path towards FISA Judge For Life positions.

TERMS; REAPPOINTMENT.—Section 103(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(d)) is amended— (1) by striking ‘‘maximum of seven’’ and inserting ‘‘maximum of ten’’; and (2) by striking ‘‘and shall not be eligible for re-designation’’.

Which is fine (not really) if you like the judges already appointed. But this is the sort of thing that leads to the permanent appointment of judges favored by either side of the surveillance question. And so far, presidential administrations have come down in favor of domestic surveillance. Removing the term limits just encourages the appointment of permanent NSA rubber stamps.

The bill creates a warrant requirement for the acquisition of US persons' data under the FISA Amendments Act and Executive Order 12333. It also expressly forbids a government mandate for encryption backdoors, although the first sentence of this section seems to be a rather large loophole.

Notwithstanding any other provision of law, the Federal Government shall not mandate that the manufacturer of an electronic device or software for an electronic device build into such device or software a mechanism that allows the Federal Government to bypass the encryption or privacy technology of such device or software.

If this bill somehow manages to pass a round or two of scrutiny, language tweaks will certainly be requested -- possibly leading to a complete subversion of the bill's intent. But that's a huge "if." Very few legislators have the stomach to gut the Patriot Act or the FISA Amendments Act. Many will be happy to entertain smaller fixes, but most won't be willing to essentially strip the NSA of its domestic surveillance powers. No one wants to be the "yea" vote that's pointed to in the wake of a terrorist attack and only a few more are actually willing to go head-to-head with the intelligence agency.

Filed Under: congress, fisa, fisa amendments act, marc pocan, nsa, patriot act, surveillance, thomas massie