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